The Issue The issues presented by this case concern the question of whether the Respondent, State of Florida, Department of Health and Rehabilitative Services, has exhausted all treatment for the Petitioner, Edward G. LeGer, through available sex offender programs administered by the Respondent. See Section 917.20, Florida Statutes (1977).
Findings Of Fact The Petitioner submitted a "Petition for Administrative Determination" to the State of Florida, Department of Health and Rehabilitative Services. The Petition was received by the Division of Administrative Hearings on November 9, 1981, as transmitted by the State of Florida, Department of Health and Rehabilitative Services. The Department had requested the Division to conduct a formal hearing in keeping with Subsection 120.57(1), Florida Statutes. The hearing was conducted on December 16, 1981. In the course of the final hearing the Petitioner testified and offered as witnesses, Larry Carroll and James Thaddeus Rogers, participants in the sex offender program at Florida State Hospital in Chattahoochee, Florida. The Petitioner submitted two exhibits, composite in nature, which were admitted. Respondent called as witnesses, Robert Alcorn, Clinical Director for the Mentally Disordered Sex Offender Program at Florida State Hospital; Michael Pomeroy, Clinical Psychologist at Florida State Hospital and Connie Smith, Clinical Social Worker at Florida State Hospital. Respondent presented no exhibits. At all times pertinent to this proceeding, Petitioner has been in the custody of the Respondent, in keeping with the orders of Court and the authority of Chapter 917, Florida Statutes (1977). During that time, the Petitioner has resided at the Florida State Hospital, Chattahoochee, Florida, where he has undergone treatment in the hospital program for the benefit of mentally disordered sex offenders. Although the Petitioner has been subjected to a full range of treatment opportunities, his progress in the recognition of and ability to deal with the underlying conditions which caused him to be placed in this program have reached their zenith. In the face of these circumstances, the Respondent has made a preliminary determination that it has exhausted treatment for the Petitioner, through the program in which he is enrolled. Additionally, it has been concluded that similar programs within the State of Florida do not offer other opportunities for progress. These opinions were made known to the Petitioner and when confronted with this information, the Petitioner requested the formal hearing which is the subject of this Recommended Order. LeGer was committed to the custody of the Respondent on February 27, 1979, the Court having found him to be a mentally disordered sex offender within the meaning of Chapter 917, Florida Statutes (1977). He was received into the program at the Florida State Hospital in Chattahoochee, Florida, on April 23, 1979, and has undergone treatment beginning on that date. The objectives of the treatment program were to deal with LeGer's long standing sexual deviation, which specific condition is pedophilia and his associated difficulty with chronic alcoholism, until he no longer evidenced himself to be a menace to society in terms of sexual "acting out" or until it was concluded that he could no longer be treated for these difficulties. (The patient also had undergone treatment as a sex offender in the 1960's.) The program at Florida State Hospital has as its central focus the utilization of group therapy with adjunctive programs in recreational and occupational therapy, and this treatment regime relies heavily on a patient's self-motivation. Petitioner's Composite Exhibit No. 1 is constituted of a series of progress reports or clinical summaries of Petitioner's condition during the course of his treatment. As can be seen, the patient has made significant progress in dealing with his condition of alcoholism and his general conduct and demeanor has been exemplary; however, he has gained little insight into his sexual condition of pedophilia. This is borne out by the patient's beliefs that the staff session of September 16, 1981, in which he expressed his firm belief that he had reached maximum benefits from the treatment program and felt that he was no longer a risk to commit the sexual offenses, in that he was aware of the consequences of his deviant behavior for himself and others. This belief is erroneous, in that the staff report and the testimony given by staff members in the course of the hearing lead to the conclusion that the patient has not gained sufficient insight and understanding as to his deviant sexual behavior, sufficient to deter him from committing future sexual offenses. Michael Pomeroy, the patient's primary therapist from May, 1980, through mid-January, 1981, by his testimony, established the fact that the Petitioner had never been open enough with Pomeroy for Pomeroy to gain an understanding about what the patient's underlying problems were. It was through the witness Pomeroy's review of the history of the case that Pomeroy learned of the patient's problems with alcoholism and pedophilia related to young females. Pomeroy correctly describes the patient's participation in the program to be superficial, with the exception of the alcoholic rehabilitation aspects of the treatment and care. In dealing with Pomeroy, the patient was evasive and his behavior evidenced a manipulative demeanor (con or criminal attitude). In dealing with the question of his sexual problem, the patient simply would tell Pomeroy that he, the patient, wanted treatment. Pomeroy found the patient to be of the persuasion that the patient did not feel that he had a problem other than alcoholism, which had been overcome, and having overcome the alcoholism, all other problems were taken care of. Pomeroy found LeGer to have no understanding of what caused him to do his sexual acting out or what to do about that acting out in the future. These attitudes by the patient continued through the time of the final hearing, according to Pomeroy. In view of the lack of insight and no clear changes in attitude during the course of treatment and the resulting belief by the Petitioner that he does not have a problem of sexual deviance, Pomeroy's testimony establishes the fact that the Respondent is unable to treat the patient's pedophilia and the fact that his condition of pedophilia still presents a danger to society. Connie Smith, the patient's therapist from January, 1981, to the present, identified the most recent analysis by the staff of the problems presented by the patient's clinical profile. Those problems are: (1) gaining insight and understanding into deviant sexual behavior; (2) defensiveness and evasiveness with regard to relating feedback about himself and events directly related to his sexual problems; (3) exploring his needs to be over attentive to the needs and problems of others; and (4) exploring his dependence on alcohol. In these areas, Smith has found that the patient has not progressed in dealing with his sexual deviation and tends to over exaggerate his progress in that area. LeGer tells the therapist that he will do what she wishes him to do to participate in the program; however, he does not believe that he needs the therapy. (This comports with the testimony which LeGer gave in the course of the hearing. Notwithstanding this belief, he stated that he wanted to stay six months more in the program and that he would have done better had the therapy been more intense. The witnesses Carroll and Rogers agreed with this latter remark by the Petitioner and also expressed a belief that the patient had successfully completed the program, opinions not supported by the other evidence and not accepted by this Hearing Officer.) According to Smith, when LeGer has occasionally discussed the event which placed him in the program on this occasion, i.e., sexual battery on a minor female, he has discussed it in a superficial way and tended to place some blame on the victim. Finally, Smith agrees with Pomeroy's perception that the patient does not have sufficient insight into his problem and continues to meet the definition of a sex offender within the meaning of Chapter 917, Florida Statutes, and will not make progress by additional stay in the program. These perceptions are well founded. The Clinical Director of the Florida State Hospital Sex Offender Program, Robert H. Alcorn, presented the Petitioner's situation through a staffing conference of program officials in the other sex offender programs offered by the Respondent. This occurred on November 2, 1981, and it was the feeling of the other program officials that they would not be able to assist the Petitioner further, and in that sense, as in the situation at Florida State Hospital, had exhausted treatment for the Petitioner's underlying sexual deviance. The Respondent has exhausted all appropriate treatment for the patient's sexual problem, but that treatment has not been totally successful and the patient continues to be a sexual menace and there is a likelihood that the patient would commit other sexual crimes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That a final order be entered by the Department of Health and Rehabilitative Services finding that it has exhausted all appropriate treatment for Edward G. LeGer in its sex offender programs and that said Edward G. LeGer be returned to the committing court for further disposition. DONE and ENTERED this 13th day of January, 1982, in Tallahassee, Florida. CHARLES C. ADAMS 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 13th day of January, 1982. COPIES FURNISHED: Edward G. LeGer Florida State Hospital Chattahoochee, Florida 32324 Ted Mack, Esquire Florida State Hospital Chattahoochee, Florida 32324
The Issue The issue presented is whether Respondent HealthSouth Corporation engaged in an unlawful employment practice as to Petitioner Mary A. King, and, if so, what relief should be granted to Petitioner, if any.
Findings Of Fact Petitioner Mary A. King is a black female born on April 5, 1952. Respondent HealthSouth Corporation operates HealthSouth Rehabilitation Hospital of Tallahassee, located in Tallahassee, Florida. Petitioner was initially employed by HealthSouth in 1995 as a nurse tech or certified nursing assistant (CNA) in the nursing department. In 1998 she suffered a back injury while performing her regular CNA duties. She received treatment for the injury and returned to work with lifting limitations placed on her by her doctor. The limitations were inconsistent with her duties as a CNA and are still in effect. In 1999 Petitioner requested a transfer to the position of patient transporter aide due to her lifting limitations and concerns over her back injury. Her transfer request was granted, and she began to work as a patient transporter in the physical therapy department. She was pleased with the transfer. As a patient transporter, Petitioner was responsible for transporting patients to and from the locations in the hospital where they received treatment. She was not directly involved in the administration of treatment to patients. Subsequently, Petitioner was transferred from the physical therapy department to the occupational therapy department. Her position and job duties remained the same; the only change was in the types of patients Petitioner transported. On September 1, 2004, new federal regulations went into effect. These regulations directly impacted all in-patient rehabilitation hospitals, limiting the types of patients that HealthSouth could accept. The new regulations had a severe impact on HealthSouth, causing a dramatic drop in the patient census. The 76-bed facility had an average daily census of 65, and occasionally up to 76, prior to the effective date, but only a patient census in the 30s and 40s after the effective date of the new regulations. With the dramatic drop in patient census, HealthSouth had to dramatically reduce costs. Lynn Streetman, Administrator of HealthSouth Rehabilitation Hospital of Tallahassee, looked at a variety of ways in which costs could be reduced, including re- structuring contracts with outside vendors, reducing orders of medical supplies, reducing or substituting pharmaceutical orders, discontinuing the use of P.R.N. or as-needed staff, and, ultimately, reducing the workforce at the hospital. Streetman began reducing the workforce through attrition. As positions at the hospital became vacant, they were not filled if they were not critical to the functioning of the hospital and if there would not be a negative impact on patient care. Although reducing the workforce through attrition helped, more workforce reductions were necessary to respond to the hospital's declining patient census. In order to determine what positions to eliminate, Streetman preliminarily reviewed all positions throughout the facility and developed a list of positions she thought could be eliminated with minimal impact on the hospital's operations. The criteria she used included whether the position was a clinical or non-clinical position, whether the position was essential to the operation of the hospital or merely a luxury position, whether the duties of the position could be effectively absorbed by other positions in the hospital, and what impact the elimination of the position would have on patient care. Streetman next met individually with members of the hospital's senior management team to discuss the positions in their respective departments that she had preliminarily identified as appropriate for elimination. She obtained input from the team members as to whether it would be appropriate to eliminate those positions and what impact their elimination would have on the functioning of their respective departments. After she met with the team members to discuss the reduction in force and consider their input, Streetman made the decision to eliminate 13 positions at the hospital in December 2004 and January 2005. Three positions were eliminated in December, and ten were eliminated in January. Streetman was the person responsible for making the final decision about which positions to eliminate. Of those employees affected by the reduction in force, 6 were black and 7 were white. Of those employees affected by the reduction in force, 6 were over 40 years of age, and 7 were under 40 years of age. Each employee whose position was eliminated as a part of the reduction in force was informed that he or she would be eligible to purchase insurance benefits through COBRA for up to 18 months after his or her employment with the hospital ended, each was paid for any accrued paid time off, and each eligible employee received severance benefits in accordance with an identical formula: one week of pay for every year of service up to a maximum of ten years. With the exception of a part-time employee who was not eligible, all employees affected by the reduction in force received benefits, paid time off payments, or severance payments in accordance with these policies. One of the positions selected for elimination was that of patient transporter. When Streetman was employed by HealthSouth, there had been three patient transporters. Two of the three positions had already been eliminated through attrition, and Petitioner was the only remaining patient transporter. Since Petitioner's position was eliminated, HealthSouth has not hired anyone as a patient transporter. Petitioner's position was selected for elimination because it was not essential to the operation of the hospital, was not responsible for any direct patient care, and was a luxury position for the facility. As verification that the elimination of Petitioner's position would not have a negative impact on the level of patient care at the hospital, Streetman considered that therapists at the hospital had already been assisting in the transportation of patients to and from treatment and that the previous reduction of two patient transporters through attrition did not negatively impact patient care at the hospital. Petitioner's job duties were absorbed into the daily work routine of therapists in the outpatient therapy department. Therapists simply transported their own patients rather than have Petitioner (and the other transporters who had previously been phased out through attrition) perform this function for them. Petitioner was informed of the decision to eliminate her position on November 30, 2004, by Donna Crawford, Director of Clinical Services, and Cindy Cox, Occupational Therapy Team Leader. Crawford informed Petitioner that Petitioner's position was being eliminated, that Petitioner would receive severance pay in accordance with her years of service, that Petitioner would be paid for all of her accrued paid time off, and that Petitioner was welcome to apply for any other open position at the hospital for which she was qualified. Crawford also told her that Petitioner was welcome to discuss any open positions with Jackie Chaires, Human Resources Director at the hospital. Petitioner was paid 360 hours of severance pay (nine weeks pay for nine years of service), was compensated for all accrued paid time off, and was sent a letter informing her of her right to purchase insurance under COBRA for up to 18 months after her employment with Respondent had ended. Petitioner also applied for and received unemployment benefits as a result of her job being eliminated. After Crawford advised her that her position had been eliminated, Petitioner went to talk with Jackie Chaires, a black female. Petitioner told Chaires that she did not understand why she had been laid off and asked about any available positions. During that conversation, in an attempt to console Petitioner according to Chaires' affidavit but as an act of discrimination according to Petitioner's testimony, Chaires suggested that Petitioner could also retire and let Petitioner's husband take care of her. At no time did Chaires suggest that Petitioner's husband's situation, his income, or Petitioner's age were factors in HealthSouth's decision to eliminate her position as part of its reduction in force. Moreover, Chaires was not involved in any way in the selection of Petitioner's position for elimination. At some point after being informed that their positions were eliminated, Petitioner, along with Kim Spencer, another employee affected by the reduction in workforce, inquired as to whether there were positions available in the nursing department. However, there were no positions available in that department, and both Petitioner and Spencer were informed that their requests could not be accommodated. Spencer is a white female. HealthSouth has a written policy prohibiting employees from giving letters of recommendation. At some point after being informed that her position was eliminated, Petitioner asked Cynthia Cox, her direct supervisor, for a letter of recommendation. Cox agreed to give her one even though she was uncertain as to the correct procedure, but after ascertaining from the human resources department that a recommendation would be against corporate policy, Cox told Petitioner she could not give her the letter and told Petitioner that it was against corporate policy. That policy is clearly stated in the hospital's employee handbook, which Petitioner had been given. At no time prior to her filing her charge of discrimination with the Florida Commission on Human Relations did Petitioner inform any of her supervisors that she felt she was being discriminated against in any way based on either her race or her age. Patsy Kitchens is a white female who is the same age as Petitioner. HealthSouth terminated her employment at the same time as it terminated Petitioner's employment as part of the same reduction in force.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Petitioner failed in her burden of proof and dismissing the petition filed in this cause. DONE AND ENTERED this 24th day of March, 2006, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT 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 24th day of March, 2006. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Mary King 1039 Idlewild Drive Tallahassee, Florida 32311 L. Traywick Duffie, Esquire Wesley E. Stockard, Esquire Hunton & Williams, LLP Suite 4100 600 Peachtree Street, Northeast Atlanta, Georgia 30308-2216
The Issue This order concerns the Respondent's motion to dismiss this action with prejudice premised upon lack of jurisdiction of this forum specifically, it is alleged that the Petitioner does not have standing to bring an action under Section 120.57, Florida Statutes, in view of the fact that he is not considered to be a party within the meaning of Subsection 120.52(10)(d) Florida Statutes. The Respondent also asserts that the Petitioner has no legally recognizable substantial interest to be determined in this action, as would be required to establish standing to proceed under Section 120.57, Florida Statutes.
Findings Of Fact On April 17, 1980, the Petitioner, David W. Cochran, was convicted and sentenced for the offense of lewd assault on a child, a violation of Section 800.04, Florida Statutes. This conviction and sentence was entered by the Circuit Court, Criminal Division, Polk County, Florida, in Case No. CF79-1761. The Petitioner was given a ten year sentence in the State prison for that offense, with the recommendation that the Petitioner be treated as a mentally disordered sex offender. In keeping with the terms and conditions of Section 917.012, Florida Statutes (1979), the Petitioner was evaluated by the State of Florida, Department of Corrections and the State of Florida, Department of Health and Rehabilitative Services, and was placed in the mentally disordered sex offender program at the Florida State Hospital, Chattahoochee, Florida, by process of transfer from his confinement in the prison to the stated placement as an offender. At the time of the motion hearing in this cause, the Petitioner was residing at Florida State Hospital, Chattahoochee, Florida, in the sex offender program, awaiting transport by the State of Florida, Department of Corrections, back to an appropriate corrections facility, it having been determined by the State of Florida, Department of Health and Rehabilitative Services that it had exhausted all appropriate treatment for the said offender. The motion to dismiss had been occasioned in face of a petition for administrative determination which had been filed by the Petitioner with the Respondent and referred by the Respondent to the Division of Administrative Hearings for disposition. That petition calls for a determination on the question of exhaustion of treatment of the Petitioner in the aforementioned sex offender program and as stated in the Issues provision of this Recommended Order, the Respondent took the position that the hearing which the Petitioner requested pursuant to Subsection 120.57(1), Florida Statutes, could not be granted to the Petitioner for the reasons set forth in the issues statement.
Findings Of Fact Petitioner applied to the Board of Medicine for licensure by endorsement as a physician in the State of Florida. The Board of Medicine is the regulatory agency in the State of Florida charged with the duty to regulate the practice of medicine in the state, including the licensure of physicians. Petitioner has been in psychotherapy as a patient of Dr. Stanley G. Garner since 1986. Dr. Garner was qualified and accepted as an expert witness in the speciality of psychiatric medicine. Petitioner began psychotherapy with Dr. Garner and has remained in therapy with him on a voluntary basis. The purpose and emphasis of Petitioner's psychotherapy has been the identification and resolution of ongoing family problems, including marital and divorce issues, which have been imposed upon an earlier history of being raised in a dysfunctional family. Petitioner was very upset when she first saw Dr. Garner in 1986 due to events that resulted in protracted divorce proceedings. The purpose of Petitioner's therapy has never been to assess or ensure Petitioner's fitness to practice medicine since this was never a therapeutic issue to either the Petitioner or to Dr. Garner. Petitioner's psychotherapy has been directed towards improving her comfort, happiness, and quality of life. Dr. Garner has spent over 400 hours in therapy with Petitioner and has diagnosed Petitioner as having Dysthymia, which is a fairly recent term for a depressive condition that used to be called neurotic depression or depressive neurosis. Dysthymia was described by Dr. Garner as being an extremely common condition and one that is shared by many of his physician patients without impairment of their ability to perform as physicians with reasonable care and skill. According to the Diagnostic and Statistical Manual of the American Psychiatric Association, the diagnosis of Dysthymia has to include the presence of at least two of the following conditions while depressed: (1) poor appetite or over eating, (2) insomnia or hypersomnia, (3) low energy or fatigue, (4) low self esteem, (5) poor concentration or difficulty making decisions, (6) feelings of hopelessness. Dysthymia does not usually lead to sudden changes in personality or behavior, and Dr. Garner has noted no sudden changes in Petitioner's personality during the course of his treatment of her. Petitioner's application reflected that she had undergone psychotherapy as a patient of Dr. Garner since 1986. In response to the application, Respondent required information from Dr. Garner as to Petitioner's treatment. By his letter of July 17, 1991, Dr. Garner provided Respondent with historical information as to Petitioner's condition and her psychotherapy and advised Respondent, in pertinent part, as follows: Dr. Shienvold has been in psychotherapy with me, on a regular basis, since 9/13/86 for treatment of her depressive disorder. She is currently being seen weekly in individual psychotherapy and weekly in group psychotherapy. The frequency of her visits has varied during the course of her treatment. Currently, she is taking Prozac 20 mg. each morning; this medication seems to be helping her cope with the many pressures of her current life situation. She was not on medication during most of her time in therapy. * * * Dr. Shienvold's diagnosis is Dysthymia (300.40 DSM III-R). She has never shown any evidence of a psychotic disorder and has no history of, nor propensity for, substance abuse. Her prognosis is excellent, but she definitely needs ongoing psychotherapy for the foreseeable future. There are still many current vocational, financial, familial, and parental pressures which impede her more rapid progress. I have no doubt, however, that she will overcome these obstacles and continue to be a dedicated and hard working physician. This applicant for medical licensure, in my professional opinion, will certainly be able to practice medicine with reasonable skill and safety. Given her very high level of intelligence and her rapidly increasing fund of knowledge and experience, along with her genuine caring devotion to her patients, I am convinced that Dr. Shienvold will become a truly outstanding physician and do honor to our profession. If my comments seem flowery and excessive, it is because in my almost 35 years as a physician, and as a psychiatrist to a large number of fellow physicians, I have only rarely seen someone as qualified to practice Medicine as Frances Shienvold. As part of the application process, Respondent arranged for the Physician's Recovery Network (PRN) to have Petitioner examined by an independent psychiatrist. This examination was performed in January 1992 by Dr. Burton Cahn. On February 24, 1992, Dr. Cahn submitted his report to Dr. Goetz by letter. Dr. Cahn's letter provided, in pertinent part, as follows: At the present time, I see no reason why Dr. Shienvold would be unable to practice medicine because of a mental or emotional condition. She is not psychotic. She is not a substance abuser. She is not at this time significantly depressed. She does not represent a danger to herself or to others. I therefore find no reason on a mental or emotional basis that Dr. Shienvold is unable to practice medicine. The record in this proceeding is not clear when the idea that a monitoring contract with the PRN would be deemed necessary by the Board of Medicine. It is apparent from Dr. Garner's follow-up letter to the Board of Medicine on January 16, 1992, that Petitioner was aware at that time that such a condition may be imposed on her licensure by Respondent. Dr. Garner's letter of January 16, 1992, provided, in pertinent part, as follows: It is my professional opinion that the assignment of Dr. Shienvold to the Physicians Recovery Network was an error. The requirement that she sign an Advocacy Contract with "PRN" is inappropriate for her situation, and would be for anyone else with her particular medical/psychological history. There is certainly no need for any kind of "monitoring" of her continuation in psychotherapy. . . . * * * In summary, I believe that Dr. Shienvold should be granted her Florida license to practice medicine without any special conditions or restrictions. . . . * * * Her diagnosis remains the same (Dysthymia), and her prognosis is excellent. By letter dated February 26, 1992, Dr. Goetz advised the Board of Medicine that "Dr. Cahn finds no reason why Dr. Shienvold would be unable to practice medicine with reasonable skill and safety." Dr. Goetz's letter of February 26, 1992, also provided the following: "If the Board chooses to license this applicant, I would be pleased to monitor Dr. Shienvold's continuing treatment with a PRN contract." By Order dated March 16, 1993, the Board of Medicine approved Petitioner's application for licensure by endorsement with a condition. The Board's Order 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 requirements your application for licensure as a physician by endorsement. The Board of Medicine reviewed and considered your application by endorsement on October 2, 1992, in Miami, Florida and has determined that said licensure by endorsement be APPROVED with the requirement that you establish a monitoring contract with the Physician Resource Network (PRN). The Board stated as grounds therefore: That you have a history of successful psychotherapy for a depressive disorder that requires ongoing treatment. Although your ability to practice medicine has not been compromised, it is appropriate to establish monitoring to ensure continued successful treatment. At its February 6, 1993, meeting in Jacksonville, Florida, the Board denied your request for reconsideration of this matter. The requirement set forth herein is a requirement for licensure and should not be interpreted or applied as disciplinary action by the Board. The Physician's Resources Network referred to by the foregoing Order is the same organization as the Physician's Recovery Network. The PRN is also referred to as the Impaired Practitioner Program. The purpose of the PRN program is to protect the public by assuring the health and well being of licensed health practitioners in the State of Florida. Dr. Garner's testimony at the formal hearing was consistent with the opinions he expressed in his two letters to Respondent. Petitioner has been responsible in securing appropriate medical care for herself including psychiatric care, and has been a cooperative patient while under Dr. Garner's care. For most of her psychotherapy, Petitioner has been seeing Dr. Garner twice a week. At the time of the formal hearing, she was seeing him once a week. Dr. Garner has no reason to believe that she would irresponsibly discontinue her therapy or become uncooperative in the foreseeable future. Petitioner has not suffered severe Dysthymia, but she has been at times severely depressed. Those occasions when she was severely depressed were in reaction to her mother's death and in reaction to her abandonment by her father and by her husband. Prior to entering medical school, Petitioner held a Ph.D. in cell biology and anatomy. Over the past seven years she has gone through a divorce, reconciled with her mother, suffered the death of her mother, become estranged from her father and stepmother, and completed medical school. At the time of the formal hearing, she had almost completed her residency. Petitioner has never been found to be unfit to practice medicine with requisite levels of skill and care at any time during her residency. Petitioner has participated in a residency program at Jackson Memorial Hospital for approximately three years. The residency program includes participation in out patient clinics at Mt. Sinai Hospital and service in regular hospital wards, the emergency room, intensive care units for both neonatal patients and other pediatric patients. As a resident, Petitioner worked under the general supervision of a licensed physician, but she had ample opportunity to independently exercise her professional responsibilities and judgment. Petitioner's ability to practice medicine with fitness and safety has not been impaired by Dysthymia, any other mental or emotional condition, or the medication she takes for the Dysthymia. Her memory has not been impaired. At any given time, a person suffering from depression can have difficulty in concentrating or in making decisions. The evidence in this proceeding established that Petitioner's ability to concentrate and to make decisions in the day to day practice of her profession has not been impaired. Her interest in her patients has not been impaired. She does not suffer from unusual fatigue. Petitioner has various medical conditions that add stress to her life. She suffers from sinus problems which have resulted in surgery and ongoing treatment for infections, hypertension, hyperthyroidism, gastritis which includes duodenitis, and esophageal reflux. Petitioner continues to suffer financial and family problems relating to her father, stepmother, brother, and son. Petitioner can still become very upset at times. It is anticipated that Petitioner will remain under Dr. Garner's care for at least one more year. Petitioner intends to continue in psychotherapy until her symptomology is fully resolved. Dr. Garner considers Petitioner's prognosis to be excellent, but is of the opinion that she needs ongoing psychotherapy for the foreseeable future. Dr. Garner is of the opinion that Petitioner could practice medicine with the requisite skill and safety if she were to discontinue psychotherapy completely. At the time of the formal hearing, Petitioner had been taking Prozac for approximately two years. Prozac is an antidepressant which helps Petitioner keep her mood at a high level while she deals with difficult problems in psychotherapy. Dr. Garner is of the opinion that Petitioner can practice medicine with the requisite level of skill and safety without Prozac. He is of the opinion that it is best for her to continue to take Prozac and that there are no significant side effects to the medication. Dr. Roger Goetz is the director of the PRN program and was accepted as an expert in Respondent's impaired practitioner program. The purpose of a monitoring contract with the PRN is to monitor whether there is a failure of a participant to progress in psychotherapy, if there is a change in medication, if there is any discontinuance of therapy, or if there is a change of treating professionals. Dr. Goetz considers the monitoring contract to be the least intrusive way to establish a relationship between the participant and the PRN program. Dr. Goetz is of the opinion that it is in Petitioner's best interest and the best interest of the public that she be in a monitoring contract with the PRN as a condition of her licensure because the contract would provide confirmation that Petitioner is doing well in her therapy before it became necessary to institute a disciplinary action or investigation, the contract would ensure that no abnormal transference was going on, and the contract would, in light of her psychiatric treatment, give assurance that she poses no problem to the public welfare. Dr. Goetz made it clear that he was testifying as the Director of the PRN and that he was not attempting to speak on behalf of the Board of Medicine. He also made it clear that it was the responsibility of the Board of Medicine to decide whether a practitioner needs services from the PRN and that the PRN becomes involved after the Board of Medicine determines that a practitioner needs its services. The terms and conditions of the monitoring contract would be negotiated by the parties after the Board of Medicine enters a Final Order that requires the imposition of a monitoring contract. Because those negotiations have not occurred, Dr. Goetz could only testify as to the terms he would expect to be contained in a monitoring contract. In addition to the reports required of the treating psychiatrist, the contract would confer on the PRN the authority to require Petitioner to withdraw from practice for evaluation if the PRN determines that "any problem" has developed. The monitoring contract is expected to be of at least five years duration and, according to Dr. Goetz, be imposed as long as Petitioner is in therapy without regard to the purpose or the nature of her therapy. Dr. Garner is of the opinion that PRN monitoring would impede rather than ensure Petitioner's progress in therapy because it would diminish the underlying confidentiality of therapy. From the proceedings before the Board of Medicine, it is apparent that the board considered the information contained in Petitioner's application file, including the opinions expressed by Dr. Garner and by Dr. Cahn before entering its Order of March 16, 1993. At the formal hearing, there was no articulation of the reasons the Board of Medicine had for determining that Petitioner's history of psychotherapy and the fact that the psychotherapy was ongoing justified the imposition of the monitoring contract with the PRN.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order which unconditionally grants Petitioner's application for licensure to practice medicine by endorsement. DONE AND ENTERED this 29th day of November, 1993, 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 29th day of November, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3038 The following rulings are made on the proposed findings of fact submitted by Petitioner. The proposed findings of fact in paragraphs 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 22, 25, 26, 27, 29, 32, 33, 34, and 40 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 2 are adopted by the Recommended Order or are subordinate to the findings made. The proposed findings of fact in paragraphs 19, 20, 21, 23, 24, 28, 30, 31, 35, 36, 37, 42, and 43 are subordinate to the findings made. The proposed findings of fact in paragraphs 38 and 41 are rejected as being unnecessary as findings of fact, but are consistent with the conclusions reached. The proposed findings of fact in paragraph 39 are rejected as being speculative. The proposed findings of fact in paragraph 44 are rejected as being unnecessary to the conclusions reached. The following rulings are made on the proposed findings of fact submitted by Respondent. The proposed findings of fact in paragraphs 1, 2, 3, 4, 5, 7, 8, 10, 11, 13, and 14 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 6 and 9 are adopted in part by the Recommended Order. These proposed findings of fact are, in part, rejected as being inconsistent with the findings made. The proposed findings of fact in paragraph 12 are adopted as being opinions expressed by Dr. Goetz. COPIES FURNISHED: Howard J. Hochman, Esquire 1320 South Dixie Highway, Suite 1180 Coral Gables, Florida 33146 Claire D. Dryfuss, Esquire Assistant Attorney General Office of the Attorney General The Capitol, PL-01 Tallahassee, Florida 32399-1050 Dorothy Faircloth, Executive Director Board of Medicine Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0770 Jack McRay, Acting General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0770
The Issue In its petition, Florida Psychiatric Centers (FPC) alleges that HRS seeks to grant a CON to Florida Residential Treatment Centers, Inc. (FRTC), based on the agency's unpromulgated policy that ". . . at least one residential treatment center should be approved in each of DHRS' eleven health planning districts in Florida, regardless of the need for such facilities." (Petition, page 2, paragraph 6.) FPC argues that the policy is a "rule" and is invalid as a rule because it has not been adopted pursuant to Section 120.54, F.S., and because it conflicts with Sections 381.493, F.S., and 381.494, regarding need criteria. Further, FPC argues the "rule" is arbitrary and violates due process because the agency predetermines need regardless of the availability of like and existing services. HRS and Intervenor, FRTC, argue that the policy is incipient and needs not be promulgated. Further, the policy does not obviate a determination of need. HRS and FRTC claim that FPC lacks standing to bring this action, as its facility is a hospital and not the same as an intensive residential treatment program. HRS admits that the alleged policy has not been promulgated under Section 120.54, F.S. The issues for determination in this proceeding are summarized as follows: Whether FPC has standing to bring this action; Whether HRS has a policy regarding CON approval of intensive residential treatment programs, and whether that policy is a "rule"; and If the policy is a rule, is it an invalid rule?
Findings Of Fact FPC is a partnership which has received CON #2654 to construct a 100- bed psychiatric hospital in the Plantation/Sunrise area of West Broward County. The facility is under construction and will include 80 short-term psychiatric beds (40 geriatric, 15 adolescent, and 25 adult beds) and 20 short-term substance abuse beds. FPC anticipates an average length of stay of approximately 28 days for adults and less than 60 days for adolescents. FRTC is owned by Charter Medical Corporation. It proposes to build and operate a 60-bed intensive residential treatment program for children and adolescents in Broward County. The proposed facility will treat children and adolescents in need of psychiatric services. Its anticipated average length of stay is approximately one year. If it is awarded a certificate of need, FRTC intends to obtain licensing by HRS pursuant to Chapter 395, F.S., and Chapter 10D-28 F.A.C. No other facility licensed as an intensive residential treatment program, as defined in subsection 395.002(8), F.S. (1987), is available in Broward County. On March 11, 1987, HRS issued CON #4851 to FRTC for its 60-bed facility. A challenge to that CON is pending in DOAH consolidated cases #87- 2046/87-2400/87-2401. FPC is a petitioner in the case, with Florida Medical Center and South Broward Hospital District. Section 395.002(8), F.S., defines "Intensive Residential Treatment Programs for Children and Adolescents as: . . . a specialty hospital accredited by the Joint Commission on Accreditation of Hospitals which provides 24-hour care and which has the primary functions of diagnosis and treatment of patients under the age of 18 having psychiatric disorders in order to restore such patients to an optimal level of functioning. When completed, FPC will be accredited by the Joint Commission on Accreditation of Hospitals; it will provide 24-hour care and will have the primary function of diagnosis and treatment of patients with psychiatric disorders and problems of substance abuse. Unlike the other psychiatric hospitals in Broward County, FPC will have a campus-like setting and separate buildings for the various services. FPC will not be a locked facility. With the exception of the length of stay, the services provided by FPC for its adolescent patients will be essentially the same as an intensive residential treatment program, as defined above. Until recently, HRS has had very few CON applications for intensive residential treatment programs. HRS has considered that these programs must undergo CON review only if they seek licensure as a specialty hospital. In considering need for intensive treatment programs, HRS does not consider unlicensed residential treatment programs to be like and existing services because HRS is not required to review unlicensed facilities; HRS would not have any way of knowing all the programs in operation and would have no control over the services offered. This policy is similar to the policy HRS employed in conducting CON review of ambulatory surgery centers. In those cases, HRS did not consider the outpatient surgery being performed in physicians' offices. Because the legislature has created a special definition of intensive residential treatment facility, and because the State Health Plan seeks a continuum of mental health services, HRS presumes there is a need for a reasonably sized intensive residential treatment facility in each planning district. This presumption can be rebutted with evidence in a given case, such as the fact that the district has few children with mental illnesses, or that such programs have been tried and failed, or that parents in the area prefer to send their children outside the district. Moreover, any applicant for a CON for an intensive residential treatment facility must evidence compliance with the myriad criteria in Section 381.705, F.S. (1987), and in Chapter 10-5, F.A.C. Although there is no specific bed need methodology adopted by HRS for intensive residential treatment facilities, other psychiatric services, such as long-term psychiatric care, are also evaluated without a numeric bed need methodology. HRS has applied its presumption of need policy in intensive residential treatment program CON reviews at least since 1983. One reason why the policy has not been adopted as a rule is that there have been so few applications in that category. In the experience of Elizabeth Dudek, Health Facilities and Services Consultant Supervisor, the first level supervisor for CON review, there were merely three applications of this type prior to a recent batch of three more applications. FPC's Petition to Determine Invalidity of Agency Rule(s) alleges that HRS' policy is ". . . at least one residential treatment center should be approved in each of DHRS' eleven health planning districts in Florida, regardless of the need for such facilities." (paragraph 6) FPC further alleges that HRS construes Chapter 395 as requiring it to ". . . automatically approve at least one residential treatment center in each DHRS health planning district regardless of whether the statutory criteria for need in Section 381.494(b), F.S. [renumbered and amended as Section 381.705, F.S., in 1987] would be met by the applicant." (paragraph #7) These allegations were not proven in this proceeding and are rejected in favor of the less rigid presumption of need policy described in findings of fact #7 and #8, above.
The Issue The issue presented by this case concerns the question of whether the Respondent, State of Florida, Department of Health and Rehabilitative Services has exhausted all treatment for the Petitioner, James Guinn, through available sex offender programs administered by the Respondent. See Section 917.20, Florida Statutes (1977).
Findings Of Fact The Petitioner submitted a "Petition for Administrative Determination" to the State of Florida, Department of Health and Rehabilitative Services. In turn, the Department requested the Division of Administrative Hearings to conduct a formal hearing to consider the matters set forth in the petition and this request was received by the Division of Administrative Hearings on January 15, 1981. A final hearing in this cause was scheduled for March 3, 1981, but was not conducted until April 2, 1981, to allow Petitioner to secure representation. In the course of the final hearing the Petitioner testified in his own behalf and called Michael Pomeroy, Staff Psychologist in the forensic service at the Florida State Hospital as his witness. The Respondent called as witnesses Michael Denny, Staff Psychologist in the forensic service at the Florida State Hospital and Robert H. Alcorn, Jr., Director of the Mentally Disordered Sex Offender Program at the Florida State Hospital. Respondent's Exhibit No. 1 was admitted as evidence. At all times pertinent to this proceeding, the Petitioner has been in the custody of the Respondent in keeping with the order of the Circuit Court of Bradford County, Florida, and the authority of Chapter 917, Florida Statutes (1977). Beginning May 22, 1978, through the present, Petitioner has resided in the Florida State Hospital at Chattahoochee, Florida, where he is undergoing treatment in a hospital program for the benefit of mentally disordered sex offenders. This program and similar programs in other institutions administered by the Respondent require a high degree of motivation on the part of the patient in order to achieve success. Although the Petitioner has made progress in the course of his stay, the Respondent has made a preliminary determination that it has exhausted all appropriate treatment for the Petitioner through the program in which he is enrolled and has additionally concluded that similar programs within the State of Florida do not offer other opportunities for progress. In that respect, the Respondent has exhausted treatment in the affiliated programs. The principal treatment modality in the mentally disordered sex offender program at Florida State Hospital is group therapy. The Petitioner has participated in the group therapy sessions during his current hospitalization but no significant change in his behavior has been observed during this period. His condition has been diagnosed as sexual deviation, pedophilia. This condition involves the use of young children as a sexual object to reach sexual gratification. In this instance, the Petitioner has been placed in the hospital unit for his involvement with a young child. During the Petitioner's stay, his most remarkable progress has been made in the area of adjunctive therapy, namely vocational education and rehabilitation and occupational therapy. He has learned the "trade" of small engine repair mechanic and has made sufficient progress to be marketable as a small engine repairman. In addition, he has worked as a voluntary laborer and has made progress in leather occupational therapy. As stated before, the primary treatment modality is group therapy, which involves group discussion between six to ten participants in the program and their primary therapist. These sessions meet two times a week for an hour. The members of the groups are persons who are experiencing similar problems, and the idea is to have those group members confront each other to divulge their problems and begin to correct those difficulties. By July, 1980, the treatment team, in conjunction with the Petitioner had overcome the Petitioner's difficulty with impulse control to a sufficient extent that the Petitioner was willing to discuss his past problems with his family and perhaps was ready to create an atmosphere of trust necessary to consider his underlying problem with sexual deviation. At that juncture, he was moved from his group conducted by a female therapist to a group with a male therapist. From that point forward, notwithstanding attempts to have the Petitioner deal with his problem in some detail, the Petitioner has remained superficial about his condition. The Petitioner is guarded and closed about his past and, to some extent, about his future desires. The Petitioner has been unwilling to examine his inner feelings to gain the necessary insight about his problems to develop an alternative coping mechanism for those times when he is confronted with the tendency to be sexually deviant. Without that insight, his progress has been minimal. In the group sessions, the Petitioner has found it easier to help others than to help himself. In the view of his silence, the therapist has been required to treat the outward manifestation of symptoms as opposed to treating the Petitioner's restatement of those symptoms. There has been some success in teaching the Petitioner assertion skills, that is to be assertive in exchanges as opposed to aggressive. The Petitioner intellectually understands the difference between expressing thought as opposed to expressing feelings, but he has had difficulty perceiving this emotionally. Guinn is at the place in the program which is described as a latter phase and in that phase, self motivation is essential. At the November 5, 1980, staffing to consider the question of whether the treatment has been exhausted, when confronted with questions about his sexual problem, the Petitioner was guarded, vague and evasive. When he received a negative report and an indication that it was the intention of the staff to recommend his return to court for reason of exhaustion of treatment, the Petitioner refused to attend the group therapy sessions until December 8, 1980. His return to the sessions was promoted by conversation with a staff psychologist. In January, 1981, he was moved to a new group with a different group therapist and has appeared at ease in the group therapy sessions recently held, but has failed to take the initiative and still appears superficial in his efforts to address his problem. At the November 5, 1980, staff conference there was one positive sign in that the Petitioner indicated that he no longer fantasizes about young boys in a sexual way but now fantasizes about women; however, he was unable to say when this change of attitude had occurred and it is, therefore, difficult to know how significant this statement would be, especially in view of the fact that his participation in the group therapy sessions is shallow. In addition to his improverent in impulse control, he has improved in his ability to relate to other persons on a superficial level. Guinn still has problems relating to persons on an interpersonal level. An example is his ability to relate facts about the crimes for which he has been placed in the program, as contrasted with his inability to state why he did those crimes. The Florida State Hospital has nothing further that they can offer the Petitioner in dealing with his sexual deviation and on December 11, 1980, the program administrators of the various sex offender programs within the State of Florida discussed the Petitioner's case and concluded that treatment had been exhausted in the entire system administered by the Respondent. The Petitioner wishes to stay in the program and feels that the program has a lot to offer and that he can learn more from the program. He feels that his problem of opening up in the group therapy sessions is associated with his fear of what people will think of what he has done. Nonetheless, he states that he would discuss his situation now, although he has not done so in the past. He feels that he has his problem under control and can go out and not commit crimes, although he still needs help for his condition because he is not completely under control. He states that he is willing to cooperate in further treatment. According to the Petitioner, he has not talked in the group sessions lately in view of the negative report in the staff conference of November 5, 1980.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby, RECOMMENDED: That a final order be entered by the Department of Health and Rehabilitative Services finding that it has exhausted all appropriate treatment for James Guinn, and that said James Guinn be returned to the committing courts for farther disposition. DONE and ENTERED this 14th day of April, 1981, in Tallahassee, Florida. CHARLES C. ADAMS, 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 14th day of April, 1981. COPIES FURNISHED: Claude Arrington, Esquire Assistant Public Defender Second Judicial Circuit 211 East Jefferson Street Quincy, Florida 32351 Gerry Clark, Esquire Florida State Hospital Chattahoochee, Florida 32324
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 presented by this case concerns the question of whether the Respondent, State of Florida, Department of Health and Rehabilitative Services has exhausted all treatment for the Petitioner, Frank T. Henderson, through available sex offender programs administered by the Respondent. See Section 917.20, Florida Statutes (1977).
Findings Of Fact The Petitioner submitted a "Petition for Administrative Determination" to the State of Florida, Deportment of Health and Rehabilitative Services. In turn, the Department requested the Division of Administrative Hearings to conduct a formal hearing to consider the matters set forth in the petition and this request was received by the Division of Administrative Hearings on January 5, 1981. A final hearing in this cause was scheduled for January 30, 1981, but was not conducted until March 3, 1981, to allow Petitioner to secure representation. In the course of the final hearing the Petitioner testified in his own behalf. The Respondent called as witnesses Michael Denny, Staff Psychologist in the forensic service at the Florida State Hospital and Robert H. Alcorn, Jr., Director of the Mentally Disordered Sex Offender Program at the Florida State Hospital. Respondent's two exhibits were admitted as evidence. At all times pertinent to this proceeding, the Petitioner has been in the custody of the Respondent in keeping with that order of the Circuit Court of Duval County, Florida, and the authority of Chapter 917, Florida Statutes (1977). Beginning July 28, 1978, through the present, Petitioner has resided in the Florida State Hospital at Chattahoochee, Florida, where he is undergoing treatment in a hospital program for the benefit of mentally disordered sex offenders. This program and similar programs in other institutions administered by the Respondent require a high degree of motivation on the tart of the patient in order to achieve success. Although the Petitioner has made progress in the course of his stay, the Respondent has made a preliminary determination that it has exhausted all appropriate treatment for the Petitioner through the program in which he is enrolled and has additionally concluded that similar programs within the State of Florida do not offer other opportunities for progress. In that respect, the Respondent has exhausted treatment in the affiliated programs. The principal treatment modality in the mentally disordered sex offender program at Florida State Hospital is group therapy. The petitioner has participated in the group therapy sessions during his current hospitalization but no significant change in his behavior has been observed during this period. His condition has been diagnosed as (1) passive aggressive personality, passive type, (2) inadequate personality and (3) sexual deviation, incest. Henderson has been placed in this program as a result of incestuous activity with his daughter. His present condition is best described as a personality disorder with passive aggressive features. Metaphorically, an individual suffering from this form of personality disorder, if asked to mow the lawn and in doing so becomes confronted with flowers he would mow the flowers down rather than go around then. Typically, this type of disorder carries with it certain coping mechanisms such as problems with employment, substance abuse, and sexual deviation. Of these mechanisms, Henderson suffers from the latter two and in particular still has a propensity to act out in a sexually deviant manner. Group therapy has been described as the primary treatment form in the sex offender programs of the Respondent and the petitioner has advanced through the initial levels of the program and is now involved in the final level offered through group therapy. In that connection, his group meets one to one and one half hours, two or three times a week. The majority of his treatment while involved in Level III has been under the control of psychologist Michael Denny. This commenced in June, 1979, and ran through January, 1981. In the first five (5) months of the group work, Denny attempted to establish a rapport with the Petitioner and to discuss the Petitioner's marriage and personality style and from November, 1979, through January, 1981, attempted to treat this personality style and propensity to commit sexually deviant acts. Success in this effort was limited due to the Petitioner's failure to heed advice concerning his problems and personality style and problems with sexual deviancy. Henderson is aware of the dynamics of what lead him to commit sexual battery on his daughter and of his problems with his marriage which lead him to seek out alcoholism as a defense mechanism, to inappropriately keep people at a distance, and the ensuing problems. Nonetheless, the Petitioner has failed to alter his problem state and his present posture in such that the group therapy sessions will not assist in rehabilitation, and in view of the fact that the group therapy sessions are the means of ameliorating his sexual problems, treatment has been exhausted. The Petitioner is still likely to act out in a sexually deviant manner. The attempt of trying to get Henderson to be more assertive with other males and females has met resistence by Henderson through his internalization of feeling, and he would be prone to abuse substances to assist in this internalization, with the result being that the utilization of those substances would cause him to be abusive with others. Henderson continues to blame others for his problems and is superficial in interaction with others and lacks the depth of a close relationship. Only one time in the period of one and one half years that psychologist Denny dealt with Petitioner did the Petitioner express his inner feelings. Henderson also has problems following small rules or agreements with other persons. Finally Henderson has a tendency to use religion as a foil to discussing his disorder. Although asked not to use that defense mechanism in the course of the group sessions, Henderson has used religion as an unsatisfactory explanation for his deviancy. The clinical summary and report of the staff of the Florida State Hospital, rising from the November 12, 1980, staffing, may be found as Respondent's Exhibit No. 2, admitted into evidence, and this summary expresses the staff's opinion that treatment has been exhausted and the recommendation that the Petitioner be returned to the committing court. This determination was followed by an interdepartmental discussion of the Petitioner's case which was held by the various unit directors of the sex offender programs within the Department's control and it was the opinion of those unit directors that treatment of the Petitioner's condition has been exhausted. Petitioner has progressed in areas outside of the group therapy sessions to include participation in an alcoholics anonymous program in which he graduated and vocational participation in small engine repair and office education, wood therapy and leather therapy, participation with the Jaycees at the hospital and attendence at religious services. The quality of his performance in the adjunctive therapies is not sufficient to cause a change in the basic nature of the Petitioner's condition for which he was committed as a sex offender and is not such that it would cause a change in the determination that the Respondent has exhausted treatment for the Petitioner. Henderson states that he realizes what caused his crime in the sense that he was not assertive and was rejected and hurt to the extent that he was not performing normally and held hatred in his heart for his stepmother and wife. He said that he has enjoyed using hatred as a defense mechanism and was wrong and should take those problems to God and people. He feels that he has friends on the ward in his area and has had close relationships with the staff until he had problems with his back requiring surgery. (The staff feels that some of these problems are "psychosomatic.") He wanted to be removed from Denny's group and this was accomplished but he still feels bitter and hurt. He has expressed a willingness to work on his problems, but he conditions this on the fact that his willingness depends on the consensus of the staff of the Hospital that he needs further assistance, having determined in his own mind that his problem is under control.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby, RECOMMENDED: That a final order be entered by the Department of Health and Rehabilitative Services finding that it has exhausted all appropriate treatment for Frank T. Henderson, and that said Frank T. Henderson be returned to the committing court for further disposition. DONE and ENTERED this 19th day of March, 1981, in Tallahassee, Florida. CHARLES C. ADAMS, 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 19th day of March, 1981. COPIES FURNISHED: J. Craig Williams, Esquire 335 East Bay Street Jacksonville, Florida 32201 Gerry L. Clark, Esquire Florida State Hospital Chattahoochee, Florida 32324
The Issue The issue presented by this case concerns the question of whether the Respondent, State of Florida, Department of Health and Rehabilitative Services has exhausted all treatment for the Petitioner, John P. Wordsman, III, through available sex offender programs administered by the Respondent. See Section 917.20, Florida Statutes (1977).
Findings Of Fact The Petitioner submitted a "Petition for Administrative Determination" to the State of Florida, Department of Health and Rehabilitative Services. In turn, the Department requested the Division of Administrative Hearings to conduct a formal hearing to consider the matters set forth in the petition and this request was received by the Division of Administrative Hearings on January 13, 1981. A final hearing in this cause was scheduled for January 30, 1981, but was not conducted until March 3, 1981, to allow Petitioner to secure representation. In the course of the final hearing the Petitioner testified in his own behalf. The Respondent called as witnesses Lois P. Stevens, Staff Psychologist in the forensic service at the Florida State Hospital and Robert H. Alcorn, Jr., Director of the Mentally Disordered Sex Offender Program at the Florida State Hospital. Petitioner had two exhibits admitted. Respondent's Exhibit No. 1 was admitted into evidence. At all times pertinent to this proceeding, the Petitioner has been in the custody of the Respondent in keeping with the order of the Circuit Court of Duval County, Florida, and the authority of Chapter 917, Florida Statutes (1977). Beginning July 28, 1978, through the present, Petitioner has resided in the Florida State Hospital at Chattahoochee, Florida, where he is undergoing treatment in a hospital program for the benefit of mentally disordered sex offenders. This program and similar programs in other institutions administered by the Respondent require a high degree of motivation on the part of the patient in order to achieve success. Although the Petitioner has made progress in the course of his stay, the Respondent has made a preliminary determination that it has exhausted all appropriate treatment for the Petitioner through the program in which he is enrolled and has additionally concluded that similar programs within the State of Florida do not offer other opportunities for progress. In that respect, the Respondent has exhausted treatment in the affiliated programs. The principal treatment modality in the mentally disordered sex offender program at Florida State Hospital is group therapy. The Petitioner has participated in the group therapy sessions during his current hospitalization but no significant change in his behavior has been observed during this period. His condition has been diagnosed as (1) sexual deviation, pedophilia, (2) homosexuality, and (3) alcoholism. The petitioner has been placed with the Department of Health and Rehabilitative Services following a plea or nolo contendere to the offense of sexual battery, involving an attempted rape. Referring again to the Petitioner's participation in the principal treatment modality, i.e., group therapy, Petitioner has worked in a group headed by a male psychologist, staff worker and subsequently, a group with a female staff worker. The change to the female staff worker was to assist the Petitioner in dealing with his relationship with females. His attitude toward females has been described as Victorian in that he had problems relating to women who fulfilled roles other than child bearing. Through the group discussions, the Petitioner has talked about his preference for homosexual life style and his problem with alcoholism. Wordsman has not discussed his problems with pedophilia. In the group sessions, his "feedback" under discussion of his life's circumstance is confusing and his motivation in those sessions is not genuine. In this connection, the Petitioner's attitude has been described as one of playing "head games," especially with his principal advisor and therapist, Lois Stevens. This attitude in essence means the Petitioner has feigned sincere participation. His explanation for this tactic is to the effect that he wanted the treatment but that he did not feel that he was up to the occasion of sincerely applying for it. The Petitioner does not wish to engage in specific topics in the group therapy sessions and is distrustful of people, to the extent that he would not confide in others. When pressed to give specific responses during the course of the group therapy sessions, the petitioner becomes stressful and will not give answers to the questions posed. The form of treatment in the sex offender program requires honesty in the responses of the participants and the Petitioner has difficulty complying with this standard. In the course of the group sessions and in dealing with the subject of his crime, the Petitioner would not give specific responses other than to say that he remembers events around the time period of the act; however, he indicates that he may have been on alcohol when it occurred. The only brief progress that the Petitioner has shown in relating to his problems in the group therapy sessions occurred immediately after he had been told that the staff was recommending his return to the committing court. At that juncture, he became more sincere in the first session, but immediately reverted back to a superficial and shallow manner of dealing with the treatment form. The Petitioner has been involved in other therapy activities to include music, leather and wood therapy, a program for alcoholics, and occupational therapy. Petitioner is an accomplished musician and has performed well in that form of therapy and in addition has made notable progress in occupational therapy. Notwithstanding the progress in these therapy areas, his failure to make satisfactory progress in the group therapy sessions, which sessions are the primary agent for change in the underlying condition of the patient, has lead the hospital staff to the conclusion that it has exhausted treatment of those conditions. Continued success in the other related therapy does not have a significant effect in alleviating his condition. This opinion is expressed in the most recent staffing summary of December 10, 1980, a copy of which has been admitted as Respondent's Exhibit No. 1. In addition to the staffing achieved by Florida State an interdepartmental screening was conducted of the Petitioner's condition and the question of exhaustion of treatment in the sex offender programs and it was the opinion of the unit directors of the sex offender programs within the Respondent Department's organization that the overall Department had exhausted treatment for the Petitioner in the sex offender programs. It is the opinion of the Department that the Petitioner continues to meet the definitions of sex offender within the meaning of Chapter 917, Florida Statutes. Wordsman feels that he has made progress in dealing with people around him and that he gets along better than he did before his commitment to the program. He has expressed concern that the staff is "out to get him" and that the group therapy sessions are not adequate to deal with his problem. He prefers to be placed in a program for behavior disorders with specific emphasis on drug abuse, in that he feels his problems arise when he becomes intoxicated. His reaction to the current program In which he is placed is summed up by his remark that he does net "understand what the staff wants from him."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby, RECOMMENDED: That a final order be entered by the Department of Health and Rehabilitative Services finding that it has exhausted all appropriate treatment for John P. Wordsman, III, and that said John P. Wordsman, III, be returned to the committing court for further disposition. DONE and ENTERED this 19th day of March, 1981, in Tallahassee, Florida. CHARLES C. ADAMS, 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 19th day of March, 1981 COPIES FURNISHED: Gerry L. Clark, Esquire Florida State Hospital Chattahoochee, Florida 32324 J. Craig Williams, Esquire 335 East Bay Street Jacksonville, Florida 32201
