The Issue Did Respondent, Tonya Shrader, R.N. (Ms. Shrader), violate section 464.018(1)(j), Florida Statutes (2015),1/ by being unable to practice nursing with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics, or chemicals or any other type of material, or as a result of any mental or physical condition? If Ms. Shrader violated section 464.018(1)(j), what penalty should be imposed?
Findings Of Fact Section 20.43 and chapters 456 and 464, Florida Statutes, charge the Department of Health, Board of Nursing, with the licensing and regulation of nurses. At all times material to the allegations in the Administrative Complaint, Ms. Shrader was a licensed registered nurse in the State of Florida. She holds license RN 9180605. Ms. Shrader has a complicated history of psychiatric and medical problems that affect her ability to practice nursing with the level of skill and safety to patients required in the State of Florida. Ms. Shrader has suffered from depression since childhood. Ms. Shrader treated her depression with a variety of medications, including: Lithium, Depakote, Pamelor, Elavil, Topamax, Lamictal, and Prozac. In the past five years, Ms. Shrader has not received treatment for her depression. Ms. Shrader also suffers from anxiety. Ms. Shrader is not receiving treatment for her anxiety. In addition to depression and anxiety, Ms. Shrader suffers from chronic severe migraines. The cause has not been determined despite extensive neurological evaluations. Ms. Shrader has been prescribed Tramadol, Fiorcet, and Clonazepam to treat her migraines. At all times material to the Department's complaint, Ms. Shrader was prescribed Fiorcet for her migraine symptoms. Between March 24, 2012, and July 22, 2013, Ms. Shrader complained of multiple neurological symptoms, including double vision, balance and gait instability, and tingling and numbness in her hands. Ms. Shrader elected to undergo extensive neurological testing to rule out demyelinating disease, multiple sclerosis, and palsy. The tests provided no indication that Ms. Shrader's symptoms resulted from a neurological disorder. At all times material to this proceeding, Ms. Shrader worked as a registered nurse in the Neurological and Psychiatric Unit at Gulf Coast Medical Center (Gulf Coast). On December 20, 2013, Ms. Shrader took an excessive dose of four Fiorcet pills. She told her family that she "plans to keep overdosing until she dies," and that she "predicts that [she] will be dead by the end of the year." Ms. Shrader's family contacted the Emergency Medical Services. Ms. Shrader was transported to Lehigh Regional Medical Center, where she was treated for an overdose. Ms. Shrader was involuntarily admitted to SalusCare, Inc. (SalusCare), for inpatient psychiatric observation and treatment. On December 20, 2013, the Crisis Stabilization Unit (CSU) at SalusCare conducted an in-patient psychiatric evaluation of Ms. Shrader. During the evaluation, Ms. Shrader denied past psychiatric treatments or psychiatric medication. Ms. Shrader also denied that her Fiorcet overdose was an attempted suicide. Her statements during her SalusCare evaluation contradict her medical charting and statements she has made, which indicate that she has an extensive history of psychiatric illnesses. SalusCare discharged Ms. Shrader on December 23, 2013. The director of nursing at Gulf Coast contacted the Intervention Project for Nurses (IPN) about Ms. Shrader. IPN is an impaired practitioner consultant to the Department's Board of Nursing. IPN works with nurses and monitors them for safety to practice issues. IPN contacted Ms. Shrader on January 2, 2014, to discuss her entering the program. Ms. Shrader denied that she was impaired or abused any substances. She admitted that she was depressed. But she said that she stopped her depression treatment approximately five years earlier. IPN asked Ms. Shrader to undergo an evaluation to determine her fitness to practice nursing. Ms. Shrader scheduled an evaluation with Theodore Treese, M.D., an expert in the psychiatric treatment, monitoring, and care of health care practitioners. He conducted the evaluation on January 28, 2014. Dr. Treese diagnosed Ms. Shrader with severe major depressive disorder; alcohol abuse; opioid abuse; sedative, anxiolytic abuse; relational problems, not otherwise specified; and rule-out polysubstance abuse. During the evaluation, Ms. Shrader attempted to hide her in-patient psychiatric treatment at SalusCare. Based on Ms. Shrader's diagnoses, Dr. Treese determined that Ms. Shrader was not capable of practicing as a registered nurse with reasonable skill and safety to patients. Dr. Treese recommended that Ms. Shrader seek treatment at a substance abuse treatment center at a level of at least partial hospitalization. Ms. Shrader did not agree with Dr. Treese's recommendation. IPN gave Ms. Shrader the opportunity to seek a second opinion from another IPN-approved evaluator. IPN informed Ms. Shrader that she needed to either obtain a second opinion or enter the recommended treatment before April 14, 2014; otherwise, IPN would close her intake case file. Ms. Shrader refused to obtain a second opinion or enter into the recommended treatment. IPN closed Ms. Shrader's file on April 14, 2014. On December 2, 2014, Mark Sylvester, M.D., a physician specializing in psychiatry and addiction medicine, evaluated Ms. Shrader pursuant to Department Order. Dr. Sylvester reviewed Ms. Shrader's medical records, the IPN intake case file, and the Department's investigative report. Dr. Sylvester also asked Ms. Shrader to undergo a urine and hair drug screen. Ms. Shrader did not participate in the screens. Dr. Sylvester diagnosed Ms. Shrader with recurrent major depressive disorder, opioid abuse, alcohol abuse, benzodiazepine abuse, nicotine dependence, factitious disorder versus malingering, rule-out hypochondriasis, and rule-out conversion disorder. During the evaluation, Ms. Shrader attempted to conceal her psychiatric history, substance abuse, and symptoms of depression. Ms. Shrader's unwillingness to be forthcoming during her evaluation demonstrated denial of her symptoms and presented a significant barrier to her treatment and recovery. Dr. Sylvester concluded that Ms. Shrader's poor judgment and decision-making detrimentally affected her ability to practice nursing. Specifically, Ms. Shrader's judgment in attempting to practice nursing while impaired, her lack of insight into her illnesses, her inability to follow treatment recommendations, and her disagreement with medical professionals showed poor judgment. Poor judgment can affect decision-making while practicing nursing, especially in a crisis situation. Dr. Sylvester concluded that Ms. Shrader was unable to practice nursing with reasonable skill and safety by reason of her depression, use of alcohol, opioids, and benzodiazepines, lack of insight into her symptoms, and poor judgment. In order for Ms. Shrader to be able to practice nursing with reasonable skill and safety to patients, she must: undergo treatment at a residential treatment center; enter into an IPN monitoring agreement; and submit to a hair analysis drug screening test. These steps are essential to Ms. Shrader's recovery and to regaining the ability to practice nursing with reasonable skill and safety to patients. There is no evidence that Ms. Shrader has taken any of these steps. Ms. Shrader is unable to practice nursing with reasonable skill and safety to patients.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Health, Board of Nursing, enter a final order: finding that Respondent, Tonya L. Shrader, R.N., violated section 464.018(1)(j); requiring her to undergo an IPN evaluation; imposing a suspension of her license until such time as she undergoes an IPN evaluation; requiring compliance with IPN recommendations, if any; requiring the payment of an administrative fine in the amount of $250.00; and awarding costs for the investigation and prosecution of this case, as provided in section 456.072(4) to the Department. DONE AND ENTERED this 29th day of July, 2015, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of July, 2015.
Findings Of Fact Petitioner, Richard W. Merritt, D.C. is a chiropractic physician licensed under Chapter 460, Florida Statutes, and is actively practicing chiropractic in the State of Florida. By this action Petitioner challenges the validity of Rule 61F2- 17.007(6)(a), F.A.C.. The pertinent portions of the challenged Rule purport to define several terms to be utilized by the peer Review Committee in evaluation of chiropractor performance as brought before it. Specifically in issue are provisions of Rule 61F2-17.007: (6)(a) "Appropriate medical treatment" as used in Section 460.4104, Florida Statutes, is defined as a determination made of treatment and other services performed, which by virtue of a substantiated and properly diagnosed condition, appears to be of a type consistent with that diagnosis as reviewed by the peer review committee. "Properly utilized services" as used in Section 460.4104, Florida Statutes, means a determination made of appropriate medical treatment services rendered including frequency and duration which are substantiated as being necessary and reasonable by clinical records and reports of the provider as reviewed by the peer review committee. "Appropriate costs" as used in Section 460.4104, Florida Statutes, mean a determination made of charges submitted for properly utilized services performed which appear to be necessary and reasonable charges for similar provider services in the judgement of the peer review committee. As a licensed chiropractic physician subject to Chapter 460, Florida Statutes, Petitioner is substantially affected by the challenged rule because: he is a "health care provider" as defined by Section 460.403(5), Florida Statutes, and as used in Section 460.4104, the specific authority for and statute implemented by the challenged rule; the challenged rule expressly applies to health care providers and establishes definitions of statutory standards applicable to the peer review of the practice of chiropractic by chiropractic physicians including Petitioner; and the rule, when applied in conjunction with Section 460.4104, Florida Statutes, may subject chiropractic physicians, including Petitioner, to potential penal sanctions for the practice of chiropractic which violates the definitions incorporated in the challenged rule applied consistent with the statutory standard. The Respondent, Department of Business and Professional Regulation, (now Agency for Health Care Administration), Board of Chiropractic, (Board), promulgated the challenged rule and has the responsibility for implementing it as well as the whole of Chapter 460, Florida Statutes and Chapter 61F2, F.A.C..
Findings Of Fact On October 15, 1985, Petitioner, Mercy Hospital, Inc. (Mercy), filed an application with Respondent, Department of Health and Rehabilitative Services (Department) for a certificate of need (CON) to convert 29 medical/surgical beds into 29 long-term substance abuse beds. On February 27, 1986, the Department denied Mercy's application, and Mercy timely petitioned for formal administrative review. Mercy is a 538-bed acute care hospital located in Miami, Dade County, Florida. Due to a declining patient census, Mercy is, however, operating only 360 of its 530 licensed beds. Mercy currently offers services in medicine, surgery, psychiatry, obstetrics, gynecology, emergency medical services and outpatient services. Need The predicate for the Department's denial of Mercy's application was a perceived lack of need for long-term substance abuse beds in District XI (Dade and Monroe Counties), and the impact such lack of need would exert on the other statutory and rule criteria. Resolution of the need issue is dispositive of Mercy's application. There currently exists no numeric need methodology for determining the need for long-term substance abuse beds. The Department has, however, adopted Rule 10-5.11(27)(h)1, Florida Administrative Code, which establishes the following occupancy standard: No additional or new hospital inpatient substance abuse beds shall normally be approved in a Department service district unless the average occupancy rate for all existing hospital based substance abuse impatient beds is at or exceeds 80 percent for the preceding 12 month period. District XI has 190 approved long-term hospital impatient substance abuse beds; however, only 30 of those beds are currently licensed. The licensed beds are located in Monroe County at Florida Keys Memorial Hospital (Florida Keys), and are operating well below the 80 percent occupancy standard established by rule. 1/ The remaining beds are to be located in Dade County where Intervenor, Management Advisory and Research Center, Inc., d/b/a Glenbeigh Hospital (Glenbeigh) holds a CON for a 100-bed unit and Mount Sinai Medical Center (Mount Sinai) holds a CON for a 60-bed unit. Glenbeigh's facility is currently under construction, and Mount Sinai is seeking licensure. While not licensed, Mount Sinai has operated its 60-bed unit under its acute care license, and for the first three quarters of 1985 reported occupancy rates of 49.7 percent, 62 percent, and 48.9 percent. While the beds approved for District XI do not demonstrate an 80 percent occupancy rate, only one unit, Florida Keys, is licensed and operational. That unit is located in Key West, serves the middle and lower keys, and is not accessible to Dade County residents. The remaining units are not licensed, and their occupancy figures are not representative of a functional substance abuse unit. Accordingly, a failure to demonstrate compliance with the 80 percent occupancy standard is not necessarily dispositive of the question of need. There currently exists, however, no recognized methodology to calculate need for long-term substance abuse services. Accordingly, to demonstrate a need in 1990 for such services, Mercy relied on a numeric need methodology devised by its health planning expert, Daniel Sullivan 2/ (Petitioner's exhibit 4). Sullivan's methodology was not, however, persuasive. The First Step in Sullivan's Methodology The first step in Sullivan's methodology was to derive an estimate of the number of substance abusers in District XI who would seek treatment in an inpatient setting. The figure he calculated (a,170) was derived-through a four- stage refinement process. Initially, Sullivan estimated the number of problem drinkers within the district for the horizon year by applying the Marden methodology. That methodology, routinely relied upon by health planners, identifies the number of problem drinkers in a given population by multiplying a probability factor to age and sex groupings. By applying the Marden methodology to the age and sex demographics of District XI, Sullivan calculated that an estimated 148,541 problem drinkers would reside within the district in 1998. Sullivan then strove to estimate the number of problem drinkers who would seek treatment in some formal setting (network treatment). To establish that estimate, Sullivan relied on a report prepared for the National Institute on Alcohol Abuse and Alcoholism (NIAAA) entitled "Current Practices in Alcoholism Treatment Needs Estimation: A State-of-the-Art Report". According to Sullivan, that report estimates the percentage of problem drinkers who will seek network treatment to be 20 percent. Therefore, he calculated that an estimated 29,788 problem drinkers in District XI would seek such treatment in 1990. Sullivan then strove to estimate the number of problem drinkers who would seek treatment in an inpatient setting. To establish that estimate, Sullivan relied on a survey conducted in 1982 by the NIAAA entitled National Drug and Alcoholism Treatment Utilization Survey". According to Sullivan, that survey indicated that approximately 78 percent of all problem drinkers who sought treatment did 50 on an outpatient basis. Therefore, using a factor of 22 percent, he calculated that an estimated 6,536 problem drinkers in District XI would seek such treatment in 1990. Sullivan's methodology, at stage two and three of his refinement process, was not persuasive. While Sullivan relied on the factors presented in the reports, there was no proof that health planning experts routinely relied on the reports. More importantly, there was no evidence of the type of survey conducted, the reliability of the percentage factors (i.e.: + 1 percent, 10 percent, 50 percent, etc.), or their statistical validity. In sum, Sullivan's conclusions are not credited. The final stage at step one of Sullivan's methodology, was to estimate the number of substance abusers (alcohol and drugs) who would seek treatment in an inpatient setting. To derive that estimate, Sullivan relied on a report prepared by the Department's Alcohol, Drug Abuse and Metal Health Office, contained in a draft of its 1987 state plan, which reported that 80 percent of substance abusers abuse alcohol and 20 percent abuse other drugs. Applying the assumption that 80 percent of substance abusers abuse alcohol, Sullivan estimated that 8,170 substance abusers in District XI would seek inpatient treatment in 1990. Sullivan's conclusion is again not persuasive. To credit Sullivan's methodology, one must assume that substance abusers (alcohol and drugs) seek treatments at the same rate as alcohol abusers. The record is devoid of such proof. Accordingly, for that reason and the reasons appearing in paragraph 12 supra, Sullivan's conclusions are not credited. The Second Step in Sullivan's Methodology. The second step in Sullivan's methodology was to estimate the number of hospital admissions, as opposed to other residential facility admissions, that would result from the need for substance abuse services. To quantify this number, Sullivan relied on one 1982 survey conducted by NIAAA. According to that survey, the distribution of inpatient substance abuse clients by treatment setting in 1982 was as follows: Facility Location Number Percent of Total Hospital 17,584 34.1 Quarterway House 1,410 2.7 Halfway Housed/ Recovery Home 14,648 28.4 Other Residential Facility 15,980 31.0 Correctional Facility 1,985 3.8 TOTAL 51,607 100.0 percent Therefore, using a factor of 34.1 percent, Sullivan estimated the number of substance abuse hospital admissions to be 2,784 for 1990. For the reasons set forth in paragraph 12 supra, Sullivan's conclusions are, again, not credited. The Third and Fourth Steps in Sullivan's Methodology. The third step in Sullivan's methodology was to estimate the number of substance abuse hospital admissions that would require long-term, as opposed to short-term, services. To derive this estimate, Sullivan calculated admissions to short-term beds by applying a 28-day length of stay and an 80 percent occupancy standard to the Department's short-term bed need methodology (.06 beds per 1,000 population) contained in Rule 10-5.11(27)(f)1, Florida Administrative Code. Sullivan then subtracted that number (1,182) from the estimated number of substance abuse hospital admissions for 1990 (2,784), and concluded that the estimated number of hospital admissions in 1990 that would result from the need for long-term substance abuse services would be 1,602. The final step in Sullivan's methodology was to calculate the need for long-term hospital substance abuse beds. To derive this estimate, Sullivan multiplied the estimated number of long-term substance abuse admissions (1,602) by an average length of stay of 37 days, and divided that total by an occupancy standard of 292 days (80 percent of 365 days). Under Sullivan's methodology, a gross need exists for 203 long-term substance abuse beds in District XI. To establish net need, Sullivan would reduce the 203 bed district need by the 160 beds approved for Dade County, but ignore the 30-bed unit at Florida Keys because of its geographic inaccessibility. By Sullivan's calculation, a net need exists for 43 beds in Dade County. Sullivan's analysis, at steps three and four of his methodology, is not credited. Throughout his methodology Sullivan utilized District XI population figures (Dade and Monroe Counties) to develop a bed need for Dade County. Although Monroe County accounts for only 4 percent of the district's population, the inclusion of that population inflated Dade County's bed need. More demonstrative of the lack of reliability in steps three and four of Sullivan's analysis are, however, the methodologies by which he chose to calculate short- term admissions and long-term substance abuse bed need. Sullivan calculated admissions to short-term beds by applying a 28-day length of stay and an 80 percent occupancy standard to the Department's short- term bed need methodology (.06 beds per 1,000 population) contained in Rule 10- 5.11(27)(f)1, Florida Administrative Code. 3/ By using a 28-day length of stay, the maximum average admission permitted for short-term beds, as opposed to the district's demonstrated average of 24-days, Sullivan inappropriately minimized the number of estimated short-term admissions and maximized the number of estimated long-term admissions. 4/ Sullivan sought to justify his use of a 28-day standard by reference to testimony he overheard in a separate proceeding. According to Sullivan, a Department representative testified that the 28-day standard was used in developing the Department's .06 short-term beds per 1,000 population rule. Sullivan's rationalization is not, however, persuasive. First, Sullivan's recitation of testimony he overheard in a separate proceeding was not competent proof of the truth of those matters in this case. Second, Sullivan offered no rational explanation of how a 28-day standard was used in developing the rule. Finally, the proof demonstrated that the average short-term length of stay in District XI is 24 days, not 28 days. The difference between a 24-day and 28-day average short-term length of stay is dramatic. Application of Sullivan's methodology to the population of Dade County, and utilizing a 24-day average, would demonstrate a need for 170 long-term beds, as opposed to Sullivan's calculated need of 203 beds. In addition to the average short-term length of stay factor, long-term bed need is also dependent on an average length of long-term admissions factor. Under Sullivan's approach, the higher the average, the higher the bed need. Accordingly, to derive a meaningful bed need requires that a reliable average length of stay be established. The data chosen by Sullivan to calculate such an average was not, however, reliable. Sullivan used a 37-day average length of stay to develop his long-term bed need. This average was developed from the CON applications of Mercy, Glenbeigh and Mount Sinai. In the applications, Mercy estimated an expected length of stay of 30-37 days, Glenbeigh 36-38 days, and Mount Sinai 28-49 days. Use of a simple average, of the expected lengths of stay contained in Mercy's, Glenbeigh's and Mount Sinai's applications, to develop an average long- term length of stay is not persuasive. The figures contained in the applications are "expected length of stay", a minimum/maximum figure. Mercy failed to demonstrate that a simple average of those figures was a reliable indicator of average length of stay. Indeed, Mercy presented evidence at hearing that its average length of stay would be 30-31 days; a figure that is clearly not a simple average of the 30-37 day expected length of stay contained in its application. Mercy's failure to demonstrate a meaningful average length of stay renders its calculated bed need unreliable. Sullivan's Methodology - An Overview Each step of Sullivan's methodology was inextricably linked to the other. Consequently, a failure of any step in his analysis would invalidate his ultimata conclusion. Notwithstanding this fundamental fact Mercy, with the exception of the Marden methodology, failed to present a reasonable evidentiary basis to demonstrate the reliability and validity of Sullivan's methodology or any of its parts. Since his methodology was not validated, or each of its inextricably linked parts validated, Sullivan's conclusions are not persuasive or credited. Other Considerations If Mercy receives a CON, it will enter into a management contract with Comprehensive Care Corporation (CompCare) to operate the substance abuse unit. The parties anticipate that Mercy will provide its existing physical plant, custodial services, support services, dietary services, complimentary medical services, medical records and pharmacy services, and that CompCare will provide the treatment team, quality assurance, public information, promotion and operational management. Under its proposed agreement with CompCare, Mercy would pay CompCare on a per patient day basis. This fee was not, however, disclosed at hearing nor were the other expenses for patient care established. 5/ Consequently, Mercy failed to establish that its proposal was financially feasible on either a short or long term basis. Mercy also proposes to provide bilingual staff, and dedicate a portion of its patient days to indigent and Medicaid patients. There was no competent proof to establish, however, that such needs were not met, or would not be met, by the existing facilities.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the application of Mercy for a certificate of need to convert 29 medical/surgical beds to 29 long-term substance abuse beds be DENIED. DONE AND ORDERED this 4th day of February, 1987, in Tallahassee, Florida. WILLIAM J. KENDRICK 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 4th day of February, 1987.
The Issue Whether there is a need for an additional 31 short-term psychiatric beds for Broward County?
Findings Of Fact I. General. History of Case. In June of 1984, the Petitioner filed an application with the Respondent for a certificate of need to add 31 short- term psychiatric beds to its existing facility. The certificate of need sought by the Petitioner was assigned certificate of need #3372 by the Respondent. The Respondent denied the Petitioner's application for certificate of need #3372. On October 25, 1984, the Petitioner filed a Petition for Formal Administrative Hearing with the Respondent challenging its proposed denial of the Petitioner's application. The Petition was filed with the Division of Administrative Hearings by the Respondent and was assigned case number 84-4037. Biscayne, Memorial and Charter were granted leave to intervene by Orders dated January 28, 1985, April 26, 1985 and July 9, 1985, respectively. The final hearing was held on November 19 and 21, 1985 in Ft. Lauderdale, Florida and February 24 and 25, 1986 in Tallahassee, Florida. The Petitioner's Proposal. The Petitioner originally sought to add 31 short-term psychiatric beds to its existing facility. If approved, the additional beds would have increased its current licensed beds from 334 to 365 beds. The Petitioner proposed to meet projected need for short-term psychiatric beds in Broward County for 1989. In its original application, the Petitioner proposed to provide services to children, adolescents, adults and the elderly. No distinct psychiatric units were proposed. The total cost of the original proposal was estimated to be $209,368.00. At the final hearing, the Petitioner proposed to relinquish 31 medical/surgical beds and to add 31 short-term psychiatric beds to meet projected need for short-term psychiatric beds in Broward County for 1989. The Petitioner will end up with a total of 334 licensed beds, the same number it now has, if its application is approved. The total cost of the proposal presented at the final hearing was $337,169.00, which is accurate and reasonable. The 31 proposed beds will be divided into a 15-bed dedicated adolescent unit and a 16-bed dedicated geropsychiatric unit. Adults will generally not be treated by the Petitioner. Involuntary admissions will be treated by the Petitioner, although there was some evidence to the contrary. The sixth floor of the Petitioner's existing facility will be converted into space for the new psychiatric units. The Petitioner changed the estimated staffing for its proposal between the time it filed its original application and the final hearing. The changes were not significant. During the 1985 legislative session, the Florida Legislature enacted Section 394.4785(1)(b), Florida Statutes (1985). This,, Section requires that most adolescents be separated from other patients for purposes of psychiatric treatment. Some of the modifications of the Petitioner's application which were made at the final hearing were made in order to conform with this Section. The changes in the Petitioner's proposal which were made between the time it filed its original application with the Respondent and the time of the final hearing are not substantial enough to require that the Petitioner's application, as modified, be remanded to the Respondent for further consideration. The Parties; Standing. The Petitioner is a 334-bed, for-profit, general acute-care hospital. The Petitioner is a full service hospital providing general medical services. The Petitioner has a medical staff of more than 400 physicians, including a department of psychiatry. The Petitioner is owned by National Medical Enterprises, one of the largest health care providers in the country. The Petitioner is located in Hollywood, Florida, which is located in the southern portion of Broward County, Florida. Broward County is the only County in the Respondent's service district 10. The Petitioner's primary service area consist of the southern portion of Broward County from State Road 84 in the North to the Broward-Dade County line in the South. Memorial is a not-for-profit general acute care hospital located in southern Broward County. Memorial holds License #1737, issued on June 1, 1985, which authorizes Memorial to operate 74 short-term psychiatric beds. This license is valid for the period June 1, 1985 to May 31, 1987. Memorial was also authorized to operate 74 short-term psychiatric beds in its license issued for the 2-year period prior to June 1, 1985. Memorial is located a short distance from where the Petitioner is located in southern Broward County. Memorial and the Petitioner share the same general primary service area. Most of the physicians on the staff at Memorial are also on the Petitioner's staff. Memorial is subsidized by tax revenues for providing indigent care for southern Broward County. About 17 percent of Memorial's revenue is attributable to bad debt and indigent care. If the Petitioner's application is approved it is likely that the Petitioner will take patients from Memorial. It is also likely that the patients taken from Memorial will be other than indigent patients. If the Petitioner were to achieve a 75 percent occupancy rate and 50 percent of its patients come from Memorial, Memorial would lose a little over $1,000,000.00 in terms of 1985 dollars. It is unlikely, however, that the Petitioner will achieve an occupancy rate of 75 percent and, more importantly, it is unlikely that 50 percent of the Petitioner's patients will come from Memorial. The loss of patients from Memorial which would be caused by approval of the Petitioner's application will, however, result in a financial loss to Memorial which may effect its ability to provide quality care. Additionally, the loss in paying patients could increase the percentage of indigent patients at Memorial and, because a portion of the cost of caring for indigents is covered by paying patients at Memorial, could result in a further loss in revenue and an increase in tax support. The public may have difficulty accepting a public hospital, such as Memorial, as a high-quality hospital if the public hospital is perceived to be a charity hospital. It is therefore important for a public hospital to attract a significant number of paying patients to its facility to avoid such an image. It is unlikely that the number of patients which may be lost to the Petitioner by Memorial is sufficient to cause the public to perceive that Memorial is a charity hospital. Biscayne is a 458-bed, general acute-care hospital located on U.S. 1 in northern Dade County, Florida, just south of the Broward County line. Biscayne's facility is located within about 5 miles of the Petitioner's facility. Biscayne is about a 5 to 10 minute drive from the Petitioner. Dade County is not in service district 10. It is in service district 11. Of the 458 licensed beds at Biscayne, 24 are licensed as short-term psychiatric beds and 24 are licensed as substance abuse beds. The rest are licensed as medical/surgical beds. Ten of the medical/surgical beds at Biscayne are used as a dedicated 10-bed eating disorder (anoxeria nervosa and bulimirexia) unit. These 10 beds are not licensed for such use. A separate support staff is used for the 10-bed eating disorder unit. Approximately 60 percent of Biscayne's medical staff of approximately 400 physicians are residents of Broward County. Most of these physicians are also on the medical staff of other hospitals, principally the Petitioner, Memorial and Parkway Regional Medical Center, which is located in northern Dade County. Most of its staff have their business offices in southern Broward County. Biscayne's service area includes southern Broward County and northern Dade County. Approximately 60 percent of Biscayne's patients are residents of southern Broward County. Biscayne markets its services in southern Broward County. Eighty percent of Biscayne's psychiatric patients are elderly. Many types of psychotic and psychiatric disorders are treated at Biscayne. Biscayne offers psycho-diagnostic services, crisis stabilization services, shock therapy services, individual therapy services and group therapy services. Biscayne has had difficulty in recruiting qualified staff for its psychiatric unit. Biscayne currently has 4 vacancies for registered nurses, 4 vacancies for mental health assistants and 1 vacancy for an occupational therapist in its psychiatric unit. Biscayne recruits nurses who are certified in mental health nursing. They have not always been successful in finding such nurses. Therefore, Biscayne provides educational programs to help train its nursing staff. These programs are necessary because of the unavailability of experienced nurses for its psychiatric unit. The Petitioner has projected that most of its patients for its proposed psychiatric units will come from southern Broward County, where Biscayne gets approximately 60 percent of its patients. The Petitioner plans to try to convince psychiatrists currently using existing providers, except Hollywood Pavilion, to refer their patients to the proposed psychiatric units. Since Biscayne and the Petitioner share some of the same physicians, it is likely that many of the patients cared-for by the Petitioner will come form Biscayne and other providers in southern Broward County, including Memorial. The loss of patients at Biscayne, if the Petitioner's proposal is approved, will result in a loss of revenue to Biscayne which may affect its ability to provide quality care. Charter was an applicant for a certificate of need to construct a free-standing psychiatric facility in Broward County. In its application Charter sought approval of long-term and short-term psychiatric beds. Charter's application was filed with the Respondent in August of 1983. It was filed for review by the Respondent in a batching cycle which preceded the batching cycle in which the Petitioner's application was filed. In December of 1983, the Respondent proposed to approve Charter's application and authorize a project consisting of 16 short-term adolescent psychiatric beds, 16 long-term adolescent psychiatric beds, 16 long-term substance abuse beds and 12 long-term children's psychiatric beds. The Respondent's proposed approval of Charter's application was challenged. Following an administrative hearing, it was recommended that Charter's application be denied. Final agency action had not been taken as of the commencement of the hearing in this case. Subsequent to the date on which the final hearing of this case commenced, the Respondent issued a Final Order denying Charter's certificate of need application. This Final Order is presently pending on appeal to the First District Court of Appeal. Charter does not have an existing facility offering services similar to those proposed by the Petitioner in Broward County or anywhere near the Petitioner's facility. When the Orders allowing Memorial, Biscayne and Charter to intervene were issued by Hearing Officer Sherrill, Mr. Sherrill determined that if the Intervenor's could prove the facts alleged in their Petition to Intervene they would have standing to participate in this case. Memorial and Biscayne have in fact proved the allegations contained in their Petitions to Intervene. Based upon all of the evidence, it is therefore concluded that Memorial and Biscayne have standing to participate in this proceeding. Both Memorial and Biscayne will probably lose patients to the Petitioner if its proposal is approved resulting in a loss of revenue. This loss could affect quality of care at Memorial and Biscayne. Also, it is possible that both would lose some of their specialized nursing personnel to ;the Petitioner to staff its proposed psychiatric units. Charter has failed to establish that it has standing to participate in this proceeding. The potential injury to Charter is too speculative. II. Rule 10-5.11(25), F.A.C. A. General. Whether a certificate of need for short-term psychiatric beds should be approved for Broward County is to be determined under the provisions of Section 381.494(6)(c), Florida Statutes (1985), and the Respondent's rules promulgated thereunder. In particular, Rule 10-5.11(25), F.A.C., governs this case. Under Rule 10-5.11(25)(c), F.A.C., a favorable determination will "not normally" be given on applications for short-term psychiatric care facilities unless bed need exists under Rule 10-5.11(25)(d), F.A.C. B. Rule 10-5.11(25)(d) , F.A.C. Pursuant to Rule 10-5.11(25)(d)3, F.A.C., bed need is determined 5 years into the future. In this case, the Petitioner filed its application with the Respondent in 1984, seeking approval of additional short-term psychiatric beds for 1989. The Petitioner did not change this position prior to or during the final hearing. Therefore, the planning horizon for purposes of this case is 1989. Under Rule 10-5.11(25)(d)3, F.A.C., bed need is determined by subtracting the number of "existing and approved" beds in the service district from the number of beds for the planning year based upon a ratio of .35 beds per 1,000 population projected for the planning year in the service district. The population projection is to be based on the latest mid-range projections published by the Bureau of Economic and Business Research at the University of Florida. Bed need is determined under the Respondent's rules on a district-wide basis unless the service district has been sub- divided by the Respondent. District 10 has not been subdivided by the Respondent. Therefore, bed need for purposes of this case under Rule 10-5.11(25)(d), F.A.C., is to be determined based upon the population projections for all of Broward County for 1989. The projected population for Broward County for 1989 is 1,228,334 people. Based upon the projected population for Broward County for 1989, there will be a need for 430 short-term psychiatric beds in Broward County in 1989. The evidence at the final hearing proved that there are currently 427 licensed short-term psychiatric beds in Broward County. During the portion of the final hearing held in November of 1985, evidence was offered that proved that there were also 16 approved short-term psychiatric beds for Broward County. These short-term beds were part of the application for the certificate of need sought by Charter. Subsequently, however, a Final Order was issued by the Respondent denying Charter's application. Therefore, the 16 short-term psychiatric beds sought by Charter do not constitute "existing and approved" short-term psychiatric beds in Broward County for purposes of this case. Subsequent to the conclusion of the final hearing in this case, the First District Court of Appeal reversed a Final Order of the Respondent denying an application for a certificate of need for a free-standing 10 -bed psychiatric facility, including 80 additional short-term psychiatric beds, for Broward County. Balsam v. Department of Health and Rehabilitative Services, So.2d (Fla. 1st DCA 1986). As indicated in Finding of Fact 23, Memorial is licensed to operate 74 short-term psychiatric beds. Memorial is in fact operating all 74 of these licensed beds. Memorial filed an application with the Respondent for certificate of need #1953 in October of 1981 in which Memorial indicated that it planned to reduce the number of short-term psychiatric beds it had available by 24 beds. Memorial's certificate of need application involved an expenditure of capital and did not specifically involve an application for a change in bed inventory at Memorial. Memorial also represented that it would reduce the number of its available short-term psychiatric beds by 24 in a bond prospectus it issued in September of 1983. The Respondent approved Memorial's certificate of need application. Despite Memorial's representations that it would reduce its short-term psychiatric bed inventory, the beds are still in use in Broward County. Memorial has no plans to close any beds and the Respondent does not plan to take any action against Memorial to require it to stop using 24 of its short-term psychiatric beds. Hollywood Pavilion is licensed to operate 46 short- term psychiatric beds in Broward County. In 1985, 475 patients were admitted to Hollywood Pavilion and its occupancy rate was 62.3 percent. In fact, Hollywood Pavilion had more admissions than Florida Medical Center had to its psychiatric unit. It therefore appears that other physicians find Hollywood Pavilion acceptable. Hollywood Pavilion is accredited by the Joint Commission on Accreditation of Hospitals. The Petitioner presented the testimony of a few physicians who questioned the quality of care at Hollywood Pavilion. These physicians indicated that they did not use Hollywood Pavilion. At least one of the physicians indicated, however, that he did refer patients to other physicians whom he knew admitted patients to Hollywood Pavilion despite his feeling that the quality of care at Hollywood Pavilion was poor. This action is inconsistent with that physician's opinion as to the lack of quality of care at Hollywood Pavilion. His opinion is therefore rejected. The other physicians' opinions are also rejected because very little evidence was offered in support of their opinions and because of the contrary evidence. Based upon a consideration of all of the evidence concerning the quality of care at Hollywood Pavilion, it is concluded that the Petitioner failed to prove that the 46 short-term psychiatric beds licensed for use and available for use at Hollywood Pavilion should not be counted as existing short- term psychiatric beds in Broward County. Coral Ridge Hospital is licensed to operate 74 short- term psychiatric beds in Broward County. The average length of stay at Coral Ridge Hospital during 1984 and 1985 was almost 80 days. The average length of stay at Coral Ridge Hospital has been in excess of 40 days since 1980 and in excess of 60 days since 1983. The average length of stay at Coral Ridge Hospital is in excess of the average length of stay for which short-term psychiatric beds are to be used under the Respondent's rules. Rule 10-5.11(25)(a), F.A.C., provides that short-term beds are those used for an average length of stay of 30 days or less for adults and 60 days or less for children and adolescents under 18 years of age. Rule 10-5.11(26)(a), F.A.C., provides that long-term beds are those used for an average length of stay of 90 days or more. The psychiatric beds at Coral Ridge Hospital, based upon an average length of stay for all of its beds, falls between the average length of stay for short-term beds and long-term beds. The occupancy rate at Coral Ridge Hospital for 1985 was between 40 percent and 50 percent. Therefore, it is possible that a few patients at Coral Ridge Hospital with a very long length of stay could cause the overall average length of stay of the facility to be as long as it is. Coral Ridge Hospital will probably take short-term psychiatric patients because of its low occupancy rate. Therefore, there are at least 29 to 37 short-term psychiatric beds available for use as short-term psychiatric beds at Coral Ridge Hospital. The Petitioner failed to prove how many of the licensed short-term psychiatric beds at Coral Ridge Hospital are not being used for, and are not available for use by, short-term psychiatric patients in Broward County. It cannot, therefore, be determined how many, if any, of the licensed short-term beds at Coral Ridge Hospital should not be treated as existing short-term psychiatric beds in Broward County. Based upon the foregoing, the 427 licensed short-term psychiatric beds in Broward County should be treated as "existing" beds for purposes of determining the need for short- term psychiatric beds under Rule 10-5.11(25)(d), F.A.C. There is a net need for short-term psychiatric beds in Broward County for 1989 of only 3 additional beds under Rule 10- 5.11(25)(d)3, F.A.C. If the 80 short-term psychiatric beds approved by the First District Court of Appeal in Balsam are taken into account, there will be a surplus of 77 short-term psychiatric beds in Broward County for 1989 under Rule 10- 5.11(25)(d)3, F.A.C. Based upon an application of Rule 10-5.11(25)(d)3, F.A.C., there is no need for the additional 31 short-term psychiatric beds sought by the Petitioner. Rule 10-5.11(25)(d)1, F.A.C., provides that a minimum of .15 beds per 1,000 population should be located in hospitals holding a general license to ensure access to needed services for persons with multiple health problems. Some patients who need psychiatric care also need other medical services which can better be obtained in an acute care hospital. This fact is taken into account by the requirement of Rule 10-5.11(25)(d)1, F.A.C. Based upon the projected population for Broward County in 1989, there should be a minimum of 184-short-term psychiatric beds in hospitals holding a general license in Broward County. There are currently 243 short-term psychiatric beds in hospitals holding a general license in Broward County. Therefore, the standard of Rule 10-5.11(25)(d)1, F.A.C., has been met without approval of the Petitioner's proposal. There is no need for additional short-term psychiatric beds in general hospitals in Broward County for 1989. Rule 10-5.11(25)(d)4, F.A.C., provides that applicants for short-term psychiatric beds must be able to project an occupancy rate of 70 percent for its adult psychiatric beds and 60 percent for its adolescent and children's psychiatric beds in the second year of operation. For the third year of operation, the applicant must be able to project an 80 percent adult occupancy rate and a 70 percent adolescent and children's occupancy rate. The beds sought by the Petitioner will be managed by a professional psychiatric management company: Psychiatric Management Services (hereinafter referred to as "PMS"). PMS is owned by Psychiatric Institutes of America, a subsidiary of National Medical Enterprises. Because of the lack of need for additional short-term psychiatric beds in Broward County, it is doubtful that the Petitioner can achieve its projected occupancy rates as required by Rule 10-5.11(25)(d)4, F.A.C. Rules 10-5.11(25)(d)5 and 6, F.A.C., require that certain occupancy rates normally must have been met in the preceding 12 months before additional short-term psychiatric beds will be approved. The facts do not prove whether the occupancy rates provided by Rule 10-5.11(25)(d)5, F.A.C., have been met because the statistics necessary to make such a determination are not available. The evidence failed to prove that the occupancy rates of Rule 10- 5.11(25)(d)6, F.A.C. have been met. The average occupancy rate for short-term psychiatric beds in Broward County for 1985 was between 64.8 percent and 68.4 percent. Occupancy rates in Broward County for short-term psychiatric beds have not reached 71 percent since 1982. These rates are well below the 75 percent occupancy rate provided for in Rule 10-5.11(25)(d)6, F.A.C. This finding is not refuted by the fact that Florida Medical Center added 59 beds in 1984 and the fact that occupancy rates at most general hospitals exceeded 75 percent in 1985. Based upon the average occupancy rate in Broward County for 1985, there were approximately 100 empty short-term psychiatric beds in Broward County on any day. Rule 10-5.11(25)(d)7, F.A.C. requires that short-term psychiatric services provided at an inpatient psychiatric hospital should have at least 15 designated beds in order to assure specialized staff and services at a reasonable cost. The Petitioner's proposal to add 31 short-term psychiatric beds meets this requirement of the rule. C. Rule 10-5.11(25)(e), F.A.C. Rule 1O-5.11(25)(e)1, F.A.C., requires that an applicant prove that its proposal is consistent with the needs in the community as set out in the Local Health Council plans, local Mental Health District Board plans, State Mental Health Plan and needs assessment data. The Petitioner has failed to meet this requirement. The Petitioner's proposal is inconsistent with the District 10 Local Health Plan, the Florida State Health Plan and State and Local Mental Health Plans. In particular, the Petitioner's proposal is inconsistent with the following: The District 10 Local Health Plan's recommendation that applications not be approved if approval would result in an excess number of beds under the Respondent's bed need methodology; The District 10 Local Health Plan's recommendation concerning occupancy standards for the district (75 percent during the past 12 months); The position of the Florida State Health Plan that inpatient psychiatric services are a setting of last resort; The recommendation of the District 10 Mental Health Plan that alternatives to hospitalization for psychiatric services should be encouraged; and The recommendation of the Florida State Mental Health Plan that less restrictive treatment alternatives should be encouraged. Rule 10-5.11(25)(e)3, F.A.C., requires that applicants indicate the amount of care to be provided to underserved groups. The Petitioner's representations concerning its plans to provide indigent care contained in its application are misleading, in that the Petitioner represented that it would not turn away indigents. At the final hearing, the Petitioner indicated that it will generally provide care to indigents only on an emergency basis. Patients who need indigent care on a non-emergency basis will be referred to Memorial. Also, once an indigent patient who needs emergency care has stabilized, that patient will be transferred to Memorial for care. The Petitioner accepts few Medicaid and indigent patients. During 1985, the Petitioner treated 21 Medicaid patients out of a total of 6,800 patients. Only 1.5 percent of its total revenue was for uncompensated care. During 1984, the Petitioner treated 22 Medicaid patients out of a total of 7,321 patients. Only 1.2 percent of its total gross revenue was for uncompensated care. Memorial is subsidized by tax revenues for providing indigent care, or southern Broward County. Because Memorial provides indigent care, indigent patients are usually referred to Memorial if they do not need emergency care or are transferred to Memorial after they stabilize if they do need emergency care. There are other hospitals in northern Broward County which provide similar indigent care. It is therefore common practice to refer patients to those hospitals. Rule 10-5.11(25)(e)5, F.A.C., provides that development of new short- term psychiatric beds should be through the conversion of underutilized beds in other hospital services. The Petitioner's proposal to convert 31 medical/surgical beds for use as short-term psychiatric beds meets this provision. Rule 10-5.11(25)(e)7, F.A.C., provides that short- term psychiatric services should be available within a maximum travel time of 45 minutes under average travel conditions for at least 90 percent of the service area's population. There is no geographic access problem in Broward County. At least 90 percent of the population of Broward County is within a maximum of 45 minutes driving time under average driving conditions to existing short-term psychiatric services in Broward County. The Petitioner's proposal will not significantly enhance geographic access in Broward County. III. Statutory Criteria. Need for Services. The Respondent has approved two certificates of need authorizing the addition of a total of 135 long-term psychiatric beds for Broward County. The addition of 135 long-term beds probably means that additional short-term beds in Broward County which have been used for patients requiring longer treatment will be available. If the additional long-term beds free up short-term beds, the occupancy rate of short-term psychiatric beds in Broward County would be even less than it has been during the past 12 months, if other things remain equal. Both Memorial and Florida Medical Center have been using short-term psychiatric beds for the care of long-term patients. Once the new long-term psychiatric beds are operational, more short-term psychiatric beds will be available in Broward County. Existing Providers. In addition to the short-term psychiatric beds available at Coral Ridge Hospital and Hollywood Pavilion, short- term psychiatric beds are available at the following existing facilities in the service district: Ft. Lauderdale Hospital: 64 beds Florida Medical Center: 74 beds Imperial Point: 47 beds Broward General Medical Center: 48 beds There is no geographic distribution problem in district 10. Generally, the Petitioner did not prove that existing short-term psychiatric beds in Broward County are not available, efficient, appropriate, accessible, adequate or providing quality of care. The Petitioner also did not prove that existing facilities are over-utilized. No new services are proposed by the Petitioner. The evidence did prove that there is usually a waiting list for short-term psychiatric beds at Memorial and that physicians have resorted to various devices to get their patients into short-term psychiatric beds at Memorial. Specialized adolescent psychiatric services are available in the service district at Ft. Lauderdale Hospital and at Florida Medical Center. Ft. Lauderdale Hospital has 24 short- term psychiatric beds dedicated to the treatment of adolescents. Florida Medical Center has 20 short-term psychiatric beds dedicated to the treatment of adolescents. Broward General Medical Center and Imperial Point also provide children/adolescent services. Treatment for eating disorders is provided and available at Imperial Point and Florida Medical Center. Florida Medical Center solicits patients from all parts of the service district. Geropsychiatric short-term psychiatric beds are available in the service district at Hollywood Pavilion, Imperial Point and Ft. Lauderdale Hospital. Florida Medical Center has a closed adult psychiatric unit and often treats persons over 60 years of age. It also has a 26-bed adult short-term psychiatric unit with 2 specialized treatment programs: one for eating disorders and the other for stress and pain management. The Petitioner has proposed to provide a dedicated geropsychiatric unit to meet the needs of geriatric patients which are different from those of adults generally. Although there are no such dedicated geropsychiatric units in the service district, the Petitioner failed to prove that geriatrics are not receiving adequate care from existing providers. Quality of Care. The Petitioner is accredited by the Joint Commission on Accreditation of Hospitals. The Petitioner has established adequate quality control procedures, including educational programs and a quality assurance department. These quality control procedures will also be used to insure quality of care in the proposed psychiatric units. The psychiatric units will be managed by PMS. PMS specializes in the management of psychiatric units in acute care hospitals. PMS has programs for adolescents and geriatrics. These programs will be available for use in the proposed psychiatric units. PMS also has a large variety of programs, services and specialists available to establish and maintain quality of care at the Petitioner. The Petitioner will be able to provide quality of care. Alternatives. The Petitioner did not prove that available and adequate facilities which may serve as an alternative to the services it is proposing do not exist in Broward County. Economies of Scale. The Petitioner's parent corporation, National Medical Enterprises has purchasing contracts available for use by the Petitioner in purchasing items needed for the proposed psychiatric units. These contracts can result in a reduction of costs for the proposed project. Staff Resources. PMS will help in recruiting staff for the proposed psychiatric units. Recruiting will be done locally but the Petitioner also has the ability to recruit specialized staff on a broader geographic scale. There is a shortage of nursing personnel for psychiatric services in southern Broward County and northern Dade County. Since the Petitioner plans to recruit locally, this could cause existing providers to lose specialized nursing personnel to the Petitioner. If the Petitioner causes vacancies at existing facilities, this could adversely affect quality of care. Financial Feasibility. The total projected cost of the project ($337,169.00) can easily be provided by National Medical Enterprises, the parent corporation of the Petitioner. The Petitioner's financial projections are unrealistic to the extent of the projected utilization and revenue for the proposed psychiatric units. Based upon the projected need of only 3 short-term psychiatric beds (or possibly a surplus of 77 beds) for 1989, the Petitioner's projected utilization and revenue for its proposal is rejected. The Petitioner has proved immediate financial feasibility but has failed to prove the proposal is financially feasible in the long-term. Impact of Proposal. The Petitioner's proposal could adversely effect the costs of providing health services in Broward County. This is especially true in light of the lack of need for additional short-term psychiatric beds in Broward County. Because of the high quality of the services the Petitioner proposes to provide, competition in Broward County could be enhanced and ultimately benefit consumers, if there was a need for the proposed additional beds. If a hospital has an image of being a charity hospital serving the needs of underserved groups, the hospital can experience difficulty in attracting paying patients and have difficulty in getting consumers to accept the high quality of the services of the hospital. Although it is likely that the Petitioner will take paying patients away from Memorial, it is unlikely that the number of patients lost could substantially affect the public's image of Memorial. The effect the Petitioner's proposal will have on Memorial is limited by the fact that the Petitioner is only seeking 31 beds and they are only short-term psychiatric beds. Memorial provides a variety of services and psychiatric services are only a small part of those services. I. Construction. It the Petitioner's proposal is approved, 11,500 square feet on the sixth floor of the Petitioner's hospital will be renovated and converted for use for the two proposed psychiatric units. The renovations can be made quickly. There will be space for 16 beds in a geropsychiatric unit and 15 beds in an adolescent unit. There will be a separate lobby for the psychiatric units and the elevators to the lobby will be strictly controlled. The two units will be separated and adequate security precautions will be taken to keep the two units separate. The ceilings in both units will be modified to insure security. Nurse stations will be provided for both units. Visibility from the nurse stations will be fair. Space is provided for a dayroom for each unit and there will be a class room and four rooms for therapy. These spaces will barely be adequate to meet the various needs of patients. With adequate planning and coordination, patients' needs can be met. There is inadequate space in the proposed facility for physical activities for patients.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the certificate of need application filed by the Petitioner for certificate of need #3372 should be denied. DONE and ENTERED this 15th day of May, 1986, in Tallahassee, Florida. LARRY J. SARTIN 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 15th day of May, 1986. COPIES FURNISHED: Michael J. Glazer, Esquire AUSLEY, McMULLEN, McGEHEE, CAROTHERS & PROCTOR Post Office Box 391 Tallahassee, Florida 32302 Lesley Mendelson, Esquire Assistant General Counsel Department of Health and Rehabilitative Services Building One, Suite 407 1323 Winewood Boulevard Tallahassee, Florida 32301 James C. Hauser, Esquire MESSER, VICHERS, CAPARELLO, FRENCH & MADSEN Post Office Box 1876 Tallahassee, Florida 32302 Kenneth G. Oertel, Esquire Eleanor A. Joseph, Esquire OERTEL & HOFFMAN, P.A. Post Office Box 6507 Tallahassee, Florida 32313-6507 Cynthia S. Tunnicliff, Esquire CARLTON, FIELDS, WARD, EMMANUEL SMITH & CUTLER, P.A. Post Office Drawer 190 Tallahassee, Florida 32302 Mr. William Page, Jr. Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue The issues are whether Respondent violated Sections 458.331(1)(m), 458.331(1)(q), 458.331(1)(s), and 458.331(1)(t), Florida Statutes, and if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of medicine pursuant to Section 20.42, Florida Statutes, and Chapters 455 and 458, Florida Statutes. Respondent is licensed to practice medicine in the state of Florida. She holds license number ME 0028693. 3 Respondent, a native of Manila, Philippines, attended medical school and received her M.D. degree in 1965 from Manila Central University. She completed an internship and residency in OB-GYN in Manila before immigrating to the United States in 1968. Respondent became a citizen of the United States in 1972. She obtained her license to practice medicine in the state of Florida in 1973. Thereafter, Respondent completed a residency in general practice in Portsmouth, Virginia, and a residency in pathology in Norfolk, Virginia. She is not board certified. Prior to October 23, 1996, Respondent was engaged in a solo practice of general and family medicine. Except for this proceeding, Respondent has never been the subject of disciplinary action in connection with her medical license. She has never had a medical malpractice claim asserted against her. Fiorinal No. 3 or Fiorinal with codeine is a legend drug as defined by Section 465.003(7), Florida Statutes. Fiorinal No. 3 is also a Schedule III controlled substance which is listed in Section 893.03, Florida Statutes. In March of 1991, Respondent began treating Patient G.C. for symptoms related to menopause and anxiety. Respondent's record of G.C.'s initial visit indicates that G.C. is allergic to penicillin and codeine. G.C. made 46 visits to Respondent's office from March 12, 1991 through February 21, 1995. On 37 of these visits, Respondent's records note G.C.'s allergy to codeine. On September 19, 1991, G.C. complained that her knee and calf on her right leg were hurting. Respondent ordered a venogram and prescribed Lorcet Plus for G.C. On December 13, 1991, G.C. complained that she had a cough, sore throat, and congestion. Respondent prescribed Lorcet Plus for G.C. in addition to other medication. G.C. made 15 visits to Respondent's office from June of 1995 through September of 1996. Respondent's records of these visits do not note G.C.'s allergy to codeine. Respondent did not charge G.C. for six of these visits. G.C. complained of pain and swelling in her left elbow on October 31, 1995. Respondent treated G.C. for bursitis and gave her a prescription for Fiorinal No. 3. Respondent did not charge G.C. for this visit. G.C. complained of pain in her elbow again on December 19, 1995. Respondent treated G.C. for bursitis and prescribed Fiorinal No. 3. Respondent did not charge G.C. for this visit. Respondent's records indicate that she saw G.C. for the last time on September 20, 1996. The records do not indicate the purpose of the visit. There is a notation which states, "Last time I'll give this Rx to her," followed by three prescriptions including Fiorinal No. 3. Respondent testified that she prescribed Fiorinal for G.C. because she had previously taken Lorcet with no problems or reactions. Lorcet, like Fiorinal, contains codeine. Allergic reactions to codeine can range from mere rashes to life-threatening problems. Accordingly, prescribing Fiorinal No. 3 for G.C. was contraindicated. Respondent concedes that G.C.'s medical chart was deficient in several ways. It failed to contain an adequate medical history, failed to reflect proper physical examinations, failed to reflect adequate tests and lab studies, and failed to fully document conditions/symptoms to warrant treatment rendered, including medications prescribed. Respondent and G.C. developed a social relationship in 1995. Respondent and G.C. were taking trips together, going out to eat together, and seeing each other quite often in a social setting. G.C. told Respondent that some investors in Sicily wanted to buy Respondent's medical practice. Respondent and the foreign investors could not agree on the terms of sale. Respondent lent G.C. a large sum of money in cash. G.C. would not re-pay the loan or acknowledge the debt. The friendship between G.C. and Respondent began to deteriorate. In March of 1996, G.C. contacted Lynn Flanders, a narcotics investigator from the Escambia County Sheriff's Department. G.C. informed Ms. Flanders that Respondent had written a prescription for Fiorinal No. 3 in G.C's name with the intention of diverting the medicine for her own consumption. The prescription was dated January 15, 1996. Respondent's records do not indicate that G.C. made a visit to Respondent's office in January of 1996. G.C. planned to meet Respondent at a restaurant on March 19, 1996. Before the meeting, Investigator Flanders had the prescription filled at a local drug store. She equipped G.C. with an audio listening device. Ms. Flanders also searched G.C.'s car and person. Finding no drugs or money in G.C.'s possession, the investigator gave the bottle of Fiorinal capsules to G.C. and sent her to meet Respondent at the restaurant. Investigator Flanders seated herself in the restaurant so that she could observe Respondent and G.C. during the meal. Respondent never left the table. Ms. Flanders was unable to observe G.C. when the confidential informant went to the ladies' room. The investigator did not see G.C. hand the prescription bottle to Respondent. After Respondent and G.C. ate lunch, they left the restaurant. Investigator Flanders subsequently discovered that the audio tape was inaudible. Ms. Flanders told G.C. to call the sheriff's office if the doctor gave her another prescription and asked her to get it filled. As referenced above, Respondent gave G.C. a prescription for Fiorinal No. 3 on September 20, 1996. Although the prescription was in G.C's name, Respondent intended to consume the medicine herself. G.C. contacted Investigator Flanders again. She told Ms. Flanders about the prescription. The investigator took the prescription and had it filled at a local drug store. G.C. planned to meet Respondent at another restaurant on September 15, 1996. Before the meeting, Investigator Flanders equipped G.C. with an audio listening device, searched her car and person, gave her the bottle of Fiorinal No. 3 capsules, and sent her to meet Respondent. Investigator Shelby and his partner arrived at the restaurant before G.C. or the Respondent. Investigator Shelby positioned himself in the restaurant so that he could observe G.C. and Respondent. Investigators located outside of the restaurant monitored the listening device. They recorded the conversation between Respondent and G.C. Investigator Shelby saw G.C. take the bottle containing 30 Fiorinal No. 3 capsules from her shirt pocket and pass it under the table to Respondent. Respondent leaned forward, accepted the bottle under the table, and placed it in her purse. Respondent left the restaurant and entered her vehicle. She was then placed under arrest. The bottle of medicine, containing 30 capsules, was recovered from her purse. Respondent's testimony that she did not intend to divert the narcotic for her own consumption is not persuasive. Criminal charges against Respondent are being processed through the Pretrial Intervention Program for nonviolent first offenders. Charges against Respondent will be dismissed if she does not commit any offense for ten months after March 27, 1997, and provided that she satisfactorily completes the program. As part of the ten-month probation, Respondent agreed to voluntary urinalysis and compliance with the mandates of her recovery program through the Physician's Recovery Network (PRN). Respondent has a history of chronic daily headaches and hypertension. She has been taking Fiorinal No. 3 which contains codeine and aspirin since 1972. Respondent was diagnosed with a bleeding ulcer just before her arrest in September of 1996. Her treating physician prescribed Fioricet which contains codeine but no aspirin. Respondent accepted this prescription without telling her treating physician about her codeine dependency. Respondent divorced her husband for the second time in August of 1996. Around the time of her arrest, Respondent experienced a lot of stress as a result of her relationship with her ex-husband. PRN is Florida's impaired practitioner program. Pursuant to contract with Petitioner, PRN offers educational intervention, treatment referral, and rehabilitation monitoring services for health care workers in Florida. The PRN's director, Dr. Roger Arthur Goetz, became aware of Respondent's arrest on October 3, 1996. On his recommendation, Respondent voluntarily agreed to undergo an evaluation by the following three doctors in Pensacola, Florida: (a) Dr. Rick Beach, an addiction specialist; (b) Dr. Doug H. Fraser, a board certified psychiatrist; and (c) Dr. Thomas Meyers, a psychologist. Dr. Beach and Dr. Meyers agreed that Respondent was impaired due to a substance abuse problem. All three doctors agreed that Respondent suffered from a depressive disorder and other psychological problems. Dr. Beach, the addictionologist, determined that Respondent had a dysfunctional relationship with her ex-husband, an unhealthy relationship with G.C., and a probable dependence on opiates. Dr. Fraser, Respondent's psychiatrist, diagnosed Respondent with generalized anxiety disorder and dysthymia. Generalized anxiety disorder is a life-long disorder from which the patient experiences a chronic sense of nervousness, tension, and worry. A patient suffering from this condition will have some physical symptoms such as gastrointestinal problems, headaches, muscle tension, or difficulty sleeping. Dysthymia is also a chronic life-long disorder which causes patients to suffer from chronic minor depression more days than not. On October 23, 1996, Respondent entered into a Voluntary Agreement to Withdraw from Practice with Petitioner. This agreement states that Respondent shall cease practicing medicine until Petitioner issues a Final Order in this case. On November 4, 1996, Respondent entered Jackson Recovery Center in Jackson, Mississippi. This facility was an in-patient substance abuse treatment center. Respondent's treating physician, Dr. Lloyd Gordon, admitted her for treatment with the following diagnosis: (a) Axis I, opioid dependence and dysthymia with anxiety; and (b) Axis II, avoidant and dependent traits. Respondent subsequently entered a residential treatment program, the Caduceus Outpatient Addictions Center (COPAC), in Hattiesburg, Mississippi. COPAC specializes in the treatment of physicians and other health care workers who abuse controlled substances. Respondent remained in this residential program for almost three months. She was discharged from COPAC on February 21, 1997. Respondent signed an Advocacy Contract with PRN the day that she was discharged from COPAC. The contract established a five-year monitoring period during which Respondent agreed to abide by certain terms and conditions, including but not limited to, the following: (a) to participate in a random urine drug and/or blood screen program; (b) to abstain from the use of controlled substances; (c) to attend group self-help meetings such as AA or NA; (d) to attend continuing care group therapy; and (e) to attend a twelve-step program for recovering professionals. In March of 1997, Respondent went to her office to see patients. She wrote prescriptions for some of these patients. She was under the impression that she could return to her practice because she had been therapeutically cleared to practice by COPAC. PRN learned that Respondent was practicing medicine in violation of her agreement to voluntarily withdraw from practice. PRN advised Respondent that she could not go into her office to see patients or write prescriptions until Petitioner gave her that right. Respondent immediately ceased her practice. Upon her discharge from COPAC, Respondent continued to see her psychiatrist, Dr. Fraser. In May of 1997, Respondent told Dr. Fraser that she was experiencing forgetfulness and panic attacks. She complained of having difficulty making decisions and sleeping. Respondent was feeling depressed and having suicidal thoughts. Dr. Fraser increased her antidepressant medication and referred her to a local counseling center. Respondent went to visit her family in California from May 25, 1997 through June 6, 1997. She did not tell Dr. Fraser that she was going out of town. However, she did tell one of the therapists from Dr. Fraser's office about the trip. Respondent saw Dr. Fraser again on June 18, 1997, when she returned to Pensacola. He made a tentative diagnosis of bipolar disorder and began appropriate treatment. Respondent was feeling better when she saw Dr. Fraser on June 25, 1997. Respondent moved to California to live with her sister on July 6, 1997. This move was necessary because Respondent had lost her home as well as her practice. While she was in California, Respondent saw a psychiatrist, Dr. Flanagan. She also attended AA meetings in California. Respondent returned to Pensacola a week before the hearing. She saw Dr. Fraser on August 21, 1997. Dr. Fraser was not aware that Respondent had been living in California and receiving treatment from Dr. Flanagan. During her visit with Dr. Fraser, Respondent admitted that she had a craving for codeine when she was tense. However, she denied use of any prescription drugs except those being currently ordered by her doctors. Respondent reported on-going mood swings even though Dr. Flanagan had increased her Depakote. She verbalized fantasies involving violent behavior toward G.C. Respondent revealed that she was experiencing grandiose delusions. She admitted that she was not ready to return to medical practice. Dr. Fraser concurs. Respondent needs intensive individual psychotherapy for at least six months on a weekly basis. At the time of the hearing, Respondent had not begun such therapy. The record indicates that Respondent was a caring and compassionate physician. Respondent's elderly patients testified that Respondent treated them with extraordinary concern when other doctors refused. Respondent's colleagues in nursing home settings attested to her skill and proficiency in the care of the elderly. None of these patients or associates were aware of Respondent's drug dependence or psychological problems before her arrest. Respondent is "in recovery" for her drug dependence. However, she is not mentally, emotionally, or psychologically ready to practice medicine with reasonable skill and safety for her patients.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Petitioner enter a Final Order indefinitely suspending Respondent's license to practice medicine until she is able to demonstrate the ability to practice with reasonable skill and safety followed by five years of probation with appropriate terms, conditions, and restrictions, and imposing an administrative fine in the amount of $4,000. DONE AND ENTERED this 22nd day of October, 1997, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of October, 1997. COPIES FURNISHED: John E. Terrel, Esquire Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 James M. Wilson, Esquire Wilson, Harrell and Smith, P.A. 307 South Palafox Street Pensacola, Florida 32501 Marm Harris, Executive Director Department of Health 1940 North Monroe Street Tallahassee, Florida 32399-0792 Angela T. Hall, Agency Clerk Department of Health 1317 Winewood Boulevard, Building 6 Tallahassee, Florida 32399-0700
The Issue The issues are whether Respondent is guilty of various deficiencies found during surveys of its adult living facility and, if so, the amount of the administrative fines.
Findings Of Fact Pursuant to a license issued by Petitioner, Respondent owns and operates New Horizon, an assisted living facility in Punta Gorda. The license is a standard license. Violeta Sebastian is the owner and president of Respondent and the administrator of the facility. On July 8, 1998, Petitioner conducted a survey of New Horizon. Petitioner's investigator found several residents sitting in the day room when he arrived at the facility between 9:00 a.m. and 9:30 a.m. Resident Number 3, who is very elderly, remained seated in an over-stuffed chair all morning. When staff helped her to the dining room at around 11:30 a.m., the investigator asked to see her buttocks area and found a Stage 2 pressure sore on the coccyx area. Resident Number 3, who was wearing adult briefs, had also urinated on herself at some earlier point in time. Resident Number 3 required the assistance of two staffpersons to get her to stand; she was unable to assist in this process. She also required the assistance of both staffpersons to walk, and she required complete assistance to change her briefs. The records concerning Resident Number 3 revealed nothing about the existence or treatment of a pressure sore or that staff had notified the resident's physician. An aide knew of the pressure sore for three days, but had not informed the administrator nor commenced treatment. The records also revealed that she was admitted to New Horizon on August 28, 1997, and her health assessment was conducted on September 29, 1997, which was 32 days after admission. A Stage 1 pressure sore is a reddened area. A Stage 2 pressure sore is a reddened area with a blister. A Stage 3 pressure sore occurs when the affected area is open to the muscle. A Stage 4 pressure sore is when the affected area is open to the muscle, bone, and tendon. Stage 2 pressure sores are susceptible to infection and may cause a loss of fluids, including protein, around the wound site. The pressure sore on this female resident was about two centimeters wide. As a result of these findings concerning Resident Number 3, Petitioner cited Respondent for Tags A 006, A 401, A 407, A 409, and A 700. Another investigator asked for the most current Radon test. The last Radon test, which the facility passed, was November 16, 1992, which meant that the facility had not been tested in almost five years and eight months. As a result of these findings, Petitioner cited Respondent for Tag A 202. The investigator checked the training records for two of four staffpersons and determined that two employees had not received the two hours' required training in resident behavior and handling abuse, neglect, and exploitation. The administrator thought that they had received the required training, but was unable to produce documentation of training. As a result of these findings, Petitioner cited Respondent for Tag A 504. The investigator checked the training records for four staffpersons and determined that they had not received the required training in assisting residents in the activities of daily living. The administrator said that this was an oversight and would be corrected. As a result of these findings, Petitioner cited Respondent for Tag A 505. The investigator could not determine who was in charge of medications. However, the administrator and one part-time employee were in charge of medications. As a result of these findings, Petitioner cited Respondent for Tag A 602. The investigator found a bottle of milk of magnesia in an unlocked refrigerator and a bag of medications in an unlocked kitchen drawer. As a result of these findings, Petitioner cited Respondent for Tag A 607. The investigator testified as to restraints of a resident found by another investigator in a 1996 survey and found by her in a 1998 complaint investigation. However, her testimony concerning the incident of which she had personal knowledge was vague and provides an insufficient basis on which to fine Respondent. As a result of these findings, Petitioner cited Respondent for Tag A 709. The investigator examined a ledger maintained by Respondent for one resident who was receiving certain federal benefits in the form of a monthly $35 check. Respondent's records do not document that it supplies the resident quarterly with a copy of this accounting, and staff and the administrator admitted to not supplying quarterly statements to the resident. As a result of these findings, Petitioner cited Respondent for Tag A 102. Petitioner did not produce admissible evidence to show that any violations were repeat violations.
Recommendation It is RECOMMENDED that the Agency for Health Care Administration enter a final order imposing an administrative fine against New Horizon's Adult Living, Inc., in the amount of $3000. DONE AND ENTERED this 6th day of April, 1999, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 6th day of April, 1999. COPIES FURNISHED: Ruben J. King-Shaw, Jr., Director Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Paul J. Martin, General Counsel Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Sam Power, Agency Clerk Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Karel Baarslag, Senior Attorney Agency for Health Care Administration State Regional Service Center 2295 Victoria Avenue Fort Myers, Florida 33901 Violeta D. Sebastian Qualified Representative New Horizon's Adult Living Facility 1391 Capricorn Boulevard Punta Gorda, Florida 33983
Findings Of Fact The application and project On October 15, 1986, Respondent, Florida Residential Treatment Centers, Inc. (FRTC), filed a timely application with the Respondent, Department of Health and Rehabilitative Services (Department), for a certificate of need to construct a 60-bed specialty hospital to be licensed as an intensive residential treatment program for children and adolescents in Broward County, Florida. On March 11, 1987, the Department proposed to grant FRTC's application, and petitioners, Florida Psychiatric Centers (FPC) and South Broward Hospital District (SBHD), timely petitioned for formal administrative review. FRTC is a wholly-owned subsidiary of Charter Medical Corporation (Charter). Currently, Charter owns, operates or has under construction 85 hospitals within its corporate network. Of these, 13 are general hospitals, and 72 are psychiatric hospitals. Notably, Charter now operates residential treatment programs in Newport News, Virginia, Provo, Utah, and Mobile, Alabama; and, is developing such a program in Memphis, Tennessee. Within the State of Florida, Charter operates psychiatric hospitals in Tampa, Jacksonville, Fort Myers, Miami, and Ocala. In connection with the operation of these facilities, Charter has established satellite counseling centers to screen patients prior to admission and to provide aftercare upon discharge. Of 20 such centers operated by Charter, one is located in Broward County and two are located in Dade County. The facility proposed by FRTC in Broward County (District X) will treat seriously emotionally disturbed children and adolescents under the age of 18. The patients admitted to the facility will have the full range of psychiatric diagnoses, with the probable exception of serious mental retardation and severe autism. FRTC will not treat patients who present themselves with a primary substance abuse diagnosis, nor will it admit patients who are actively dangerous. This distinguishes FRTC from an acute psychiatric hospital where actively dangerous patients requiring immediate medical intervention are often admitted. The anticipated length of stay at FRTC will vary depending upon the patient's responsiveness to treatment, but is reasonably expected to range between 6 months to 2 years, with an average of 1 year. The treatment programs to be offered at FRTC will be based upon a bio- psychosocial treatment model. This model assumes that the biological component of a patient's condition has been stabilized and that psychiatric medication will be administered solely to maintain this stabilized condition. The social component of the model is designed to resolve problems in interpersonal, family and peer relationships through educational groups, psychiatric co-therapeutic groups and family group therapy. The psychological component focuses primarily on developing personal understanding and insight to guide the patient toward self-directed behavior. Among the therapies to be offered at FRTC are individual, family, recreational, group and educational. Group therapy will be designed to resolve interpersonal problems and relationships, and focuses primarily on building trust among group members. Some group therapy sessions will also cover specific issues such as sex education, eating disorders, self-image and social skills. The goal of recreational therapy will be to teach patients to play appropriately, showing them how to give, take and share, and to follow and to lead. Recreational activities will be available both on and off campus. The goal of occupational therapy will be to develop skills used in work. For a child whose work is school, this often involves using special education techniques. For teenagers, occupational therapy also develops work skills, and prepares them for vocational training or employment. Family therapy is crucial because the family is she core of child development. Families will be invited to spend days with their children at FRTC where they will learn behavioral management techniques, and participate in parent education activities and multifamily groups. The school component of the program includes development of an individualized educational plan for each child. School will be conducted 4-5 hours a day. FRTC will utilize the level system as a behavioral management tool This system provides incentives for learning responsibility for one's own behavior and for functioning autonomously. The typical progress of a patient at FRTC will be as follows. First, a team which includes a psychiatrist, social worker, psychologist and teacher will decide, based upon available information, whether admission is appropriate. If admitted, a comprehensive assessment will be conducted within 10 days, a goal- oriented treatment program will be developed for each patient, designed to remedy specific problems. Discharge planning will begin immediately upon admission. A case manager will be involved to assure that the treatment modalities are well-coordinated. Finally, FRTC will provide aftercare upon discharge. Should any FRTC patients experience acute episodes, they will be referred to acute care psychiatric hospitals with which FRTC has entered into transfer agreements. Likewise, patients who require other medical attention will be referred to appropriate physicians Consistency with the district plan and state health plan. While the local health plan does not specifically address the need for intensive residential treatment programs (IRTPs) for children and adolescents, it does contain several policies and priorities that relate to the provision of psychiatric services within the district. Policy 2 contains the following relevant priorities when an applicant proposes to provide a new psychiatric service: ... Each psychiatric inpatient unit shall provide the following services: psychological testing/assessment, psychotherapy, chemotherapy, psychiatric consultation to other hospital departments, family therapy, crisis intervention, activity therapy, social services and structured education for school age patients, and have a minimum patient capacity of 20 and a relationship with the community mental health center. Facilities should be encouraged to provide for a separation of children, adolescents, adults, and geriatric patient' where possible. Greater priority should be given to psychiatric inpatient programs that propose to offer a broad spectrum of continuous care. ... Applicants should be encouraged to propose innovative treatment techniques such as, complementing outpatient and inpatient services or cluster campuses, that are designed to ultimately reduce dependency upon short term psychiatric hospital beds. New facilities should be structurally designed for conducive recovery, provide a least restrictive setting, provide areas for privacy, and offer a wide range of psychiatric therapies. Applicants should be encouraged to offer intermediate and follow-up care to reduce recidivism, encourage specialty services by population and age, engage in research, and offer a full range of complete assessment (biological and psychological). Additionally, the local plan contains the following policies and priorities which warrant consideration in this case: POLICY #3 Services provided by all proposed and existing facilities should be made available to all segments of the resident population regardless of the ability to pay. Priority #1 - Services and facilities should be designed to treat indigent patients to the greatest extend possible, with new project approval based in part on a documented history of provision of services to indigent patients. Priority #2 - Applicants should have documented a willingness to participate in appropriate community planning activities aimed at addressing the problem of financing for the medically indigent. POLICY #4 Providers of health services are expected to the extent possible to insure an improvement of the quality of health services within the district. Priority #1 - Applicants for certificate of need approval should document either their intention or experience in meeting or exceeding the standards promulgated for the provision of services by the appropriate national accreditation organization. Priority #2 - Each applicant for certificate of need approval should have an approved Patient Bill of Rights' `as part of the institution's internal policy. POLICY #5 Specialized inpatient psychiatric treatment services should be available by age, group and service type. For example, programs for dually diagnosed mentally ill substance abusers, the elderly, and children, should be accessible to those population groups. Priority #1 - Applicants should be encouraged to expand or initiate specialized psychiatric treatment services. The FRTC application is consistent with the local health plan. FRTC's program elements and facility design are consistent with those mandated by the local plan for mental health facilities, and its proposal offers a wide range of services, including follow-up care. FRTC intends to provide a minimum of 1.5 percent of its patient day allotment to indigent children and adolescents, and will seek JCAH accreditation and CHAMPUS approval. The state health plan addresses services similar to those being proposed by FRTC, and contains the following pertinent policies and statements: Mental health services are designed to provide diagnosis, treatment and support of individuals suffering from mental illness and substance abuse. Services encompass a wide range of programs which include: diagnosis and evaluation, prevention, outpatient treatment, day treatment, crisis stabilization and counseling, foster and group homes, hospital inpatient diagnosis and treatment, residential treatment, and long term inpatient care. These programs interact with other social and economic services, in addition to traditional medical care, to meet the specific needs of individual clients. STATE POLICIES As the designated mental health authority' for Florida, HRS has the responsibility for guiding the development of a coordinated system of mental health services in cooperation with local community efforts and input. Part of that responsibility is to develop and adopt policies which can be used to guide the development of services such that the needs of Florida residents are served in an appropriate and cost effective manner. Policies relating to the development of mental health services in Florida are contained in Chapter 394 and Chapter 230.2317, F.S. The goal of these services is: '... reduce the occurrence, severity, duration and disabling aspects of mental, emotional, and behavioral disorders.' (Chapter 394, F.S.) '... provide education; mental health treatment; and when needed, residential services for severely emotionally disturbed students.' (Chapter 230.2317, F.S.) Within the statutes, major emphasis has also been placed on patient rights and the use of the least restrictive setting for the provision of treatment. 'It is further the policy of the state that the least restrictive appropriate available treatment be utilized based on the individual needs and best interests of the patient and consistent with optimum improvement of the patient's condition.' (Chapter 394.459(2)(b), F.S.) 'The program goals for each component of the network are'... 'to provide programs and services as close as possible to the child's home in the least restrictive manner consistent with the child's needs.' (Chapter 230.2317(1)(b), F.S.) Additional policies have been developed in support of the concept of a 'least restrictive environment' and address the role of long and short term inpatient care in providing mental health services for severely emotionally disturbed (SED) children. These include: 'State mental hospitals are for those adolescents who are seriously mentally ill and who have not responded to other residential treatment programs and need a more restrictive setting.' (Alcohol, Drug Abuse and Mental Health Program Office, 1982) 'Combined exceptional student and mental health services should be provided in the least restrictive setting possible. This setting is preferably a school or a community building rather than a clinical or hospital environment.' (Office of Children Youth and Families, 1984) 'Alternative, therapeutic living arrangements must be available to SED students in the local areas, when family support is no longer possible, so that they may continue to receive services in the least restrictive way possible.' (Office of Children Youth and Families, 1984) 'SED students should not be placed in residential schools or hospitals because of lack of local treatment resources, either educational or residential.' (Office of Children Youth and Families, 1984). * * * Sufficient funding for the development of residential treatment and community support is necessary if the state is to fulfill its commitment to providing services for long term mentally ill persons. These services provide, in the long run, a more humane and cost effective means of meeting the mental health needs of Florida residents. Community services have been shown to be effective in rapidly returning the majority of individuals to their productive capacity and reducing the need for costly long term, institutional mental health services. There is, therefore, a need to proceed as rapidly as possible with the development of publicly funded services in those districts which are currently experiencing problems resulting from gaps in services. * * * Services for Adolescents and Children An additional issue which has been identified as a result of increased pressures for development of hospital based programs is the need to differentiate between services for adults and those for children and adolescents. Existing policy supports the separation of services for children and adolescents from those of adults and requires the development of a continuum of services for emotionally disturbed children. The actual need for both long and short term inpatient services for children and adolescents is relatively small compared to that of adults but is difficult to quantify. Providers, however, continue to request approval for long and short term adolescent and children services as a means of gaining access to the health care market. Continued development of long and short term inpatient hospital programs for the treatment of adolescents and children is contrary to current treatment practices for these groups and is, therefore, inappropriate without local data to support the need for these services. Such development can contribute to inappropriate placement, unnecessary costs of treatment, and divert scarce resources away from alternative uses. In addition, the following pertinent goals are contained in the state health plan: GOAL 1: ENSURE THE AVAILABILITY OF MENTAL HEALTH AND SUBSTANCE ABUSE SERVICES TO ALL FLORIDA RESIDENTS IN A LEAST RESTRICTIVE SETTING. * * * GOAL 2: PROMOTE THE DEVELOPMENT OF A CONTINUUM OF HIGH QUALITY, COST EFFECTIVE PRIVATE SECTOR MENTAL HEALTH AND SUBSTANCE ABUSE TREATMENT AND PREVENTIVE SERVICES. * * * GOAL 3: DEVELOP A COMPLETE RANGE OF ESSENTIAL PUBLIC MENTAL HEALTH SERVICES IN EACH HRS DISTRICT. * * * OBJECTIVE 3.1.: Develop a range of essential mental health services in each HRS district by 1989. * * * OBJECTIVE 3.2.: Place all clients identified by HRS as inappropriately institutionalized in state hospitals in community treatment settings by July 1, 1989. RECOMMENDED ACTIONS: 3.2a.: Develop a complete range of community support services in each HRS district by July 1, 1989. * * * OBJECTIVE 3.3.: Develop a network of residential treatment settings for Florida's severely emotionally disturbed children by 1990. The FRTC application is consistent with the state health plan which emphasizes the trend toward deinstutionalization, and the importance of education, treatment and residential services for severely emotionally disturbed children and adolescents rather than the traditional approach of institutional placement. Deinstutionalization assures more appropriate placement and treatment of patients, and is less costly from a capital cost and staffing perspective. The FRTC application also promotes treatment within the state, and will assist in reducing out-of-state placements. Need for the proposed facility The Department has not adopted a rule for the review of applications for IRTPs, and has no numeric need methodology to assess their propriety. Rather, because of the paucity of such applications and available data, the Department reviews each application on a case by case basis and, if it is based on reasonable assumptions and is consistent with the criteria specified in Section 381.705, Florida Statutes, approves it. In evaluating the need for an IRTP, the Department does not consider other residential treatment facilities in the district, which are not licensed as IRTP's and which have not received a CON, as like and existing health care services because such facilities are subject to different licensure standards. Under the circumstances, the Department's approach is rational, and it is found that there are no like and existing health care services in the district. While there are no like and existing health care services in the district, there are other facilities which offer services which bear some similarity to those being proposed by FRTC. These facilities include short-term and long-term residential treatment facilities, therapeutic foster homes and therapeutic group homes. These facilities are, however, operating at capacity, have waiting lists, and do not in general offer the breath or term of service proposed by FRTC. There are also short-term and long-term psychiatric hospitals within the district that include within their treatment modalities services similar to those proposed by the applicant. The short-term facilities are not, however, an appropriate substitute for children and adolescents needing long-term intensive residential treatment and neither are the long-term facilities from either a treatment or cost perspective. Notably, there are only 15 long term psychiatric beds in Broward County dedicated to adolescents, and none dedicated to children. In addition to the evident need to fill the gap which exists in the continuum of care available to emotionally disturbed children and adolescents in Broward County, the record also contains other persuasive proof of the reasonableness of FRTC's proposal. This proof, offered through Dr. Ronald Luke, an expert in health planning whose opinions are credited, demonstrated the need for and the reasonableness of FRTC's proposed 60-bed facility. Dr. Luke used two persuasive methodologies which tested the reasonableness of FRTC's 60-bed proposal. The first was a ratio of beds per population methodology similar to the rule methodology the Department uses for short-term psychiatric beds. Under this methodology, approval of FRTC's proposal would result in 25.47 beds per 100,000 population under 18 in District X. This ratio was tested for reasonableness with other available data. Relevant national data demonstrates an average daily census of 16,000 patients in similar beds. This calculates into 24.01 beds per 100,000 at a 90 percent occupancy rate and 25.93 beds per 100,000 at an 85 percent occupancy rate. Additionally, Georgia has a category of beds similar to IRTP beds. The Georgia utilization data demonstrates a pertinent ratio of 27.05 beds per 100,000 population. The second methodology used by Dr. Luke to test the reasonableness of FRTC's proposal, was to assess national utilization data for "overnight care in conjunction with an intensive treatment program." The national census rate in such facility per 100,000 population for persons under 18 was 21.58. Multiplying such rate by the district population under 18, derives an average daily census of 52. Assuming an optimal occupancy rate of 85 percent, which is reasonable, this demonstrates a gross need for 61 IRTP beds in District X. Dr. Luke's conclusions not only demonstrate the reasonableness of FRTC's proposal, but corroborate the need for such beds within the district. This proof, together with an analysis of existing or similar services, existing waiting lists for beds at similar facilities, and the placement by the Department of 28 children from Broward County outside the county in 1986 for long-term residential treatment, demonstrates the need for, and reasonableness of, FRTC's proposal. Quality of care The parties have stipulated that Charter and its hospitals provide quality short and long term psychiatric care. All of Charter's psychiatric hospitals are JCAH accredited, and Charter will seek JCAH accreditation and CHAMPUS approval for the proposed facility. Based on Charter's provision of quality psychiatric care, its experience in providing intensive residential treatment, and the programs proposed for the Broward County facility, it is found that quality intensive residential treatment will be provided at the FRTC facility. The availability of resources, including health manpower, management personnel, and funds for capital and operating expenditures, for project accomplishment and operation. The parties have stipulated that FRTC has available resources, including management personnel and funds for capital and operating expenditures, for project accomplishment and operation. The proof further demonstrates that FRTC will be able to recruit any other administrative, clinical or other personnel needed for its facility. 1/ Accessibility to all residents FRTC projects the following utilization by class of pay: Insurance 66.5 percent, private pay 25 percent, indigent 1.5 percent, and bad debt 7 percent. While this is an insignificant indigent load, FRTC has committed to accept state-funded patients at current state rates. FRTC's projected utilization by class of pay is reasonable. The evident purpose of FRTC's application is to permit its licensure as a hospital under Section 395.002, Florida Statutes, and thereby permit it to be called a "hospital." If a residential treatment facility is licensed as a hospital it has a significant advantage over unlicensed facilities in receiving reimbursement from third party payors. Therefore, accessibility will be increased for those children and adolescents in need of such care whose families have insurance coverage since it is more likely that coverage will be afforded at an IRTP licensed as a "hospital" than otherwise. Design considerations The architectural design for the FRTC facility was adopted from a prototype short-term psychiatric hospital design which Charter has constructed in approximately 50 locations. This design contains the three essential components for psychiatric facilities: administration, support and nursing areas. The floor plan allows easy flow of circulation, and also allows for appropriate nursing control through visual access to activities on the floor. This design is appropriate for the purposes it will serve, and will promote quality residential care. As initially proposed, the facility had a gross square footage of 31,097 square feet. At hearing, an updated floor plan was presented that increased the gross square footage by 900 square feet to 32,045, an insignificant change. In the updated floor plan the recreational component was increased from a multipurpose room to a half-court gymnasium, an additional classroom was added, and the nursing unit was reduced in size to create an assessment unit. The updated floor plan is an enhancement of FRTC's initial proposal, and is a better design for the provision of long-term residential care to children and adolescents than the initial design. While either design is appropriate, acceptance of FRTC's updated floor plan is appropriate where, as here, the changes are not substantial. Financial feasibility As previously noted, the parties have stipulated that FRTC has the available funds for capital and operating expenses, and that the project is financially feasible in the immediate term. At issue is the long-term financial feasibility of the project. FRTC presented two pro forma calculations to demonstrate the financial feasibility of the project. The first pro forma was based on the application initially reviewed by the Department. The second was based on the proposal presented at hearing that included the changes in staffing pattern and construction previously discussed. Both pro formas were, however, based on the assumption than the 60-bed facility would achieve 50 percent occupancy in the first year of operation and 60 percent occupancy in the second year of operation, that the average length of stay would be 365 days, and that the daily patient charge in the first year of operation would be $300 and in the second year of operation would be $321. These are reasonable assumptions, and the proposed charges are reasonable. The projected charges are comparable to charges at other IRTP's in Florida, and are substantially less than those of acute psychiatric hospitals. For example, current daily charges at Charter Hospital of Miami are $481, and FPC anticipates that its average daily charge will be $500. FRTC projects its utilization by class of pay for its first year of operation to be as follows: Insurance (commercial insurance and CHAMPUS) 65.5 percent, private pay 25 percent, indigent 1.5 percent, and bad debt 8 percent. The projection by class of pay for the second year of operation changes slightly based on the assumption that, through experience, the bad debt allowance should decrease. Consequently, for its second year of operation FRTC projects its utilization by class of pay to be as follows: Insurance (commercial insurance and CHAMPUS) 66.5 percent, private pay 25 percent, indigent 1.5 percent, and bad debt 7 percent. These projections of utilization are reasonable. FRTC's pro forma for the application initially reviewed by the Department demonstrates an estimated net income for the first year of operation of $97,000, and for the second year of operation $229,000. The updated pro forma to accommodate the changes in staffing level and construction, demonstrates a $102,000 loss in the first year of operation and a net income in the second year of operation of $244,000. The assumptions upon which FRTC predicated its pro formas were reasonable. Accordingly, the proof demonstrates that the proposed project will be financially feasible in the long-term. Costs and methods of construction The estimated project cost of the FRTC facility, as initially reviewed by the Department, was $4,389,533. The estimated cost of the project, as modified at hearing, was $4,728,000. This increase was nominally attributable to the change in architectural design of the facility which increased the cost of professional services by approximately $7,500 and construction costs by $139,322. Of more significance to the increased cost of the project was the increase in land acquisition costs which raised, because of appreciation factors, from $750,000 to $1,000,000. The parties stipulated to the reasonableness of the majority of the development costs and most of the other items were not actively contested. Petitioners did, however, dispute the reasonableness of FRTC's cost estimate for land acquisition and construction supervision. The proof supports, however the reasonableness of FRTC's estimates. FRTC has committed to construct its facility south of State Road 84 or east of Interstate 95 in Broward County, but has not, as yet, secured a site. It has, however, allocated $1,000,000 for land acquisition, $200,281 for site preparation exclusive of landscaping, and $126,000 for construction contingencies. The parties have stipulated to the reasonableness of the contingency fund, which is designed as a safety factor to cover unknown conditions such as unusually high utility fees and unusual site conditions. Totalling the aforementioned sums, which may be reasonably attributable to land acquisition costs, yields a figure of $1,326,281. Since a minimum of 6 acres is needed for project accomplishment, FRTC's estimate of project costs contemplates a potential cost of $221,047 per acre. In light of the parties' stipulation, and the proof regarding land costs in the area, FRTC's estimate for land acquisition costs is a reasonable planning figure for this project. FRTC budgeted in its estimate of project costs $6,000 for the line item denoted as "construction supervision (Scheduling)." Petitioners contend that construction supervision will far exceed this figure, and accordingly doubt the reliability of FRTC's estimate of project costs. Petitioners' contention is not persuasive. The line item for "Construction supervision (Scheduling)" was simply a fee paid to a consultant to schedule Charter's projects. Actual on site supervision will be provided by the construction contractor selected, Charter's architect and Charter's in-house construction supervision component. These costs are all subsumed in FRTC's estimate of project cost. FRTC's costs and methods of proposed construction, including the costs and methods of energy efficiency and conservation, are reasonable for the facility initially reviewed by the Department and the facility as modified at hearing. The petitioners FPC, a Florida partnership, received a certificate of need on May 9, 1986, to construct a 100-bed short term psychiatric and substance abuse hospital in Broward County. At the time of hearing, the FPC facility was under construction, with an anticipated opening in May 1988. Under the terms of its certificate of need, the FPC facility will consist of 80 short-term psychiatric beds (40 geriatric, 25 adult, and 15 adolescent) and 20 short-term substance abuse beds. Whether any of the substance abuse beds will be dedicated to adolescent care is, at best, speculative. The principals of FPC have opined at various times, depending on the interest they sought to advance, that 0, 5, or 20 of such beds would be dedicated to adolescent care. Their testimony is not, therefore, credible, and I conclude that FPC has failed to demonstrate than any of its substance abuse beds will be dedicated to adolescent care and that none of its treatment programs will include children. As a short term psychiatric hospital, FPC is licensed to provide acute inpatient psychiatric care for a period not exceeding 3 months and an average length of stay of 30 days or less for adults and a stay of 60 days or less for children and adolescents under 18 years. Rule 10-5.011(1)(o), Florida Administrative Code. While its treatment modalities and programs may be similar to those which may be employed by FRTC, FPC does not provide long-term residential treatment for children and adolescents and its services are not similar to those being proposed by FRTC. Notably, FPC conceded that if the patients admitted by FRTC require treatment lasting from 6 months to 2 years, there will be no overlap between the types of patients treated at the two facilities. As previously noted, the proof demonstrates that the length of stay at the FRTC facility was reasonably estimated to be 6 months to 2 years, with an average length of stay of 1 year. Under the circumstances, FPC and FRTC will not compete for the same patients. As importantly, there is no competent proof that FRTC could capture any patient that would have been referred to FPC or that any such capture, if it occurred, would have a substantial impact on FPC. Accordingly, the proof fails to demonstrate that FPC will suffer any injury in fact as a consequence of the proposed facility. SBHD is an independent taxing authority created by the legislature. Pertinent to this case, SBHD owns and operates the following facilities in Broward County: Memorial Hospital of Hollywood, 1011 North 35th Avenue, Hollywood, Florida, and Memorial Hospital Share Program, 801 S.W. Douglas Road, Pembroke Pines, Florida. Memorial Hospital of Hollywood is a general acute care hospital, with 74 beds dedicated to short-term psychiatric care. These beds are divided between three units: two closed units for acute care (42 beds) and one open unit (32 beds). There is no unit specifically dedicated to the treatment of adolescents, and Memorial does not admit any psychiatric patient under the age of 14. When admitted, adolescents are mixed with the adult population. From May 1987 through January 1988, Memorial admitted only 5-10 adolescents (ages 14-18). Their average length of stay was 12-14 days. Memorial Hospital Share Program is a 14-bed inpatient residential treatment program for individuals suffering from chemical dependency. No patient under the age of 18 is admitted to this program, which has an average length of stay of 27 days. SBHD contends that its substantial interests are affected by this proceeding because approval of FRTC's facility would result in the loss of paying psychiatric and residential treatment patients that would erode SBHD's ability to provide services to the indigent, and would, due to a shortage of nursing, recreational therapy and occupational therapists who are skilled and trained in the care of psychiatric patients, affect the quality of care at its facility and increase costs for recruiting and training staff. Due to the paucity of competent proof, SBHD's concerns are not credited, and it has failed to demonstrate that its interests are substantially affected by these proceedings. Succinctly, SBHD offered no proof concerning any staffing problems it was encountering and no proof of any disparity that might exist between wages and benefits it offers its employees and those to be offered at the FRTC facility. In sum, it undertook no study from which it could be reasonably concluded that the FRTC facility would adversely impact its staffing or otherwise increase the cost of recruiting and training staff. Likewise, SBHD undertook no study and offered no credible proof that the FRTC facility would adversely impact it financially. In fact, the FRTC facility will not treat the same patient base that is cared for by SBHD.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that FRTC's application for certificate of need, as updated, be granted, subject to the special condition set forth in conclusions of law number 12. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 7th day of September, 1988. WILLIAM J. KENDRICK 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 7th day of September, 1988.
The Issue When the hearing commenced, the parties through counsel agreed that sufficient facts would be presented to sustain a finding of violations of Counts One, Two, and Three a. and b., within the Administrative Complaint drawn by the State of Florida, Department of Health, Case No. 1999-53281. It was left for the fact finder to portray those facts consistent with the agreement. The parties presented their cases and facts have been found on the record which promote findings of violations of the aforementioned counts. In addition, as envisioned by the parties and accepted by the undersigned, determinations concerning recommended sanctions for the violations have been made on the record presented at hearing.1
Findings Of Fact Respondent's History At all times relevant, Respondent has been licensed as a physician in the State of Florida in accordance with license No. ME:0061141. His practice has been in the field of psychiatry. Respondent is Board-certified in psychiatry. Respondent has a Bachelor's of Science degree from the University of Michigan. He holds a Masters' degree in Clinical Social Work from Tulane University and a Medical Degree from Louisiana State University Medical School. Respondent did a four-year residency at Ochner Foundation Hospital in Psychiatry. Respondent has been married to Brenda Schenthal for 25 years. The Schenthal's have two sons, ages 10 and 12. The family resides in Destin, Florida. Respondent began private practice in the Fort Walton Beach, Florida, area in 1993 with Dr. Victor DeMoya. Respondent was affiliated with that practice when circumstances arose for which he stands accused. Respondent practiced in the group known as Emerald Coast Psychiatric Care, P.A., in Fort Walton Beach, Florida. Respondent does not have a prior disciplinary history with the Board of Medicine. M.B.G. M.B.G. was born July 23, 1981. Respondent first saw M.B.G. on March 21, 1996, when she was 14 years old. M.B.G. presented with issues of uncontrollable behavior, running away from home, anger, rage, drug use, suspected alcohol abuse, and sexual promiscuity. M.B.G. did not have a history of acting out until she was 13 or 14 years old. Respondent had been treating M.B.G. for approximately two months, when in May 1996, M.B.G. was involved in a physical altercation with another student in her school. The evaluation Respondent performed at that time revealed that M.B.G. was extremely angry, presenting sufficient risk that Respondent determined to involuntarily commit M.B.G. to Rivendell Hospital in Fort Walton Beach, Florida. At the time M.B.G. remained hospitalized for a couple of weeks. Following her hospitalization M.B.G. was seen by Dr. Deborah Simkan, an adolescent psychiatrist. Dr. Simkan was associated with Respondent's clinic. M.B.G. remained in treatment with Dr. Simkan until August of 1996. At the time M.B.G. was also being seen by Betty Mason, a mental health counselor affiliated with Respondent's practice. There was some concern about the progress M.B.G. was making under Dr. Simkan's care and the family determined to move M.B.G. from the Fort Walton Beach, Florida, area to live with an aunt in Charleston, South Carolina. M.B.G. had been sent to live with her aunt because M.B.G. was defiant, would not follow the rules in her household, and was difficult to control. After living with her aunt in Charleston, South Carolina, for several months it became apparent that the aunt was unable to control M.B.G. There was some suspicion that M.B.G. was using drugs while residing with her aunt. When M.B.G. returned from Charleston, South Carolina, she ran away from home as she had before. When she was found she was sent to live in a treatment facility in Trenton, Alabama. That facility was Three Springs. The reasons for her placement related to the inability to control her conduct, suspected alcohol abuse, and sexual promiscuity. M.B.G. remained at Three Springs from January 1997 until her return home in April 1998. Her stay in that facility was in accordance with a very structured environment. While at Three Springs M.B.G. revealed for the first time that she had been the victim of sexual abuse by a male YMCA counselor when she was nine years old. As a means to express her feelings, while at Three Springs, M.B.G. was encouraged to write in journals, in that she found writing about her feelings an easier means of expression then verbalizing her feelings. M.B.G. could share or refuse to share the things that she had written in the journals. Upon her release from Three Springs M.B.G. asked that Respondent resume her care. It was anticipated that Respondent would treat M.B.G. for the sexual abuse that had occurred earlier in her life and as a means to transition from the very structured environment at Three Springs into greater freedom she would have living at home. In April 1998, when Respondent again undertook M.B.G.'s care, his response to his duties was initially appropriate. However, upon reflection Respondent questions the decision to undertake the care following his former decision to place M.B.G. in Rivendell Hospital under the Baker Act. In April, M.B.G. was being seen by Respondent in his practice twice a week for one hour each visit. A couple of months later the schedule changed from two one-hour sessions per week to one two-hour session per week. Around August or September 1998, Respondent began to see M.B.G. three or four times a week in his office. By January of 1999, Respondent was seeing M.B.G. almost on a daily basis, not always in his office. Some of the increases in contacts between M.B.G. and the Respondent were associated with group therapy sessions involving M.B.G. and other sexual abuse patients under Respondent's care. One of the persons in the group was considerably older than M.B.G. It was not shown that the inclusion of the older patient in the therapy group was designed to advance some inappropriate purpose in the relationship between Respondent and M.B.G. Nonetheless, Respondent now questions the appropriateness of placing M.B.G. in the group with such divergence in ages among the participants. Upon her return from Three Springs M.B.G. became pregnant as was manifest in May 1998. She informed Respondent of her pregnancy. Reluctant to tell her parents about her condition, M.B.G. expressed the belief that an abortion was a better choice in responding to her pregnancy. Respondent left it to M.B.G. to inform her parents or not concerning the pregnancy. Respondent arranged for M.B.G. to talk to a patient who had gone through a somewhat similar experience. Ultimately M.B.G. told her mother of the pregnancy and the desire to terminate her pregnancy. Her mother was supportive of that choice and arranged for the abortion procedure. Respondent offered to go with M.B.G. and her mother M.G. when the abortion was performed. Respondent now concedes the error in the choice to offer to accompany and the accompaniment of M.B.G. and her mother to the place where the abortion was performed. This was not an appropriate response for a care-giver. Upon her return from Three Springs M.B.G. had a better relationship with her family than before. But the cordiality did not last. Over time their relationship became strained. M.B.G. was especially irritated with her mother. As before, M.B.G. maintained journals upon her return from Three Springs, portions of which she shared with Respondent. M.B.G. considered the journals to be private. Her mother was aware of the issue of privacy. Without permission M.G. read her daughter's journals. Being aware that the mother had read the journals, Respondent brought M.B.G. a safe to help maintain the journals in privacy. This purchase constituted involvement with the patient M.B.G. beyond the provision of appropriate care and into the area of problem solving in which Respondent should not have been involved. Respondent has come to understand that the purchase of the "lock-box" was not an appropriate decision. Another indication that Respondent was deviating from the normal physician-patient expectations in treating M.B.G. occurred in September 1998, in a meeting between M.B.G. and her parents. Rather than maintain his professional objectivity, Respondent sided with the patient M.B.G. in a setting in which the parents were attempting to impose rules and restrictions on her conduct. In retrospect Respondent feels that he should have handled that appointment differently, realizing his conduct indicated that something was going on within him that was not desirable, as evidenced by his starting to side with the patient. In November 1998, in response to one of the therapy sessions Respondent was engaged in with M.B.G., Respondent provided the patient with a can of Spaghettios and a poster board that he sent home with her mother. With these items he wrote a note that indicated that the Spaghettios were a reward for her efforts and he signed the note "your protector" and the name "Steve" in informal reference. As Respondent acknowledges, this was "an indication there was certainly more going on with myself," referring to feelings he was developing for the patient that were not proper conduct for a physician. M.B.G. and her family took a Christmas holiday in 1998. M.B.G. did not enjoy the trip. In explaining the lack of enjoyment, M.B.G. indicated that she did not enjoy spending time with her family on the vacation. Upon the return home M.B.G. went to stay with a friend from school. The friend with whom M.B.G. was staying upon the return from the vacation was being visited by some students from Florida State University. It was decided that M.B.G.'s friend, M.B.G., and those students would go to M.B.G.'s house to play pool. The next morning, M.B.G.'s mother found evidence that beer or other forms of alcohol had been consumed in the basement where the pool table was located. D.G., M.B.G.'s father also saw this evidence. M.G. confronted M.B.G. with the evidence. M.B.G.'s response was to leave her home and return to her friend's home. Later M.B.G. called her home and left a message that she was going to spend the night with her friend. Beyond that point Respondent became aware that M.B.G. and her mother had a disagreement about what had happened in the basement at their home. M.B.G. denied being involved in drinking. Respondent became involved in what he considered to be a stand- off between M.B.G. and her mother concerning terms acceptable for M.B.G.'s return home from her friend's house. As Respondent described it, he was allowing himself to get stuck in between M.B.G. and her mother on this subject. During the time that M.B.G. lived away from her home with the friend, Respondent spoke to M.G. about a contact which M.G. had with Three Springs, in which it was stated that M.B.G. might be returned to that facility or that M.B.G. might possibly be emancipated. Respondent spoke to Dr. Ellen Gandle, a forensic child/adolescent/adult psychiatrist, expressing his feelings of responsibility to help M.B.G. other than in the role of psychiatrist. Dr. Gandle strongly suggested Respondent not abandon his role as psychotherapist in favor of that of guardian for M.B.G. The possible guardianship was another subject that had been discussed with M.G. Respondent also tried to contact Dr. Charles Billings who had been the Respondent's residency director at Ochner to discuss this situation concerning M.B.G. In conversation, Dr. Victor F. DeMoya, Respondent's partner in the practice, advised Respondent that Dr. DeMoya considered it to be a conflict in roles for Respondent to be a therapist to M.B.G. and her guardian and that Respondent should seek the "feedback" of other colleagues about that prospect. Given the schism that existed between M.B.G. and her mother, the mother expressed a reluctance to provide continuing financial support to her daughter, the mother wanted the daughter to return the car the daughter was allowed to drive, and the mother wanted the house keys and credit cards returned. These views were made known to Respondent. Respondent went with a member of M.B.G.'s therapy group to M.B.G.'s home to remove her belongings. This retrieval of the patient's belongings was a boundary violation of conduct expected of a physician. Beyond that point Respondent continued to pursue a course of conduct involving boundary violations in his relationship with M.B.G. While M.B.G. was living with her friend from December 1998 until February 12, 1999, Respondent saw her frequently outside the treatment setting. In these instances Respondent discussed with M.B.G. her living circumstance. Respondent was involved with paying rent to the family of the friend with whom M.B.G. was living. Respondent was involved with shortening M.B.G.'s school day as a means to assist her in getting a job. Respondent helped M.B.G. to fill-out applications for college. Although Respondent had the expectation that M.B.G. would eventually repay the money expended, Respondent and his wife purchased an automobile and gave it to M.B.G. Respondent opened a joint checking account in which M.B.G. had access to monies that had been placed there by Respondent. Respondent provided M.B.G. a pager which was used by Respondent in contacting M.B.G. at her friend's residence after curfew hours that had been imposed by the friend's parents. Sometime around the latter half of January 1999, Respondent became convinced that he was falling in love with M.B.G. He gave expression to these feelings both verbally and in cards that he sent to M.B.G. In addition, Respondent had sexual fantasies about M.B.G. Respondent went so far as to discuss with M.B.G. the possibility of marrying her and the consequences of that choice. Eventually, Respondent made his wife aware of his feelings toward M.B.G. On February 11, 1999, while seated in the car Respondent had purchased for M.B.G., they kissed briefly. On February 12, 1999, M.B.G. and the friend in whose house M.B.G. was living, had an argument and M.B.G. left the home. After leaving she called Respondent early on February 13, 1999. She explained to Respondent that she had left the friend's home and was planning to drive to Tuscaloosa, Alabama. In response Respondent offered to meet M.B.G. They met at a parking lot at a Walgreens store. While seated in the car they talked for a while and kissed. Respondent invited M.B.G. to stay at his residence. She declined. Respondent then offered to get her a hotel room. On February 13, 1999, Respondent paid for a room in a local motel for M.B.G. to use. Respondent carried her belongings into the room. They sat on the bed in the room and talked, kissed, and hugged. In the course of the hugging Respondent placed his hand inside the band of M.B.G.'s sweat pants that she was wearing. Respondent touched M.B.G.'s breast on the outside of her clothing. Respondent then left the lodging and returned home. When at home he explained to his wife what had transpired with M.B.G. Following the encounter on February 13, 1999, in the motel, Respondent discussed the situation involving M.B.G. with his partner in the clinic. His partner told Respondent that Respondent needed help. Respondent contacted Dr. Henry Dohn, an adult psychiatrist practicing in Pensacola, Florida. This visit took place on February 14, 1999. They discussed the situation with M.B.G. An arrangement was made for a return visit which occurred on February 19, 1999. Respondent reports that Dr. Dohn told Respondent that the Respondent was not thinking clearly and needed to stop practicing and to attend to whatever issues needed attention in association with the boundary violation pertaining to M.B.G. Respondent was told by Dr. Dohn that if he did not report himself, Dr. Dohn would make a report concerning the conduct. In turn Respondent called a Dr. Dwyer, the on-call doctor at the Physician's Resource Network. Consistent with the discussion held between Respondent and Dr. Dohn, Respondent determined to admit himself for treatment at the Menninger Clinic in Topeka, Kansas. Respondent was admitted to the clinic on February 22, 1999. He had told his partner Dr. DeMoya that he was going to the clinic. Respondent admitted himself to the Menninger Clinic on a voluntary basis. While under treatment at Menninger Clinic Respondent was cared for by Dr. Richard Irons. Respondent also consulted with Dr. Glenn Gabbard, who specializes in boundary violations. Respondent was treated at the Menninger Clinic from February 22, 1999 through February 24, 1999, on an in-patient basis. He continued his treatment on an out-patient basis from February 24, 1999 until March 19, 1999. Respondent was released from the Menninger Clinic on March 19, 1999, and returned to Florida. Without justification and contrary to appropriate conduct for a physician, especially when recognizing his past indiscretions with M.B.G., Respondent made an arrangement to meet M.B.G. in person. This was contrary to any of the advise he had been given either medical or legal. While it had been suggested that Respondent offer assistance in placing M.B.G. in therapy with another care-giver, it was not contemplated that the arrangements would be made in person. Moreover, Respondent had a more expansive agenda in mind when meeting M.B.G., beyond acknowledging his responsibility for what had transpired between them, the offer to assist in finding a therapist and the possibility of paying for the therapy. Broadly stated, Respondent believed at that point-in-time that he could "fix things between them." Respondent was unaware that M.B.G. had contacted the authorities after their encounter in the motel room and complained about his conduct. She agreed to assist the authorities in investigating Respondent, to include taping telephone conversations between M.B.G. and Respondent while he was in Topeka, Kansas, undergoing treatment and upon his return. As well, M.B.G. was wearing a transmitter when she met Respondent in a park in Fort Walton Beach, Florida, on March 22, 1999, that would allow the authorities to record the meeting. The meeting was also video-taped. When the meeting concluded Respondent was arrested by Okaloosa County, Florida, Sheriff's deputies upon charges of battery, attempted sexual misconduct by a psychotherapist and interference with child custody. As a consequence, Respondent was charged in State of Florida vs. Stephen Schenthal, in the Circuit Court of Okaloosa County, Florida, Case No. 99-497-CFA. The case was disposed of by entry of a plea of nolo contendere to Count One: attempted interference in custody, Count Two: attempted sexual misconduct by a psychotherapist. In response an order was entered by the Court withholding the adjudication of guilt and placing defendant on probation on September 2, 1999. Respondent was placed on probation for a period of two years under terms set forth in the court order. These criminal offenses relate to the practice of medicine or the ability to practice medicine. In his testimony Respondent acknowledged that he committed boundary violations with M.B.G. that are depicted in the fact finding. Whether Respondent recognized the damage he was causing while he was engaged in the misconduct, he does not deny that he violated the fiduciary relationship with his patient by betraying M.B.G.'s trust and participating in the re- traumaterzation of her past. No independent evidence from a person treating the patient was presented concerning M.B.G.'s mental health following Respondent's transgressions. But Respondent recognizes the potential for significant damage to his patient by making it hard for M.B.G. to trust other physicians, therapists, authority figures, or to trust relationships in general and the possible re-enforcement of the trauma that had occurred in her childhood. Dr. Peter A. Szmurlo, a psychiatrist who practices in Florida, was called upon to review the circumstances concerning Respondent's relationship with M.B.G. Dr. Szmurlo has not had the opportunity to examine M.B.G. However, in a report dated November 1, 2000, concerning Respondent's actions, Dr. Szmurlo stated, "I believe that the patient's relationship with Dr. Schenthal was nothing but destructive and may preclude her ability to ever be able to develop a trusting relationship with another male and/or with another psychotherapist." In his deposition Dr. Szmurlo expressed the opinion that the issue of potential harm to M.B.G. was clear and that the potential harm was in association with "further undermining of the patient's sense of safety and, therefore enhancing or recreating the original trauma (assuming it really occurred), and that's the sexual trauma which occurred in early years." Dr. Joel Ziegler Klass, practices psychiatry in Florida. Dr. Klass reviewed information concerning Respondent's relationship with M.B.G. Dr. Klass did not personally assess M.B.G., however, within his knowledge of the facts concerning the relationship between Respondent and M.B.G. and the patient's prior history; Dr. Klass did not think a lot of damage had been done by Respondent to M.B.G. He did express the opinion that M.B.G. lost out on valuable time to get help for her mental health based upon Respondent's indiscretion. As of November 27, 2000, when M.B.G. gave her deposition, she was attending the University of Alabama in Tuscaloosa, Alabama. She explained that she had been seen by a mental health care provider, Dr. Carol Ware, a psychologist in Tuscaloosa, Alabama. The purpose for seeing Dr. Ware was basically pertaining to "things that had happened with Dr. Schenthal." M.B.G. last saw Dr. Ware in July or August 2000. M.B.G. expressed an interest in seeing a psychiatrist and indicated that she had called three different doctors. She wishes to see a female psychiatrist and she understands that only one or two female psychiatrists were practicing in Tuscaloosa when she inquired. She provided information to facilitate being seen by one of those psychiatrists but has not heard back from either practitioner concerning their willingness to treat M.B.G. In her deposition M.B.G. expressed the feeling of depression "just ups and downs and it comes as fast as it goes and it’s getting a lot worse and I need somebody to help me with it." Dr. Szmurlo expressed the opinion, within a reasonable degree of medical certainty, that Respondent used information gathered from the physician/patient relationship during the therapeutic sessions to establish trust and exercise influence over M.B.G. thereby engaging in a course of conduct for purposes of engaging a patient in a sexual relationship. That opinion is accepted. Dr. Szmurlo also expressed the opinion, within a reasonable degree of medical certainty, that Respondent in his treatment of M.B.G. practiced medicine with a level of care, skill, and treatment, which would not be recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. That opinion is accepted. Respondent: Diagnosis, Care, and Practice Opportunities Respondent returned to the Menninger Clinic on March 29, 1999, and was seen on an in-patient basis until May 14, 1999. Dr. Richard Irons was Respondent's principal treating physician at the Menninger Clinic. Upon his release from the Menninger Clinic, Respondent has been routinely treated by Dr. Roberta Schaffner, who practices psychiatry in Pensacola, Florida. Her treatment began July 9, 1999, and was continuing upon the hearing dates. Her treatment involves psychotherapy and the use of medications. As Dr. Schaffner explained in correspondence to counsel for Respondent, Dr. Schaffner's treatment does not involve the role of making specific recommendations about the timing and details of Respondent's possible return to practice. The treatment provided by Dr. Schaffner was in agreement with the treatment plan from the Menninger Clinic and was discussed with Dr. Irons and Dr. Gabbard who had cared for Respondent at the Menninger Clinic. Dr. Schaffner does not oppose the recommendations of Dr. Barbara Stein, a psychiatrist who has evaluated Respondent concerning his fitness to return to practice and under what circumstances. With this knowledge, Dr. Schaffner has indicated that were she persuaded that the suggestions by Dr. Stein for restrictions on Respondent's possible return to practice were ideas that were dangerous or inappropriate, Dr. Schaffner would be active in expressing her opposition, recognizing Respondent's difficulties. This is taken to mean recognizing Respondent's underlying mental health which needs attention. As Dr. Klass explained in his testimony, Respondent's present physician Dr. Schaffner would not offer her specific observations concerning Respondent in the interest of maintaining the physician/patient relationship. Using the diagnostic criteria in DSM-IV, Mental Disorders, Dr. Irons identified Respondent's condition as follows: Axis I: 296.22 Major depressive episode, single, in full remission V. 62.2 Occupational problem associated with professional sexual misconduct Axis II: 301.9 Personality disorder NOS, a mixed personality disorder with narcissistic, histrionic, compulsive and dependent features. Dr. Irons expressed this diagnosis in correspondence dated March 24, 2000, directed to Dr. Raymond M. Pomm, Medical Director for the Physician's Resource Network. In addition to the prior treatment described, Dr. Irons has seen Respondent for internal review of Respondent's progress and rehabilitation. On November 29 and 30, and December 1, 1999, Dr. Irons noted that: The patient continued to show progress and understanding in appreciating boundary- related issues, as well as problems of potential vulnerability associated with professional re-entry. The patient shows incremental improvement in understanding dynamics of boundary violations and appears to have gained some insight into the nature of his own transgressions. I concur with opinions presented by Dr. Schaffner, as well as Dr. Gabbard that ongoing and continuing work should be strongly encouraged. Collectively, Dr. Gabbard, Dr. Schaffner, and myself believe that this individual has the potential to practice psychiatry but only with the use of a carefully structured and monitored professional re-entry program. view: We would support professional re-entry into a psychiatric practice that involves males and females if the site provided for direct supervision with regular reports to appropriate regulatory authorities in Florida. In the correspondence Dr. Irons went on to express his It is my professional opinion with a reasonable degree of medical certainty that Steven Schenthal has made sufficient progress to be able to return to the practice of psychiatry with reasonable skill and safety on the following conditions: The patient will return to practice serving an all-male population. The patient will not serve females professionally under any circumstances. Dr. Schenthal will not engage in marital therapy or couples therapy or work with groups involving males and females. Dr. Schenthal will engage in a program that will involve monitoring of his practice through a sexual boundary violation contract with the Physicians Recovery Network. The patient will enact practice modifications which include appointments only during office hours with support staff in attendance, limitation of office hours to 8 a.m. to 5 p.m., office policies and office practice to be monitored by a psychiatrist agreeable to Dr. Schenthal and the Physician Resource Network, ongoing individual psychotherapy with Roberta Schafner, [sic] M.D., twice weekly at this time and a frequency agreeable to Dr. Schafner [sic] and other concerns [sic] parties. The patient will practice in an office which includes other therapists if not other physicians, and will arrange for clinical supervision with the supervisor having regular contact with Roberta Schafner [sic]. Dr. Barbara N. Stein, is Board-certified in psychiatry and practices in Florida. She was requested by Respondent to provide a second opinion on what parameters would allow Respondent to practice medicine with reasonable skill and with safety to patients. Reportedly, this request was made by Respondent who was dissatisfied with Dr. Irons' recommendations concerning the circumstances under which Respondent might return to practice. Based upon a review of the history of Respondent and the treatment provided to M.B.G. and an interview conducted on August 22, 2000, Dr. Stein concluded that Respondent suffers from Major Depressive Disorder, Single Episode, without psychotic features, Mild DSM-IV 296.21; Dysthymic Disorder, DSM- IV 300.4; and that there is evidence that Respondent suffers from personality disorder, not otherwise specified with narcissistic, histrionic, and anti-social personality traits, DSM-IV 301.9. In her report Dr. Stein went on to express her opinion on how Respondent can practice medicine with reasonable skill and safety to patients and stated that within her opinion with reasonable medical certainty Respondent can practice safely as long as certain restrictions were in place to include: Dr. Schenthal continues at least weekly (and preferably twice a week) therapy as recommended with Dr. Schaffner. Dr. Schenthal continues in weekly PRN Caduceus group. Dr. Schenthal continues to have regular, indirect physician monitoring of his cases directed by the Board. Dr. Schenthal works only in an institutional or group practice setting and does not treat (with psychotherapy) any female patients under 30 for at least two years or until which time he is deemed safe to do so. Dr. Schenthal may do medication management with females under 30 if and only if he has a licensed female health care worker in the room at all times and he does not have any call responsibilities that would cause him to treat these patients after hours without a chaperone. He should not ever treat female adolescents again. Dr. Schenthal takes a series of professional boundary/risk management courses on an annual basis. Patient survey and physician survey forms are employed quarterly and results are satisfactory. Dr. Schenthal has appointments only during regular office hours. Dr. Schenthal continues taking his antidepressant medication until his depressive symptoms have remitted for a minimum of six months and/or Dr. Schaffner recommends discontinuation. Dr. Schenthal and his wife participate in marital therapy if recommended by Dr. Schaffner. Dr. Schenthal is fully compliant with the above and with his long-term PRN contract. With the above recommendations for continued rehabilitation, supervision and monitoring in place, it is my medical opinion that Dr. Schenthal can begin his re-entry into professional practice with the reasonable skills and safety to patients. Dr. Raymond M. Pomm is a psychiatrist. He is the Medical Director of the Physician's Resource Network. Dr. Pomm was aware of Dr. Stein's findings concerning Respondent when Dr. Pomm prepared his own report on October 27, 2000. Based upon Dr. Stein's evaluation, Dr. Pomm's knowledge of the case and with the recognition that restrictions on Respondent's return to practice would be monitored by the Physician's Resource Network, in part and by the Agency for Health Care Administration otherwise, Dr. Pomm described the nature of restrictions he would recommend, should Respondent be allowed to return to practice. They were as follows: Dr. Schenthal should continue at least weekly psychotherapy. This will be a requirement of his PRN contract. Dr. Schenthal should continue his weekly PRN Caduceus group. This also will be a part of his PRN contract. Dr. Schenthal should have indirect physician supervision. This supervision would entail Dr. Schenthal meeting with a physician who is Board-Certified in his specific specialty of Psychiatry on a monthly basis. Each visit will require the supervisor to review with Dr. Schenthal a randomly selected ten percent of Dr. Schenthal's charts pertaining to his treatment of female patients. Therefore, every quarter, a minimum of thirty percent of his charts should have been reviewed. The review would be looking at the appropriateness of evaluative techniques used, therapeutic and psychotropic medication management issues, as well as, countertransferential issues. Also, this review will determine the appropriateness of the ongoing treatment plan and Dr. Schenthal's follow-up with said treatment plan. Dr. Schenthal should only work in an institutional or group practice setting. Dr. Schenthal should not treat any female patient under thirty years of age with psychotherapy for at least two years, and until such time he is deemed safe to do so. Dr. Schenthal may do medication management with females under thirty years of age, if an only, if, he has a licensed female health care worker in the room at all times. Dr. Schenthal should never have any call responsibilities that would cause him to treat the restricted population after hours without a chaperone. Dr. Schenthal should never treat female adolescent patients again (any female patients under twenty-one years of age). Dr. Schenthal should receive annual CME credits in boundary violation and risk management. Patient survey forms, which will be supplied by PRN, should be distributed to his patients by his office manager for one entire week every quarter. These completed forms would then be sent to his indirect physician supervisor for review. Dr. Schenthal should only have appointments with patients during regular office hours. Dr. Schenthal should continue to see his psychiatrist on a regular basis as required by his PRN monitoring contract. Dr. Schenthal will be required to inform his office staff of the difficulties he is experiencing, the terms of his agreement with the Agency for Health Care Administration, as well as, the terms of his agreement with his PRN contract and give his staff the PRN phone number. The tenure of the PRN contract will be license-long. Dr. Klass was called upon by Respondent to offer an opinion concerning Respondent's conduct, in relation to the care Respondent provided M.B.G. After familiarizing himself with the circumstances, to include the reports of Dr. Schaffner concerning treatment provided Respondent and the forensic psychiatric examination performed by Dr. Stein, Dr. Klass arrived at his opinion concerning Respondent's status. Dr. Klass also spoke to Dr. Schaffner by telephone concerning her opinion and attitudes about Respondent. Implicit in Respondent's request was the intent that Dr. Klass speak to the issue of Respondent's future opportunities to practice and under what conditions. In arriving at his conclusions Dr. Klass performed an assessment of Respondent. Dr. Klass expressed the opinion that if Respondent were allowed to return to practice, Respondent could do so acceptably if the following restrictions were in place: 1) No treatment of a female patient younger than 21 years of age until Respondent completes his therapy, as attested to by two sources, one of whom is his treating psychiatrist and the other psychiatrist who is selected; 2) Supervision of all female cases not just young females; Respondent would have to take the charts of his female patients to a qualified Board-certified expert and go over those cases so that it can be determined whether Respondent is significantly affected by his problem in that it is not resolved; 3) Marriage counseling; 4) Participation in group therapy; 5) Medication as necessary; 6) Urine checks that Respondent would have to consent to on an unscheduled basis to determine if he is taking prescribed medication; 7) Further psychiatric/psychological testing if deemed necessary by treating therapists or the Board of Medicine; 8) Literature review on the subject of countertransferance which was in evidence in Respondent's conduct directed to M.B.G.; 9) No patients seen before 8:00 a.m. or after 6:00 p.m.; 10) Contact with Physician's Resource Network professionals who have similar problems to those experienced by Respondent; 11) Allowing assessment by a third- party through a psychological or psychiatric evaluation; Allowing communication with female consenting patients concerning limited questions about their therapy; and Maintaining a "dream journal." With these restrictions in mind, Dr. Klass believes, within a reasonable degree of medical probability, that Respondent could practice psychiatry safely. The restrictions which the physicians have recommended recognize that Respondent has yet to achieve a level of improvement in his condition that would not require close monitoring of his practice and their belief that he not be allowed to treat young female patients. These opinions are held while recognizing Respondent's improvement and willingness to continue with treatment. The opinions concerning restrictions on practice are accepted as well informed and meaningful. Dr. Madison Haire is a practicing internist and nephrologist in Fort Walton Beach, Florida. In the past, Dr. Haire referred patients to Respondent and was persuaded that Respondent provided those patients with excellent supervision, monitoring, and care, prior to the incident with forms the basis for this case. Dr. Haire was unaware of any complaints against Respondent. Dr. Patricia Harrison is a Board Certified psychiatrist who is practicing in the Fort Walton Beach area and has had the opportunity to observe Respondent in the performance of his duties. Dr. Harrison has observed that Respondent exercised professionalism and good judgment in rendering good care and treatment to his patients, aside from the present case. Other physicians have offered favorable opinions concerning Respondent's practice as evidenced in Respondent's Exhibit No. 8.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered which imposes the following penalties: Count One: Imposition of a $5,000.00 administrative fine; Count Two: A suspension of one year from the date upon which the final order is entered; Count Three: Placement of Respondent on two years probation following the service of his suspension, subject to such conditions as the Board may specify and restriction of Respondent's practice consistent with those recommendations that have been made by the treatment specialists, as deemed appropriate. DONE AND ENTERED this 15th day of March, 2001, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of March, 2001.
The Issue The issue in this case is whether the allegations of the Administrative Complaint are correct and, if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency charged by statute with regulating the practice of osteopathic medicine in the State of Florida pursuant to Section 20.30, Florida Statutes, and Chapters 455 and 459, Florida Statutes. The Respondent is and at all times material to this case was a licensed physician in the State of Florida, license #OS 0004352, last known address identified as 1232 S.W. 8th Place, Cape Coral, Florida 33991. From 1985 until 1992, the Respondent had a private general medical practice in Fort Myers. In 1991, the Respondent began to exhibit signs of emotional instability. In April 1991, the Department of Professional Regulation (DPR) received a report that the Respondent was attempting to locate injectible Demerol allegedly for his own use. This information was forwarded to the Physician's Recovery Network (PRN), but remained unverified. The PRN is a program operated by the health care professions to assist practitioners impaired by mental illness, physical or mental disability or chemical dependence. Demerol is a Schedule II Controlled Substance pursuant to Chapter 893, Florida Statutes. On July 8, 1991, the DPR again received a report that the Respondent was writing inappropriate prescriptions for patients and obtaining the medication for personal use. This information was again forwarded to the Physician's Recovery Network (PRN), but remained unverified. The PRN contacted the Respondent about the allegation. The Respondent denied the report. In 1992, the Respondent began to exhibit profuse sweating, involuntary muscle jerks, and inattentiveness to his work. Some patients expressed concern to office staff about the Respondent's condition. In 1992, a DPR investigator visited pharmacies in the Fort Myers area. She learned that the Respondent had been contacting area pharmacies in an attempt to locate injectible Demerol. She further learned that the Respondent would arrive at a pharmacy with a Demerol prescription made out to a patient and which he would obtain supposedly on the patient's behalf. She collected a number of such prescriptions which had been filled by pharmacies. Many of the prescriptions were made out for patients at Meadowbrook Manor, a nursing home at which the Respondent had patients. A review of the patient records indicated that none of the patients had been prescribed Demerol. On March 27, 1992, an member of his office staff contacted the Respondent by telephone and determined him to be incoherent. She went to the Respondent's house to ascertain his condition. After gaining entry to the home, she found a number of Demerol bottles in an open dresser drawer, at least one of which was empty. She also discovered syringes in the drawer. The Respondent's eye was blackened. Blood was visible about the bathroom in the house. The staff member determined that although the Respondent had fallen during the night, he was reluctant to seek medical attention. Several hours after the staff member had arrived at the Respondent's house, he was incoherent. She called for an ambulance. The Respondent was subsequently transported to the hospital. Examination of the Respondent clearly indicated that he had suffered a head injury. While in the hospital, the Respondent was examined by a board certified psychiatrist. According to the psychiatrist, the Respondent exhibited substantially impaired memory, was very guarded with his communication and, notwithstanding the injury, indicated his intent to leave the hospital quickly. He was unable to recall the current month and date. He denied prior consumption of alcohol despite lab tests to the contrary. He also denied having previously been chemically dependent, although he had been involved in the intervention of said problem in 1981. The psychiatrist diagnosed the Respondent as having residual organic brain syndrome as a result of his chemical intake. Based on the diagnosis, the psychiatrist recommended that the Respondent begin an inpatient drug rehabilitation program. The psychiatrist also referred the Respondent's impairment to the DPR. In March of 1992, the DPR alerted the PRN about the Respondent's condition. The PRN assigned a local representative to encourage the Respondent to seek treatment. On March 31, 1992, the Respondent entered a treatment program at Palmview Hospital. While in the program, he admitted to having self-injected Demerol. The Respondent was resistant to treatment while at Palmview Hospital. Although he acknowledged having previously received inpatient treatment at another facility, he alternately admitted and denied abusing Demerol. On April 10, 1992, the Respondent discharged himself from Palmview Hospital. The discharge was against the advise of the treating physician at Palmview. At the time of the discharge, PRN representatives discussed the matter with the Respondent. The Respondent stated that he was leaving the inpatient treatment program and was going to being outpatient treatment from the Palmview facility. The treating physician at Palmview told the PRN that the Respondent required three to four weeks of inpatient treatment. It was the opinion of the treating physician that the Respondent was not capable of safely providing medical care to patients at that time. Based on the Palmview information, the PRN instructed the Respondent that he must complete inpatient treatment and that he could not practice medicine until it was decided that he could do so safely. In April 13-16, 1992, the Respondent obtained a second opinion from another physician affiliated with the Addiction Treatment Program at Mount Sinai Medical Center in Miami Beach, Florida, where he was examined by a board certified addictionologist. According to the Mount Sinai addictionologist, the Respondent is addicted to Demerol and requires treatment. Based on the Mount Sinai information, the PRN instructed the Respondent not to practice and to seek immediate treatment for his addiction. On April 22, 1992, the Respondent reentered Palmview Hospital. Upon reentry, the Respondent denied using Demerol, but eventually acknowledged using the drug and being chemically dependent. It was determined during the second Palmview admission, that the Respondent was in need of approximately four months in a long term inpatient care treatment facility. On May 22, 1992, the Respondent was admitted to the Talbott-Marsh recovery program. He was diagnosed as having a personality disorder with antisocial, paranoid and narcissistic traits, and to being opiate dependent, On August 3, 1992, the Respondent left the Talbott-Marsh center without completing the program. The records and reports of the Respondent's condition were reviewed by Dr. Roger Goetz, M.D., the director of the PRN. Dr. Goetz, who also has personal knowledge of the Respondent's condition, is certified by the American Association of Addiction Medicine and has extensive experience as a medical doctor and in treating impaired physicians. Dr. Goetz asserted that the Respondent is suffering from a dangerous condition, that he is mentally ill and that he poses a threat to himself and to the public. Dr. Goetz opined that the Respondent is unable to practice medicine with reasonable skill and safety to patients and that his continued practice constitutes an immediate and serious danger to the public health, safety and welfare.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Professional Regulation, Board of Medicine, enter a Final Order determining that Benjamin D. Goldberg, D.O., has violated Section 459.015(1)(w), Florida Statutes, and revoking his license (#OS 0004352) to practice as a physician in the State of Florida. DONE and RECOMMENDED this 13th day of August, 1993, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 August, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1553 The Respondent did not file a proposed recommended order. To comply with the requirements of Section 120.59(2), Florida Statutes, the following constitute rulings on proposed findings of facts submitted by the Petitioner. The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 22, 37. Rejected, unnecessary. COPIES FURNISHED: Dorothy Faircloth, Executive Director Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Francesca Plendl, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0750 Benjamin Goldberg, D.O. 1232 South West 8th Place Cape Coral, Florida 33991
The Issue Whether or not, on or about January 13, 1977, the Respondent, while undergoing an employment physical at the request of her employer, at St. Vincent's Medical Center of Jacksonville, Florida ,was observed by the examining physician to have between 50 and 75 puncture wounds in her arms overlying her veins, which puncture wounds were consistent with those made by a hypodermic needle. Whether or not the Respondent was obtaining oral Codeine, Dilaudid and Demerol tablets, controlled substances, by prescription, and subsequently dissolving the drugs and injecting them into her veins. Whether or not, on or about January, 1977, the Respondent was counseled by a member of St. Vincent's Medical Center Community Mental Health Department, and was offered the services of the Department which offer was declined by the licensee. Further, whether or not the Respondent informed Shirley Trawick, Assistant Administrator of the Mental Health Department, that she had been using controlled drugs in her younger years, stopped using them for a while and was once again using controlled drugs, including Demerol. Whether or not, on or about February 18, 1977, the Respondent uttered a forged prescription at Soutel Pharmacy, Jacksonville, Florida for a controlled drug to wit: Demerol, and was arrested by an officer of the Jacksonville Sheriff's Office for the felony of uttering or making a forged prescription. Further, whether or not at the time of the arrest a search of the licensee's purse revealed 20 more prescription blanks contained therein. Whether or not, on or about February 10, 1977, while confined to the Duval County Jail, licensee admitted to the jail nurse, L. Harris, that she had been abusing drugs (Demerol). Whether or not, on or about January 18, 1977, the Respondent uttered a forged prescription for a narcotic to wit: Demerol at Walgreen's Regency Pharmacy, 9501 Arlington Expressway. Whether or not, on or about January 27, 1977, the Respondent uttered a forged prescription at Revco Pharmacy, 5220 Firestone Road, for a narcotic drug, to wit: Demerol. Whether or not, on or about February 4, 1977, the Respondent forged a prescription for a narcotic drug, to wit: Demerol, which was passed at Revco Pharmacy, 5220 Firestone Road, Jacksonville, Florida by an individual, Lewis William Bergman. Whether or not the above allegations, if proven, would establish that the Respondent is guilty of unprofessional conduct and in violation of 464.21(1)(b), F.S., 464.21(c), F.S., 464.21(d), F.S., 464.21(f), F.S., and 464.21(g) F.S.
Findings Of Fact The Respondent, Rebecca Lee Brunson, is a Registered Nurse who holds license no. 89605-2, held with the Florida State Board of Nursing. This case is brought for consideration upon the amended administrative complaint of the Petitioner, Florida State Board of Nursing, which is dated for mailing on May 25, 1977. This complaint arises from the sworn complaint letter of April 25, 1977, propounded by Geraldine B. Johnson, R.N., Investigation and Licensing Coordinator for the Florida State Board of Nursing. This letter of complaint can be found as Petitioner's Exhibit #2 admitted into evidence. On January 13, 1977, the Respondent was seen by Dr. C. O. Plyler for purposes of an employment physical examination. At that time the Respondent was employed by St. Vincent's Medical Center of Jacksonville, Florida. The examination conducted by Dr. Plyler revealed many wounds on the arms of the Respondent, by Dr. Plyler's estimate, 50 to 75. These wounds appeared to be puncture wounds and followed a pattern on the visible blood vessels in the area between the wrists and elbows. These wounds were of a type, believed by Dr. Plyler to have possibly been caused by a hypodermic needle. When confronted with the need to make an explanation of these wounds, the Respondent replied by saying that the wounds had been inflicted by a cat. After further inquiry by Dr. Plyler, the Respondent stated that she was injecting her veins with narcotics. The specific method of this infection was to take oral narcotics, to wit: Codeine and Demerol, and dissolve these tablets and then inject them into herself. On this same occasion Kathleen Maher, the Director of the Nursing Service, St. Vincent's Medical Center, was called in to consult with the Respondent. Mrs. Maher knew Rebecca Brunson through Brunson's employment in the nursing staff at St. Vincent's Medical Center. A discussion was entered into between Mrs. Maher and the Respondent in which the Respondent was offered the opportunity to attend the St. Vincent's Medical Center Community Mental Health Program, but declined that opportunity. This opportunity was also offered by Shirley Trawick, the Assistant Director of the St. Vincent's Medical Center Community Mental Health Program. This conversation took place on the same date as the examination by Dr. Plyler. Mrs. Trawick also offered an alternative suggestion for treatment for the problem with narcotics. That alternative was placement in the Jacksonville Drug Abuse Program. The Respondent declined Mrs. Trawick's offer for assistance in any efforts to be detoxed. Another element of the conversation between Brunson and Trawick concerned the question of addiction. The Respondent told Trawick that she had been addicted to drugs as an adolescent and was currently taking the drug Demerol. On the same day as the discovery by Dr. Plyler and the admission by the Respondent, the St. Vincent's Medical Center suspended the Respondent because they felt that she was not physically capable of continuing as a registered nurse in their service. The Respondent was ultimately terminated from her position with St. Vincent's Medical Center. On February 18, 1977, the Respondent went to Soutel Pharmacy, Jacksonville, Florida and tendered a prescription to be filled. The contents of the face of the prescription may be found in Petitioner's Exhibit #1, admitted into evidence. (This exhibit is a copy of the original document which was tendered.) She presented the prescription by inquiring if the Soutel Pharmacy had the prescription, because, "Scotties on Lem Turner could not fill the prescription." There is no Scotties on Lem Turner in Duval County, Florida. Additionally, the signature on the prescription showed the signature of Dr. Millard F. Jones. Dr. Jones, when contacted by the pharmacist, Joel Bressler, indicated that he had not signed such a prescription. The Respondent exited the Soutel Pharmacy while Joel Bressler, the pharmacist was calling Dr. Jones. Bressler then called the Jacksonville Sheriff's Office and an officer was dispatched to investigate the case. Officer Robert E. Sanders, Jacksonville Sheriff's Office, arrived at the Soutel Pharmacy and placed the Respondent under arrest for uttering a forged prescription. In the course of the arrest an envelope with a number of other prescription forms was found in the Respondent's purse. Later, in an interview setting between the Respondent and Detective John Farmer, Jacksonville Sheriff's Office, held in the Detective Bureau, the Respondent, after being advised of her rights under the Miranda Case, admitted having written the prescriptions in her purse and having, on numerous other occasions, passed or attempted to pass forged prescriptions. She particularly made mention of three cases that were under investigation by Detective Farmer, two involving Revco Pharmacy on Firestone Road, and one involving Walgreens Pharmacy in Arlington. The Respondent also indicated that she was addicted to drugs. During the course of a routine crisis intervention interview by Ms. Lynn Harris, now Mrs. Lynn Timmons, which occurred on February 18, 1977 at the Duval County Jail, the Respondent admitted abusing drugs. She specifically referred to the drug Demerol. The Respondent, at that time, denied any addiction to the drug Demerol. The substances identified as Codeine and Demerol are controlled substances as set forth in 893, F.S. Based upon the facts as shown the Respondent is guilty of unprofessional conduct within the meaning of 464.21(1)(b), F.S., by reason of her abuse of and addiction to the substances Codeine and Demerol and by reason of forgeries and uttering and attempting to utter forged prescriptions. The Respondent is also guilty of habitual intemperance or addiction to the use of controlled substances as set forth in 893, F.S., in addition to engaging in the possession of controlled substances within the meaning of the aforementioned 893, F.S., causing a violation of 464.21(1)(c)(d), F.S. The response by the licensee, Rebecca Lee Brunson, to the offer for assistance for her problem with drug abuse and addiction and her general physical condition exhibits behavior which the Nursing Board has regarded and may regard as creating an undue risk that the licensee as a nursing practitioner could cause harm to other persons in violation of 464.21(1)(f), F.S. Finally the Respondent has wilfully and repeatedly violated the provisions of 464, F.S. and the provisions of 893, F.S., thereby violating 464.21(1)(g), F.S.
Recommendation It is recommended that the Florida State Board of Nursing, revoke the license of Rebecca Lee Brunson, R.N., license no. 89605-2. DONE AND ENTERED this 28th day of July, 1977, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Julius Finegold, Esquire 1005 Blackstone Building Jacksonville, Florida 32201 William J. Sheppard, Esquire 215 Washington Street Jacksonville, Florida 32202 Geraldine B. Johnson, R.N. Investigation and Licensing Coordinator Board of Nursing 6501 Arlington Expressway, Building "B" Jacksonville, Florida 32211 Rebecca Lee Brunson, R.N. 1529 McDuff Avenue South Apartment #2 Jacksonville, Florida
