The Issue Whether Certificate of Need (CON) Application No. 10125, filed by Shands Jacksonville Medical Center, Inc. (Shands Jacksonville) to establish a new, 100-bed acute care hospital (Shands North) in Duval County, Agency for Health Care Administration (AHCA or Agency) acute care subdistrict 4-1, satisfies, on balance, the applicable statutory and rule review criteria.
Findings Of Fact The Parties The Applicant and Related Hospitals Shands Jacksonville is located in downtown Jacksonville, Duval County, AHCA Health Planning District 4, acute care subdistrict 1. Shands Jacksonville is licensed for 695 beds, including 548 acute care, 16 Level II NICU, 32 Level III NICU, 43 adult psychiatric, and 56 skilled nursing beds. Shands Jacksonville provides tertiary level services such as open heart surgery, and also operates a Level I trauma center. Shands Jacksonville is also an academic medical center, offering the third largest teaching hospital for residents in Florida, with more than 300 residents. Shands Jacksonville serves as a teaching campus for nurses, pharmacists and other health care professionals. Shands Jacksonville is a sister company of Shands Teaching Hospital and Clinic, Inc., located in Gainesville, Florida. The sole member of both companies is the University of Florida (U.F.). Shands Jacksonville was previously a subsidiary of Shands Teaching Hospital and reported to leaders of that organization. Recently, the corporate organization was changed in order to allow for market nimbleness, as Shands Jacksonville operates in a more competitive, urban environment. The change also created more local ties for Shands Jacksonville, with Jacksonville community leaders added to Shands Jacksonville's governing board. Shands Jacksonville is the primary safety net provider for all of Jacksonville and its surrounding counties. Shands Jacksonville provides far more charity and indigent care than all other hospitals in the region. Shands Jacksonville provided more than $62 million in unsponsored community benefits at cost in 2011, net of reimbursement from municipalities for indigent patients. Bad debt and charity represented 15.7 percent of Shands Jacksonville's gross revenue, which is higher than any provider or system in the district. HCA's Memorial Hospital Memorial Healthcare Group, Inc., d/b/a Memorial Hospital Jacksonville is a general acute care hospital located at 3625 University Boulevard South, Jacksonville, Duval County, AHCA Health Planning District 4. Memorial is licensed for 418 beds, including 381 acute care, 27 adult psychiatric, and 10 Level II NICU beds. AHCA AHCA is the state health planning agency and administers the CON program pursuant to the Health Facility and Services Development Act. §§ 408.031-.0455, Fla. Stat. Existing and Approved Area Hospitals In addition to Shands Jacksonville and Memorial, existing general acute care hospitals in Duval County include the following: Baptist Medical Center; Baptist Medical Center- Beaches; Baptist Medical Center-South; St. Vincent's Medical Center South; Mayo Clinic; St. Vincent's Medical Center, and St. Vincent's South. Although not located in Duval County, Orange Park Medical Center is an existing HCA-affiliated hospital located in adjacent Clay County. Baptist Medical Center-Nassau is located in adjacent Nassau County, within Subdistrict 4-1. There are two CON-approved, but not yet operational hospitals in the greater Jacksonville area; the 85-bed West Jacksonville Medical Center was approved in western Duval County, and is expected to open in late 2016. The second approved but not yet operational hospital is the 98-bed St. Vincent's Clay County Hospital located in northern Clay County, proximate to the Duval County line. That facility is currently under construction and is expected to open in 2014. The Proposal Shands Jacksonville seeks approval to establish a new 100-bed "satellite" general acute care hospital in northern Jacksonville to be known as Shands Jacksonville Medical Center North (Shands North). The proposed hospital is intended to offer basic non-tertiary acute care and obstetric (OB) hospital services. The medical staff will be comprised of Shands Jacksonville medical staff members, which includes U.F. faculty practice and community physicians engaged in private practice. Through establishment of the Shands North satellite, Shands Jacksonville hopes to improve its payor mix (and overall fiscal health), thereby enabling it to continue to serve as Jacksonville's safety net hospital. The new hospital would also improve patient access to health care for a segment of the Duval County population. Simultaneous with the licensure of the new satellite hospital, Shands Jacksonville will delicense 100 beds from its existing campus. Before filing its application with the Agency, Shands studied the market to make certain that the project was properly sized and would be successful. As summarized in the Agency's State Agency Action Report (SAAR), Shands justifies project approval based on five broad categories of need, with additional subcategories, and what the applicant calls additional important considerations, as follows: -an acute care hospital is needed in northern Jacksonville and will improve access to acute care and emergency department (ED) services; -Shands Jacksonville should receive approval to establish a northern Jacksonville satellite hospital; -Shands North will increase access to ED services, reduce time to treatment and relieve crowding at Shands Jacksonville’s ED; -creation of Shands North will add sorely needed jobs in the community; -Shands North would serve as an additional evacuation center for residents of Amelia Island and other coastal areas, and -additional important considerations, including enhancing the relationship between UF and Shands with the citizens of northeast Florida, promotion of excellence in patient care, continuation of community service and letters of support. (SAAR, pgs. 6, 7) The Proposed Site As the location for its new hospital, Shands Jacksonville purchased a site off of Interstate 95 near the Jacksonville International Airport and Port of St. Johns, and adjacent to the River City Marketplace, a major retail complex. These nearby developments are relevant to the hospital's location because employees tend to live near their place of work, and will seek hospital services there. The distances from the Shands North site to the closest hospitals are: Shands Jacksonville 10.3 miles; Baptist downtown 12.8 miles; St. Vincent's downtown 15.6 miles; and Memorial 16.6 miles. Northern Jacksonville is the only part of greater Jacksonville without an acute care hospital. There are no hospitals situate between downtown Jacksonville and Fernandina Beach. Shands North would be located in an area with an expected improvement in payor mix, fewer Medicaid patients, and more commercial and Medicare patients. A Phased Campus Concept Shands Jacksonville engaged Gresham Smith architects to examine what type of facility could be accommodated at the chosen location. Those architects initially suggested a 137-bed hospital, with room to expand to 300 acute care beds in the future. However, the plan was scaled down to 100 beds, though future expansion would remain an option. The construction phasing plan for the site contemplates a three-phase project: Phase 1 is the development of an outpatient campus; Phase 2 is a start-up hospital of approximately 100 beds; and Phase 3 is a fully developed campus with up to 300 hospital beds. Shands Jacksonville intends to proceed with Phase 1, the development of an outpatient campus, without regard to the timing or approval of the hospital CON application. Contemplated services within Phase 1 include diagnostic imaging, ambulatory surgery, an urgent care center or a freestanding emergency department, and a medical office building. As of hearing, development of a freestanding emergency department at the Shands North campus remained under active consideration. Phase 1 is intended to be completed and operational by the end of 2013. The medical office building will be approximately 60,000 square feet, and the ambulatory services center will be about 90,000 square feet. Instead of funding Phase 1 through debt or retained earnings, Shands Jacksonville is in discussions with potential third-party developers who would finance the construction and lease back the facilities to Shands Jacksonville. The-100 bed Shands North hospital is estimated to cost between $100 and $125 million. The Shands Jacksonville Board has not yet approved funding for the construction of the Shands North hospital. The recent economic downturn caused Shands Jacksonville to delay its plans for Shands North, as it waited for the economy to rebound. In the meantime, the area has received the necessary infrastructure to allow for rapid development once the economy rebounds. The Agency's Preliminary Review and Approval Jeff Gregg oversees the Florida Center for Health Information and Policy Analysis, which includes the certificate of need program administered by the Agency. Mr. Gregg was accepted as an expert in health planning, and testified at hearing regarding the Agency's review and preliminary approval of the Shands Jacksonville application. Mr. Gregg testified that the Agency's approval of the CON application would allow Shands Jacksonville to expand access, while simultaneously bolstering its function as one of the state's major safety net providers of indigent care: Q. Can you describe your understanding of the Shands project? A. I would describe this as an example of a case where a safety-net hospital is applying to add a satellite in a suburban market that they presume will provide them with a better payor mix. And in doing so it serves a two- prong purpose for them. One is to expand the access, but also to bolster their function as one of the state’s major safety-net providers of indigent care in an inner-city location by decompressing some of its functions, diverting emergency department utilization, allowing then to create more private rooms, which are now part of the building code for new hospital construction and definitely something that I think is generally regarded as a subject of consumer preference. So it is a combination of access improvement in an un-served suburban sector and an ability to improve a traditional indigent care function. Mr. Gregg also noted that the site chosen for Shands North is "close to the sole remaining sector of the suburban market that surrounds urban Jacksonville that is presently unserved." The project would improve access in an unserved suburban sector while simultaneously improving traditional indigent care functions for Shands Jacksonville, according to Mr. Gregg. In addition to the above reasons, the Agency also based its approval, in part, on the fact that Shands Jacksonville would serve as an additional evacuation center for residents of Amelia Island and other coastal areas. Mr. Gregg testified that, essentially, if an applicant submits a reasonable CON application for a new hospital, AHCA will approve it with minimal analysis and little or no critical review. This is because applications for new hospitals are rare since access to capital is tight, and the Agency does not receive applications for new hospitals that Mr. Gregg would consider frivolous. Physician Involvement Ninety percent of the patients treated at Shands Jacksonville have contact with a UF faculty physician. However, this statistic does not mean that each of those patients was referred by UF faculty physicians. In fact, currently, 86% of the admissions to the Shands downtown campus originate in the emergency department. Agency databases capture information regarding an "attending" and an "operating" physician. An attending physician is someone who is identified during the course of the stay, or even at the end of the course of the stay as the one primarily responsible for the patient's care while they are in the hospital. There is no designation for admitting physicians, just attending and operating physicians. Thus, there is no clear database which captures which physicians "refer" a patient to a given hospital. Primary care physicians generally do not attend hospital inpatients, largely because there is little physician reimbursement for hospital visits, and there is no reimbursement for the time spent travelling to and from the hospital. As a result, a growing trend in hospital care is to have patients' needs attended to by a "hospitalist." A hospitalist is a physician, usually a specialist in internal medicine, who cares for patients in the hospital but does not have a private outpatient practice. Several hospitalists work with Shands Jacksonville. Hospitalists are not part of the UF faculty practice, but rather are community physicians that specialize in treating patients while they are in the hospital. Shands Jacksonville has contracted with Cogent, a company which employs hospitalists who work as medical staff at Shands Jacksonville and see patients that are oftentimes referred from the emergency department. Thus, Cogent offers a continuum of care that works in conjunction with community physicians. Cogent is making efforts to work with area community physicians to foster referrals to Shands Jacksonville. During the second quarter of 2012, 64.4% of the patients at Shands Jacksonville were treated by UF faculty doctors. However, 7.5% of the Shands Jacksonville current admissions were treated by Cogent community physicians. Another 21% either came directly from primary physicians in the community or didn't have a UF association. As noted above, Shands Jacksonville receives a high percentage of admissions from UF-affiliated physicians. Shands North will need referrals from community physicians not currently practicing at Shands Jacksonville in order to be successful. Through Shands Jacksonville's and Cogent's ongoing efforts to foster relationships with community physicians Shands North can expect to receive some level of cooperation and referrals from community doctors within the proposed service area.2/ However, whether that level of support will be sufficient to achieve the Shands North projected utilization has not been established in this record. Statutory and Rule Review Criteria In 2008, the Florida Legislature significantly modified the application and review process for CON applications for general hospitals.3/ Specifically, the amendments to section 408.035, Florida Statutes, eliminated consideration of several CON review criteria that had previously been applicable to general hospital applications. Those criteria that no longer apply to such applications are: 408.035(1): The ability of the applicant to provide quality of care and the applicant’s record of providing quality of care. The availability of resources, including health personnel, management personnel, and funds for capital and operating expenditures, for project accomplishment and operation. (f) The immediate and long-term financial feasibility of the proposal. (h) The costs and methods of the proposed construction, including the costs and methods of energy provision and the availability of alternative, less costly, or more effective methods of construction. Following the 2008 amendments, the statutory CON review criteria that remain applicable to general hospital applications are: The need for the health care facilities and health services being proposed. The availability, quality of care, accessibility, and extent of utilization of existing health care facilities and health services in the service district of the applicant. (e) The extent to which the proposed services will enhance access to health care for residents of the service district. (g) The extent to which the proposal will foster competition that promotes quality and cost-effectiveness. (i) The applicant’s past and proposed provision of health care services to Medicaid patients and the medically indigent. Chapter 2008-29, Laws of Florida, also amended section 408.037, which specifies the required CON application content. The new section 408.037(2) is exclusively directed to applications for new general hospitals: (2) An application for a certificate of need for a general hospital must contain a detailed description of the proposed general hospital project and a statement of its purpose and the needs it will meet. The proposed project’s location, as well as its primary and secondary service areas, must be identified by zip code. Primary service area is defined as the zip codes from which the applicant projects that it will draw 75 percent of its discharges. Secondary service area is defined as the zip codes from which the applicant projects that it will draw its remaining discharges. If, subsequent to issuance of a final order approving the certificate of need, the proposed location of the general hospital changes or the primary service area materially changes, the agency shall revoke the certificate of need. However, if the agency determines that such changes are deemed to enhance access to hospital services in the service district, the agency may permit such changes to occur. A party participating in the administrative hearing regarding the issuance of the certificate of need for a general hospital has standing to participate in any subsequent proceeding regarding the revocation of the certificate of need for a hospital for which the location has changed or for which the primary service area has materially changed. In addition, the application for the certificate of need for a general hospital must include a statement of intent that, if approved by final order of the agency, the applicant shall within 120 days after issuance of the final order or, if there is an appeal of the final order, within 120 days after the issuance of the court’s mandate on appeal, furnish satisfactory proof of the applicant’s financial ability to operate. The agency shall establish documentation requirements, to be completed by each applicant, which show anticipated provider revenues and expenditures, the basis for financing the anticipated cash- flow requirements of the provider, and an applicant’s access to contingency financing. A party participating in the administrative hearing regarding the issuance of the certificate of need for a general hospital may provide written comments concerning the adequacy of the financial information provided, but such party does not have standing to participate in an administrative proceeding regarding proof of the applicant’s financial ability to operate. The agency may require a licensee to provide proof of financial ability to operate at any time if there is evidence of financial instability, including, but not limited to, unpaid expenses necessary for the basic operations of the provider. Section 408.035(1)(a): The need for the health care facilities and health services being proposed. Section 408.035(1)(b): The availability, quality of care, accessibility, and extent of utilization of existing health care facilities and health services in the service district of the applicant. The Agency does not have a need methodology for acute care hospitals or acute care beds. The former rule was repealed in 2005, following the Legislature's general deregulation of acute care bed additions in 2004. In general, existing acute care hospitals can add acute care beds without CON review after notification to the Agency. In light of the lack of a need methodology, the applicant is responsible for demonstrating need through a needs assessment methodology which must include, at a minimum, consideration of the following topics, except where they are inconsistent with the applicable statutory and rule criteria: Population demographics and dynamics; Availability, utilization and quality of like services in the district, subdistrict or both; Medical treatment trends; and Market conditions. Fla. Admin. Code R. 59C-1.008(2)(e)2.a.-d. In addition to the criteria set forth in section 408.035, Florida Statutes, Florida Administrative Code Rule 59C-1.030 identifies the criteria to be used in evaluating CON applications, including "health care access criteria": For a new general hospital as defined in section 395.002, F.S. and subparagraphs 59A-3.252(1)(a)1. and 3., F.A.C., the criteria for evaluation are those found in sections 408.035(2) and 408.037(2), F.S. Health Care Access Criteria. The need that the population served or to be served has for the health or hospice services proposed to be offered or changed, and the extent to which all residents of the district, and in particular low income persons, racial and ethnic minorities, women, handicapped persons, other underserved groups and the elderly, are likely to have access to those services. The extent to which that need will be met adequately under a proposed reduction, elimination or relocation of a service, under a proposed substantial change in admissions policies or practices, or by alternative arrangements, and the effect of the proposed change on the ability of members of medically underserved groups which have traditionally experienced difficulties in obtaining equal access to health services to obtain needed health care. The contribution of the proposed service in meeting the health needs of members of such medically underserved groups, particularly those needs identified in the applicable local health plan and State health plan as deserving of priority. In determining the extent to which a proposed service will be accessible, the following will be considered: The extent to which medically underserved individuals currently use the applicant’s services, as a proportion of the medically underserved population in the applicant’s proposed service area(s), and the extent to which medically underserved individuals are expected to use the proposed services, if approved; The performance of the applicant in meeting any applicable Federal regulations requiring uncompensated care, community service, or access by minorities and handicapped persons to programs receiving Federal financial assistance, including the existence of any civil rights access complaints against the applicant; The extent to which Medicare, Medicaid and medically indigent patients are served by the applicant; and The extent to which the applicant offers a range of means by which a person will have access to its services. In any case where it is determined that an approved project does not satisfy the criteria specified in paragraphs (a) through (d), the agency may, if it approves the application, impose the condition that the applicant must take affirmative steps to meet those criteria. In evaluating the accessibility of a proposed project, the accessibility of the current facility as a whole must be taken into consideration. If the proposed project is disapproved because it fails to meet the need and access criteria specified herein, the Department will so state in its written findings. The Service District and Subdistrict AHCA health planning District 4 consists of Baker, Nassau, Duval, Clay, St. Johns, Flagler, and Volusia Counties. For acute care beds, District 4 is further subdivided into five separate subdistricts. Acute care subdistricts are defined as "[a] group of counties, a county, or a portion of a county which forms a subdivision of a district." Fla. Admin. Code R. 59C- 2.100(1)(d). Shands Jacksonville intends to locate its new hospital within Subdistrict 4-1, which consists of Nassau County, and the northern portion of Duval County lying within ZIP codes 32202, 32206, 32208, 32209, 32218, 32219, 32220, 32226, and 32254. Fla. Admin. Code R. 59C-2.100(3)(g). There are currently two acute care hospitals located in Subdistrict 4-1; Shands Jacksonville, and Baptist Medical Center-Nassau. In CY 2010, these two facilities had a combined complement of 602 acute care beds, and operated at 64.99% and 58.75% occupancy, respectively. Projected Service Area The Shands North proposed primary service area ("PSA") consists of three residential zip codes: 32097 (Yulee); 32218 (Jacksonville); and 32226 (Jacksonville) and two zip codes that are post office boxes: 32041 and 32229. The Shands North PSA is expected to account for 75% of the admissions to the new hospital. The proposed secondary service area ("SSA") consists of three full zip codes: 32011 (Callahan); 32208 (Jacksonville); 32219 (Jacksonville); and, census tract 503.03 within zip code 32034 (Fernandina Beach -- this area is west of the Amelia River and excludes Amelia Island). The SSA is projected to produce the remaining 25% of the new hospital's admissions. Shands Jacksonville's expert in health planning testified that in identifying its service area Shands Jacksonville considered the location of roadways, travel patterns, distances from other providers and geographic features that might hinder transportation. Service Area Population Shands Jacksonville examined population statistics to determine demand for new services in the proposed location. When the application was written, Shands Jacksonville used 2011 Nielson-Claritas population estimates. This report estimated 2011 population, and predicted 2016 populations. Claritas predicted a 7.5% growth in population between 2011 and 2016 for the service area, while the rest of Duval and Nassau was only expected to grow by 5.2%. As of hearing, the Nielson-Claritas population estimates had been revised to reflect the results of the 2010 census. The new Claritas data restated 2012 population and created new 2017 estimates. In its application, Shands Jacksonville anticipated the PSA population to be 67,548 persons in 2017, the third year of the project. After the Claritas rebasing, the projections have increased to 75,189 adults, a growth rate of 11.3%. However, over the same period of time the secondary service area showed a reduction of approximately 1,000 adults (from 51,681 to 50,688) a decline of 1.9%. The portions of Duval and Nassau counties outside the Shands North PSA or SSA are not experiencing significant population growth. From 2012 to 2017 the adult population of those areas is only expected to increase by 2.2% (from 601,834 to 615,161), while the female population is actually expected to decline by 3.6% (from 173,004 to 166,811). Anticipated population growth within the Shands North PSA and SSA, in and of itself, will not have a major impact on the need for the proposed hospital. Most of the population in the Shands North PSA is concentrated in zip code 32218. The other two zip codes within the PSA are sparsely populated or closer to other facilities. Given those factors, it is unlikely that Shands North will be able to penetrate deeply into the smaller zip codes, 32097 and 32226 in order to obtain patients. The Shands North SSA also includes sparsely populated zip codes, with the exception of zip code 32208, which is very close to existing Shands Jacksonville. The residential development most proximate to the Shands North site is River City Marketplace, to the south, which is a mature development. There are large tracts of marshland to the east and north of the site, including Timucuan Preserve, which cannot be developed. With regard to the residential development east of I-95 that Shands North seeks to serve, Baptist-Nassau is more proximate to service area residents. In total, the population base within Shands North's proposed service area is relatively small, and scattered. Projected Utilization and Market Share The Shands Jacksonville application projects that in the third year of operation (2017) Shands North will capture a 45% market share of adult non-tertiary discharges in the proposed PSA, and 15% in the SSA. The application also projects that in the third year of operation Shands North will capture 45% of the OB discharges in the PSA, and 15% in the SSA. If Shands North is able to achieve its projected market shares it would represent a significant redistribution of patients from existing hospitals to the proposed new hospital, as discussed in greater detail below. Shands Jacksonville projected the same market shares for both non-tertiary and OB discharges in the PSA as follows: 2015 -- 22.5%; 2016 -- 33.7%; and 2017 -- 45%. Application of those market shares to Shands North's projected average length of stay (ALOS) results in the following non-tertiary Shands North PSA utilization projections for 2017: 3,841 discharges, and 19,589 patient days. The 2017 Shands North PSA OB utilization projection is 584 discharges and 1,635 patient days. Shands Jacksonville's 2017 SSA projected non-tertiary discharges based on a 15% market share are 1,280 discharges and 6,784 patient days. The 2017 SSA OB projection based on a 15% market share is 128 discharges with 358 patient days. The projected total service area utilization for Shands North in the third year of operation (2017) is: non- tertiary -- 5,121 discharges, 26,373 patient days, and average daily census (ADC) of 72.3 patients; and for OB -- 712 discharges, 1,993 patient days, and 5.4 ADC. Shands Jacksonville used an 80% occupancy standard to calculate a need for 90 acute care beds; and used a 70% occupancy standard to calculate a need for 8 OB beds, resulting in a projected need for 98 total hospital beds. All analysis and market share projections in the Shands Jacksonville application were presented at the PSA and SSA level. Therefore, Shands Jacksonville's historical market share and projected market share by zip code cannot be discerned from the CON application. During CY 2010, Shands Jacksonville's adult non- tertiary market share for the entirety of the Shands North PSA was 26.9%. During the same year, Shands Jacksonville's market share in the SSA was 29%, for a combined service area market share of 28.1%. Memorial's health planner, Dan Sullivan, examined historic market share in the proposed service area on a zip code basis. In 2010, Shands Jacksonville's market share in PSA zip code 32097 was 9%. The other PSA zip code 2010 market shares were: 32218 -- 32.4%; 32226 23.0%; 32041 -- 10.1%; and 32229 -- 33.3% (a P.O. Box with only 3 total discharges during CY 2010). Shands Jacksonville's 2010 zip code level market shares in the proposed SSA were: 32208 -- 42.5%; 32219 -- 31.6%; 32011 -- 21.2%; and 32034 -- 5.6%. On a zip code basis, Mr. Sullivan also examined the market shares of other hospitals drawing patients from the Shands North service area. The 2010 PSA market shares of other hospitals by zip code included: 32218 -- Baptist 24.8%, St. Vincent's 19.8%, Memorial 11.5%; 32226 -- Baptist 19.4%, St. Vincent's 18.4%, Memorial 16.9%; 32097 -- Baptist 22.6%, Baptist-Nassau 45.5% (Baptist combined 68.1%), St. Vincent's 9.1%, Memorial 5.2%. The 2010 market shares of other hospitals in the Shands North SSA included: 32208 -- Baptist 18.3%, St. Vincent's 23.5%, Memorial 9.5%; 32219 -- Baptist 19.6%, St. Vincent's 32.5%, Memorial 8.5%; 32011 -- Baptist 31.8%, Baptist-Nassau 9.6% (Baptist combined 41.4%), St. Vincent's 23.1 %, Memorial 4.5%. A zip code level review of 2010 OB market shares in the Shands North PSA and SSA reveals that Shands Jacksonville's current OB market shares are 25.6% for the total PSA and 27.6% for the total SSA. Existing hospital total PSA OB market shares are: Baptist 21.5% and Baptist-Nassau 11.6% (33.1% combined); St. Vincent's 15%; and Memorial 10.5%. The total SSA market shares are: Baptist 19.1% and Baptist-Nassau 16% (35.1% combined); St. Vincent's 14.1%; and Memorial 10.3%. The Shands Jacksonville application states that utilization for the proposed facility was based on existing Shands Jacksonville market share and market presence in the service area, as well as the absence of an acute care facility in the service area. Shands Jacksonville projects unreasonably large combined market shares for Shands Jacksonville and Shands North. In PSA zip code 32218, Shands Jacksonville has a 32.4% market share and projects a combined 50% market share for both hospitals by 2017. Shands North was projected to experience an absolute growth of 17.6% non-tertiary market share in zip code 32218 due to the redirection of patients from SJMC. There was no persuasive evidence presented at hearing to support these projections. In PSA zip code 32226, Shands Jacksonville has a 23% market share and projects a combined Shands Jacksonville/Shands North market share of 50% by 2017, even though 77% of the patients within 32226 are currently going to other hospitals. In PSA zip code 32097, Shands Jacksonville has only a 9% market share, yet projects a combined Shands Jacksonville/Shands North market share of 50% by 2017. Within the Shands North SSA, the market share assumption for zip code 32208 is reasonable, but the assumptions for zip codes 32219, 32011, and 32034 are not. Shands Jacksonville has 31.6% of the SSA zip code 32219 market, 21.2% in zip code 32011, and only 5.6% in zip code 32034. Although Shands Jacksonville currently has the largest composite market share in the PSA (26.9%) and the SSA (29%), it has not established itself as a dominant provider in the service area. Rather, in many of these zip codes, Shands Jacksonville is the closest hospital, yet many residents are still choosing to seek hospital services elsewhere. Shands Jacksonville's historic market share in the Shands North service area does not support the reasonableness of the projected 45% market share of adult non-tertiary discharges in the proposed PSA, or the projected 15% market share in the SSA. Geographic Access The Shands Jacksonville application asserts that approval of the proposed hospital in northern Jacksonville will improve access to needed health care services in the only portion of the greater Jacksonville area without those services. Specifically, the applicant asserts that access will be improved through the closer proximity and shorter travel times for service area residents comparable to access improvements for other facilities approved over the past decade.4/ (Joint Ex. 1, p. 4) While the CON application did include an estimate of mileage between existing area hospitals, it did not include a travel time study or other analysis to determine whether or to what extent residents of the proposed service area would realize any improvement in geographic access as a result of the new hospital. Nor did Shands Jacksonville offer evidence that residents of the service area could not access existing hospital services within a reasonable travel time. Memorial's health planner, Dan Sullivan, examined average drive times from the major population centers located within each PSA and SSA zip code. This data revealed that 11 minutes is the maximum improvement in average driving time any PSA resident would gain by accessing Shands North. For residents of the most distant PSA town, Yulee (zip code 32097), the Shands North site would be only three minutes closer than Baptist-Nassau. Nearly all of the population within zip code 32097 is contained in two census tracts, with approximately 60% of the zip code's population concentrated in a single census tract, the town of Yulee. Those residents are at least as close to Baptist-Nassau as to the Shands North proposed site. In PSA zip codes 32218 and 32226, there is an 11- minute travel time improvement to Shands North over Shands Jacksonville. The southern part of PSA zip code 32218, where Shands North would be located, is as close to Shands Jacksonville as it is to the proposed new hospital, While the proposed Shands North location would offer minor improvement in drive times for residents of PSA zip code 32218, the residents of that zip code, in comparison to the other PSA zip codes, currently have the best access to existing hospitals. The southern portion of this zip code is approximately equidistant between Shands Jacksonville and the Shands North site. Therefore, those residents would not experience any significant reduction in travel times. PSA zip code 32226 is located east of the proposed hospital site and not along the 1-95 corridor. The majority of these residents currently access hospitals in Jacksonville, including Baptist, St. Vincent's, and Memorial, because these facilities are easily reached by existing road systems. Thus, it is unlikely that a significant number of these residents would alter their historical service patterns to seek care at the new hospital. There is no travel time improvement for SSA zip code 32011. In SSA zip code 32034, it would be much quicker for service area residents to go to Baptist-Nassau than to Shands North. Census tract 503.03 (in zip code 32034) is located only a short distance across the Amelia River from Baptist-Nassau. SSA zip code 32011 is located primarily north and west of the proposed Shands North site. There are no major roads that would facilitate travel for residents of 32011 to Shands North. US Highway 1 runs north to south across the middle of the zip code, and, as reflected in historical market share data, the majority of residents travel south to Jacksonville to receive services at one of the downtown hospitals. For the residents of SSA zip codes 32208 and 32219 it would be quicker to go to Shands Jacksonville or Baptist Medical Center than to Shands North. SSA zip code 32208 borders the zip code where Shands Jacksonville is located and is much closer to the other downtown hospitals than it is to the Shands North location. SSA zip code 32219 is also located closer to Shands Jacksonville's existing campus than to the proposed Shands North location. It is unlikely that patients would travel north from Shands Jacksonville for less comprehensive services at Shands North. Given the location of population centers within the service area of the proposed hospital, and the locations of existing area hospitals, Shands North would offer only minimal, if any, improvements in travel time for the majority of the residents in the service area. Access to Emergency Services Shands Jacksonville's downtown campus has a large and very busy emergency department. It served 87,312 emergency patients in 2010. Shands Jacksonville is designated a Level 1 trauma center. The trauma area within the emergency department has been renovated and expanded but the non-trauma areas are difficult to renovate. According to Dr. David Vukich, Chief Medical Officer of Shands Jacksonville, the emergency department at Shands Jacksonville has both capacity and flow rate issues. Patients could be seen on a timelier basis if the proposed Shands North facility was available. Currently, average throughput of emergency department patients (from time of arrival until departure) is four to four and a-half hours. If the patient's condition is serious enough to warrant admission to the hospital, it may take 10 to 11 hours from presentation until an inpatient bed is available. While emergency department capacity problems have existed at Shands Jacksonville for a number of years, they are particularly pronounced during the winter with a seasonal influx of flu cases. Shands Jacksonville contends that service to emergency patients would be enhanced through approval of the new hospital. Specifically, Shands North would allow a redirection of many ER cases that otherwise come to Shands Jacksonville, thereby "decompressing" the downtown emergency department, and reducing waiting times. There were 75,670 total emergency visits by Shands North service area residents in 2010. 26.8% of those patients accessed those emergency services at Shands Jacksonville. The vast majority of the Shands North service area residents who accessed emergency services (86%) were not transported by EMS vehicle. In CY 2010, EMS transports for emergency services from the Shands North PSA totaled 5,540.5/ Of those, 2,807 (50.7%) were transported to Shands Jacksonville. During the same period, 75% of the Shands North residents who sought emergency department services at Shands Jacksonville travelled there via means other than EMS transport. Based upon its 45% PSA and 15% SSA market share assumptions and the historical use rate within the proposed service area, Shands Jacksonville projects that 25,006 Shands North emergency department visits will originate from the combined PSA and SSA in 2017. Of that number, Shands Jacksonville projects that the Shands North ED will redirect 11,889 emergency visits from Shands Jacksonville, thereby reducing the Shands Jacksonville emergency visit volume by 13.6%. Although Shands Jacksonville argues that decompression of its downtown emergency department strongly mitigates for CON approval, it failed to persuasively establish a need to expand its current capacity. No persuasive evidence was presented that ED patients were experiencing unreasonable wait times prior to being seen by an ED physician, or that patients at Shands Jacksonville were not timely receiving needed emergency services. For example, there was no evidence presented that the Shands Jacksonville emergency department has been placed on “Diversion Status” because it was at maximum capacity. And even had it been established that the "compressed" emergency department at Shands Jacksonville was inadequate to meet patient needs, there was no persuasive evidence that Shands Jacksonville could not expand capacity at the current downtown location. In addition, the contemplated development of outpatient services at the Shands North site, including an urgent care center or freestanding emergency department, would also serve to decompress the downtown location.6/ Such outpatient alternatives could treat many of the less intensive emergency patients that otherwise would have gone to Shands Jacksonville. Moreover, to whatever extent a Shands North emergency department would enhance access for area residents to emergency services; a freestanding emergency department could accomplish this objective. There is no credible evidence in this record that persons requiring emergency services in the proposed service area are not currently accessing those services in a timely manner. Rather, residents of the proposed service area have access to existing hospitals within reasonable geographic proximity. That circumstance is not likely to change in the foreseeable future, given the relatively modest projections of population growth within the service area. Economic Access Shands Jacksonville treats all patients regardless of their ability to pay, and is the provider of choice for indigent populations in the greater Jacksonville area. Shands Jacksonville is one of the largest safety net hospitals in the state. In 2010, Shands Jacksonville provided 24.6% of all bad debt and charity care and 25.3% of Medicaid services received by residents of District 4. There are limited options for those who cannot afford traditional insurance and do not qualify for Medicare. While the Medicaid Program provides funding for qualifying patients, Medicaid reimbursement to hospitals typically does not cover the full cost of providing care. Shands Jacksonville has faced seven decreases to its Medicaid funding in the last five years. In its most recent fiscal year, Shands Jacksonville's reimbursement was reduced by $10 million. The Medicaid program makes Low Income Pool (LIP) payments available for hospitals that provide a disproportionate share of their services to indigent patients. However, the amount of money that Shands Jacksonville receives from LIP funding has decreased over time. Shands Jacksonville also contracts with the City of Jacksonville to provide services to patients that have no other funding source. In 2012, the contract requires Shands Jacksonville to care for over 11,000 patients. Shands Jacksonville receives $23.7 million per year to care for these patients. The number of patients that Shands Jacksonville treats pursuant to the City of Jacksonville (City) contract has increased steadily, while the amount paid by the City has not increased in 10 years. Funding under the City contract falls far short of covering the cost of caring for all 11,000 patients who will be treated pursuant to the contract. Though Shands Jacksonville receives $23.7 million annually from the City, the costs of caring for covered patients ranges from $40 to 60 million per year. Reductions in reimbursement under Medicaid and the LIP program, coupled with inadequate funding under the City contract, have made it increasingly challenging for Shands Jacksonville to continue its mission as the area safety net provider. Many hospitals are able to offset losses incurred from treating Medicaid and indigent populations by attracting patients with better insurance, such as commercial insurance, managed care, or Medicare. However, Shands Jacksonville is not able to successfully cover losses on indigent patients by subsidizing that underfunded care with better reimbursement from traditional payors. There simply are not enough of those better paying funding sources to cover the losses incurred when treating so many uninsured and Medicaid patients. For Shands Jacksonville, location is also an issue. Shands Jacksonville is located in downtown Jacksonville, an area home to the highest concentration of indigent in Duval County. So long as Shands Jacksonville maintains all of its hospital beds and services in its current downtown location, it will continue to be fiscally challenged as the region's safety net provider. Shands Jacksonville's financial travails are not the result of inefficient operations. To the contrary, Shands Jacksonville is already operating as one of the most efficient hospitals in the country. University Healthcare Consortium recently ranked Shands Jacksonville as the fifth most efficient academic hospital in the nation for supply costs, and a top ten most efficient provider overall. With Shands Jacksonville already operating in a very efficient manner, the hospital must look elsewhere for solutions to its funding concerns. Shands Jacksonville could reduce the level of service it provides to those who are unable to pay, or alternatively, enhance its revenues by improving its payor mix. It is the latter solution Shands Jacksonville hopes to achieve by filing the Shands North application to expand into an area of the District with a more attractive payor mix. In its application, Shands Jacksonville did not project a payor mix and did not offer to condition the CON on a specific payor mix due to the uncertainties surrounding health care reform and the Medicaid payment system. However, in its response to Memorial's opposition letter, Shands Jacksonville projected that at Shands North, Medicaid would represent 18%, and self-pay and non-payment would represent 10.2% of total discharges in Year 3 of operation. The Shands North projections are slightly higher than the current levels of Medicaid (16.2%) and self-pay/no-pay (9.5%) discharges for residents of the service area. While the Shands North projections do not reflect significant increases in the levels of service to Medicaid and indigent patients in the proposed service area, they do reflect a more favorable payor mix as compared to the Shands Jacksonville downtown location. For example, the Shands North projected Medicaid volume is 18%, while the downtown hospital is projected to be 29.4%. Similarly, the Shands North location is expected to have a significantly higher mix of commercial insurance, at 22.6%, than the downtown hospital, at 9%. The levels of Medicare and "all other payors" are projected to be virtually identical at the two Shands Jacksonville locations. There was no persuasive evidence in this record that traditionally underserved patients (Medicaid and indigent) residing in the proposed service area are not currently able to access needed hospital services. Similarly, there was no evidence adduced at hearing that existing providers are denying access to hospital services based upon financial criteria. Section 408.035(1)(e): The extent to which the proposed services will enhance access to health care for residents of the service district. In addition to its arguments relating to enhancement of geographic, emergency and economic access, Shands Jacksonville contends that in order to maintain its' long-term viability as the safety net hospital in District 4, it needs an acute care presence beyond downtown Jacksonville. As previously noted, the downtown hospital has a relatively high percentage of indigent patients and governmental payors. Shands Jacksonville asserts that the approval of Shands North, with a higher mix of managed care, commercial, and Medicare patients would diversify and improve the overall payor mix of the organization. However, Shands Jacksonville's application did not include pro forma financial projections, or otherwise quantify the extent to which the improved payor mix would bolster the organization’s bottom-line financial performance or overall financial condition.7/ Nor was such testimony offered at the final hearing. As noted, in its written response to Memorial’s letter of opposition, Shands Jacksonville projected that 18% of Shands North’s discharges would be Medicaid, and 10.2% would be self-pay or no-pay. However, no financial information or schedules were included to demonstrate that with these relatively high levels of low-pay or no-pay patients the new facility would generate revenues in excess of expenses, and therefore make a positive contribution to Shands Jacksonville’s overall financial health.8/ In the absence of such evidence, there is no basis to determine the extent to which approval of the Shands North hospital would contribute to Shands Jacksonville's long term financial viability, if at all. Accordingly, this criterion does not weigh in favor of approval. Section 408.035(1)(g): The extent to which the proposal will foster competition that promotes quality and cost-effectiveness. There are a total of eight existing general acute care hospitals located in Duval County. In addition, Baptist Medical Center-Nassau is located in adjacent Nassau County, within Subdistrict 4-1. There are also two CON-approved, but not yet operational hospitals in the greater Jacksonville area. 107 As previously noted, for adult non-tertiary discharges in CY 2010, Shands Jacksonville had the highest reported market share (26.9%) from the PSA among other area hospitals, followed by Baptist Medical Center (23.6%); St. Vincents (17.8%); Memorial (11.2%); and Baptist-Nassau (8.9%). The remaining area hospitals each accounted for less than 4% of the PSA discharges. There is a competitive market for hospital services in the proposed service area. There is no persuasive evidence that approval of the project would likely make any significant inroads into the already competitive market in the greater Jacksonville area, and the proposed service area in particular, with Shands Jacksonville, Baptist, and St. Vincents being the dominant providers. Aside from offering a minor improvement in drive times for residents of PSA zip code 32218 to receive non- tertiary and OB services and some cost-savings, e.g., travel- related costs and time, there is no persuasive evidence that the project is likely to foster competition that promotes quality and cost-effectiveness. This criterion does not weigh in favor of application approval. Section 408.035(1)(i): The applicant's past and proposed provision of health care services to Medicaid patients and the medically indigent. There is no question that Shands Jacksonville plays an important role as a safety net provider in the greater Jacksonville area. Shands Jacksonville provides more care to Medicaid and medically indigent patients than any other acute care hospital or hospital system in District 4. Shands Jacksonville provided 47.4% of its total patient days to Medicaid, Medicaid HMO and charity patients in CY 2010. By comparison, the other District 4 facilities provided on average only 18.6% of their patient days to those payor classes during CY 2010. Memorial challenged Shands Jacksonville's commitment to Medicaid and indigent patients within the proposed service area because the application did not offer specific conditions relating to the provision of services to those payor classes. However, given Shands Jacksonville's historic commitment to these populations, and its projected payor mix within the service area, Memorial's argument in this regard is rejected. The applicant complies with this criterion. Other Arguments for Approval Shands North as Evacuation Center As an additional basis for approval, Shands Jacksonville points out that Shands North would be located in a low priority evacuation zone, on high ground. As such, Shands North would serve as an additional evacuation center for residents of Amelia Island and other coastal areas. In addition, Shands North would be a valuable asset in the evacuation of inpatients from Baptist-Nassau and for special needs residents, such as persons dependent on electrical medical equipment. However, Shands did not offer documentation or evidence that demonstrated that coastal community residents had experienced any prior natural disasters or evacuation orders, or that there are currently inadequate accommodations for evacuees. More importantly, a hospital applicant's proposed service as an evacuation center is not contemplated by any of the CON review criteria, and therefore is not relevant. Job Creation Shands Jacksonville contends that another basis for approval is that the new Shands North hospital will create jobs during the construction phase and, once operational, long-term employment at the hospital. Although temporary construction jobs may occur during new hospital construction to some unknown extent, the same would be true of any health-care related or other building construction. Further, any new jobs associated with hospital operations would be very limited because Shands North patients would have been redirected from other existing hospitals and ostensibly some personnel at other hospitals, such as Memorial, would simply shift their employment to Shands North. Again, this argument for approval is not contemplated by any of the CON review criteria, and therefore is not entitled to any weight in the ultimate determination. Adverse Impact Impact from Lost Cases Memorial's planning expert analyzed the expected adverse impact on Memorial and other hospitals likely to result from development of Shands North under three different scenarios. The first approach utilized the patient shift from Shands Jacksonville to Shands North as assumed in the CON application. If realized, that scenario would result in a 2017 loss of 2,115 patients by Shands Jacksonville, 1,138 by Baptist, 953 by St. Vincent's, 491 by Memorial, and 589 by Baptist- Nassau. The second approach assumed that the impact on existing providers would be in proportion to the historical market shares of those providers in 2010. This appears to be the most realistic and likely of the three scenarios. This scenario results in a lesser impact on Shands Jacksonville and a somewhat greater impact on the other providers. The third scenario assumed that 75% of Shands Jacksonville's discharges from Scenario 2 shift to Shands North. This scenario would result in less impact on Shands Jacksonville and greater impact on the other providers. This is the least likely of the three scenarios. The following chart summarizes the potential impact on area hospitals (in lost discharges) under the three scenarios: Projected Adverse Impacts Scenario 1 of Shands North Scenario 2 in 2017 Scenario 3 Shands Jacksonville (2,115) (1,593) (865) Baptist (1,138) (1,320) (1,536) St. Vincent's (953) (1,057) (1,250) Memorial (491) (592) (681) Baptist-Nassau (589) (616) (745) (Memorial Exhibits 31-33) Scenario 1 would result in a $3.5 million annual contribution margin loss to Memorial: $2 million from OB and non-tertiary services; $1 million from outpatient services; and $430,000 from ED services. Scenario 2 would result in a $4.3 million annual total contribution margin loss, and Scenario 3 would result in a $4.9 million annual total contribution margin loss. As noted above, Scenario 2 is the most likely projection of lost volume at Memorial, but in any event, the range of potential lost contribution margin impacting Memorial is between $3.5 million and $4.9 million annually. In 2010, Memorial had an after-tax total margin of $50,191,932. Thus, a recurring financial loss within this projected range would represent a loss of between 7% and 10% of Memorial's net profit, and would constitute a material adverse financial impact. Adverse Impact on Staffing With the opening of three new hospitals, competition for nurses and other health professionals in the Jacksonville area is likely to increase significantly. Specifically, approval of three new hospitals in the market (the previously approved St. Vincent's Clay and HCA West Jacksonville, and the proposed Shands North), even with staggered openings, will create increased competition for nurses and other trained clinical staff. As a result, it will become increasingly difficult for both existing and new providers to attract and retain staff. Consistently hard to fill positions include experienced RNs, who are sought for all hospital departments, not just medical/surgical units. It is particularly difficult to find experienced nurses for high-intensity hospital services, such as critical care and the emergency department. Currently, Memorial has 51 RN vacancies, and Memorial's 12-month average vacancy rate for RNs is about 6.5%. Like Memorial, Shands Jacksonville also has openings for experienced RNs. The Shands Jacksonville application did not project the number of nurses or other personnel that would need to be hired to staff the new hospital. Memorial's witness on staffing issues, Steven Burgess, estimated that between 45-60% of new hospital positions are typically filled by RNs. According to Mr. Burgess, this equates to an estimated need for Shands North to hire between 150-170 new RNs. However, Mr. Burgess' estimate did not account for the fact that upon licensure of Shands North, 100 acute care beds at Shands Jacksonville would be de- licensed, and some of the nurses employed at the downtown location would likely be transferred to the new facility. Whatever the ultimate number of nurses and other personnel required to staff Shands North, because a significant number of Memorial's RNs and other staff live closer to Shands North, Memorial is likely to lose staff to the new hospital, and as a result, incur additional personnel costs. About 225 Memorial employees (15% of the total), including 75 RNs (11%), live closer to the proposed Shands North site than to Memorial. These individuals are most at risk of being lost to Shands North, since many would be attracted to a new hospital closer to their homes. Although it is not possible to quantify a specific dollar impact, Shands North recruiting efforts will likely drive up labor costs for Memorial and the other area hospitals, including increased retention bonuses, increased recruiting bonuses, hiring contract labor, and additional overtime. These costs will likely be compounded by the additional competition resulting from the opening of the two previously approved hospitals in the Jacksonville market.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order denying CON Application No. 10125. DONE AND ENTERED this 7th day of December, 2012, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS 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 7th day of December, 2012.
Findings Of Fact The parties to this administrative action have stipulated to certain facts for evidentiary purposes, and with the Exhibits and applicable law, form the bases upon which this case will be decided. The parties agree that the operative facts are as follows: Pursuant to Section 381.494(5), Florida Statutes (1985) and Rule 10.5.08, Florida Administrative Code, a Letter of Intent to apply for a Certificate of Need must be received by the Department and the Local Health Council on or before Monday, September 15, 1986. See Section 381.494(5), Florida Statutes, which provides as follows: [a]t least 30 days prior to filing an application, a letter of intent shall be submitted by the applicant to the local health council and the department respecting the development of a proposed subject to review. Through the affidavit of Ruth Alveranga, Executive Secretary to the Vice President of Operations, Jackson Memorial Hospital, it was established that Ms. Alveranga personally typed and handed the Petitioner's Letter of Intent to a postal employee, who was at the time picking up mail at Jackson, on Friday, September 12, 1986. Both parties were informed by the Postmaster General of Tallahassee, Florida, that under normal circumstances, letters mailed in Miami to the Department on Friday, will be delivered to the Department the following Monday. Because of a staff shortage due to employee absenteeism and the usual large flow of mail which is delivered each Monday, some of the mail received at the Department on Monday, September 15, 1986, was neither identified nor distributed to the various Program Offices, nor was the mail stamped as received on or before September 15, 1986. The mail received at the Department's mail room on or before September 15, 1986 was delivered to the Office of Health Planning and Development and other sections of the Department on September 16, 1986, where it was stamped as being received by the Department on September 16, 1986. The Office of Health Planning and Development has accepted Letters of Intent received after the due date, if it was documented that an agent, such as Federal Express, was negligent in the timely delivery of the Letter of Intent. At the final hearing, the Department raised the issue of whether the Petitioner has timely filed its application with the local health council. However, the local health council did not assert the untimeliness of such filing in this proceeding, but rather urged the Department to accept the application because of the severe over-utilization of the present C.T. scanner being experienced by the applicant.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department accept the Petitioner's Letter of Intent as timely filed, expedite review of Petitioner's Certificate of Need and make a determination regarding Petitioner's Application for a Certificate of Need within thirty (30) days from the day the application is declared to be complete. DONE and ENTERED this 5th day of January, 1987 in Tallahassee, Florida. SHARYN L. SMITH 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 5th day of January, 1987. COPIES FURNISHED: Robert L. Blake, Esquire Assistant County Attorney Public Health Trust Division Jackson Memorial Hospital 1611 N.W. 12th Avenue West Wing, 108, Suite C Miami, Florida 33136 John Rodriguez Legal Representative Department of HRS 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700 William Page, Jr., Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issues presented concern the question of whether the Petitioner should be entitled to stand examination and be granted a license from the State of Florida, Department of Insurance and Treasurer, for the position of general lines agent. Particular consideration is given to the letter of denial of Petitioner's application which sets forth the grounds for denying the request for licensure. The date of that Statement of Denial is March 3, 1983.
Findings Of Fact Petitioner, John R. Beck, was formerly licensed as a general lines agent by the State of Florida, Department of Insurance and Treasurer. Effective April 21, 1980, Petitioner had his license privilege revoked for a period of two years. Indeed, the revocation term ensued and ended on April 21, 1982. Petitioner now seeks relicensure. That request has been denied through correspondence submitted from Respondent to Petitioner, dated March 3, 1983. The statutory basis for denial is discussed in the Conclusions of Law portion of this Order. Petitioner did not accept the proposed agency action of denial and following request for a formal hearing, a hearing was conducted by the Division of Administrative Hearings on June 13, 1983. When Petitioner held his license as a general lines 220 agent, he operated as John Beck Insurance Agency. Subsequent to that time his title with that company has been one of clerk. For the most part, Petitioner has written applications for insurance, answered the phone and done filing in his clerical capacity in the insurance office. In that position, he has been supervised by general lines agents in the Beck office, namely John B. Hancock and Monica Gail Beck, his wife. During Mrs. Beck's period of supervision, she has signed all applications. That time commenced in February 1983, and corresponds to the place and time when Monica Beck became the agent-owner of Beck Insurance. Monica Beck was the agent-owner of Beck Insurance at the time of the final hearing in this cause. At times when Beck was supervised by Hancock he would sign Hancock's name on the application in that place where the agent was supposed to sign. The signatures were made with the permission of Hancock. On occasion the signatures would be placed by Beck before the application was reviewed by Hancock as general lines agent. Nonetheless, all applications on which Beck placed Hancock's name were reviewed by Hancock. Even though most of Beck's duties were performed in the insurance office proper, during the time he served as clerk, subsequent to the revocation of his general lines agent's license, there were occasions when he took applications outside the confines of the office. Those trips outside the office were made with the permission of Hancock, when Hancock was serving as supervisor to Beck. One of these occasions concerned a transaction with Judy Suddeth. On November 30, 1981, Suddeth was attempting to purchase insurance as a prerequisite to obtaining an automobile tag for her car. She was recommended to the Petitioner for this purpose by an acquaintance of her daughter's who worked at River City Chrysler-Plymouth. That acquaintance contacted the Petitioner and Suddeth met Beck at River City Chrysler-Plymouth where he took her application for insurance. Beck was not accompanied by any supervising agent from his office at the time the application was taken. As part of the process Beck presented Suddeth with a business card, which is found as Respondent's Exhibit No. 1 entered into evidence. That card identifies Beck as the agent-owner of the insurance company known as John Beck Insurance Agency. The card states in its advertisement "All Lines Insurance at Your Door." Suddeth paid $72 down payment with the balance of the premium price to be financed by Castle Premium, after an application form was filled out by Petitioner and signed by Suddeth. The policy was to be effective from November 30, 1981, through November 30, 1982. Suddeth had a further transaction with Beck in January 1982. This occurred as a result of her purchase of another automobile. She was told by the proprietor of Warren Motors, who sold her the car, that she needed to have insurance for the car and was asked what company she might have in mind. The same acquaintance mentioned before and her daughter were with her on this occasion and that acquaintance suggested that Suddeth contact the Petitioner to purchase the insurance. Tbe acquaintance called Beck's office and the Petitioner came to Warren Motors to deal with the policy question on the purchase of the automobile, unattended by a -supervisor from his office. A copy of the application form that was executed by Petitioner may be found as Respondent's Exhibit No. 2 admitted into evidence. As was the initial case of the purchase by Suddeth in November 1981, this was an application to purchase insurance from Kenilworth Insurance Company. Suddeth signed the request as applicant and Beck signed the document with John Hancock's name on the signature line for the brokering agent. As a part of the application process, Suddeth signed on the part of the form related to the acceptance of uninsured motorist's coverage and on that signature line related to personal injury protection with a deductible of $8,000. Suddeth had indicated to Beck that she was desirous of sufficient insurance to "drive that car off the lot," and that was all. Beck did not ask her whether she wanted a deductible for personal injury protection or explain to her what the significance of that coverage might be or what the term "deductible" meant. At the hearing, Suddeth expressed an understanding of what a deductible policy meant. Suddeth did not make a close review of the application. At the time of the 1982 transaction, Suddeth also signed or made application to be a member of the Nation Motor Club, Inc. A copy of that application may be found as Respondent's Exhibit No. 3 admitted into evidence. She did not tell Beck that she wanted to be a member of the motor club when he asked. In fact she responded in the negative. Nor did she indicate that she would be interested in towing coverage when Beck inquired about towing coverage. She again told him no. Nonetheless, she signed that item because Petitioner told her to sign it. She paid $25 for membership in the motor club, along with $106 as a down payment on the insurance policy with a balance to be financed through a premium finance arrangement. It was not until several weeks later that she discovered that she had purchased a membership in the motor club. Kenilworth Insurance Company went bankrupt and Suddeth lost coverage from that company. She did not receive any reimbursement following that bankruptcy. Neither did she receive money back from the purchase of the motor club benefits, nor receive any of the materials describing the benefits. In this connection, she has not asked Beck for a refund for the motor club purchase. Steven Ray Christian purchased an automobile from Coggin Pontiac on February 24, 1982. While at the dealership, the salesman introduced Christian to the Petitioner. Petitioner then processed Christian's application for insurance. No supervisory representative from Beck's office was with him on this occasion. Petitioner was not summoned to the dealership specifically to process the application. His presence was a happenstance. The application was for insurance from Kenilworth Insurance Company for the period February 23, 1982 through February 23, 1983. Christian wanted coverage sufficient to get a tag for the automobile being purchased. The application was signed by Christian, to include his signature indicating the desire to have uninsured motorist's coverage. In addition, Christian signed that entry related to personal injury protection options and the election for a deductible of $8,000. A discussion was entered into between the Petitioner and Christian on the subject of personal injury protection in which Petitioner explained the concept. It is unclear whether that discussion included a decision to elect the $8,000 deductible. Christian was provided a copy of a business card which had the same appearance as that card provided to Suddeth, as described before. That card is admitted into evidence as Respondent's Exhibit No. 4. Christian did not request the right to join a motor club when discussing his insurance needs. He did indicate his desire to have towing service. Christian had already purchased a membership in a motor club from the Coggin Pontiac Agency. Christian paid $35 through Petitioner to provide towing service. Christian did not review the application for insurance before he signed it. One other matter of customer involvement while Petitioner was employed as a clerk at the Beck Insurance Agency concerned an insurance purchase by Pamela Beals. In particular, she bought policies for her benefit and for the benefit of her father. She had been recommended to speak to the John Beck Insurance Agency by an individual at Southside Ford. Beals went to the office of John Beck Insurance Company on Atlantic Boulevard in May of 1982. When she entered, Petitioner was at a desk. Beals was given the impression that Beck owned the insurance agency in that John Beck Insurance Agency was written on the door of the office and in view of a card which she was given which indicated that John Beck was the owner of the company. Petitioner filled out an application from Beals for a car she was purchasing and for two cars for her father. Beals explained what coverage she wanted and indicated she was in a hurry. She then signed the applications and paid for the coverage by Beck. When she received her policy from the Utah Fire Insurance Company, she discovered that the policy indicated a $150 deductible as opposed to a $100 deductible which she had requested and the fact that the personal injury protection indicated an $8,000 deductible when in fact she desired no deductible in that category. The origins of these errors were not established in the hearing. She also received a letter from the insurance company indicating that her premium amount would be greater because she did not have her license for three years nor had she been previously insured. She was told by the insurance company that the reason for this adjustment was in view of the fact that they had discovered that she did not have prior insurance from Allstate as had been indicated on the application and her lack of driving experience. The information about Allstate Insurance was not on the application Beck processed on the day her insurance was purchased. Beck had written down on the application form filled out at the time of the visit to the office that Beals had her license for three years. Beals did not tell the Petitioner that information, which was false. In fact, Beals had never owned a car and never had purchased insurance before dealing with Beck. Subsequently, Beals decided to cancel the policy with Utah Home Insurance and was informed that this should be done to the John Beck Insurance Agency. She spoke to Monica Beck who explained that this matter would be attended. She finally received a refund from the purchase of insurance from the Beck agency in the amount of $36 out of the $300 plus paid for the policy period. She also received $35 back as a refund for purchase of motor club rights through Petitioner. In that regard, Beals had told Beck that she wanted towing services; however, she did not mention a request to join a motor club. Petitioner indicated that the Utah Home Insurance Company did not provide towing coverage and that another policy would be necessary to obtain the coverage. In dealing with the customers who are referred to in this Recommended Order, Petitioner failed to indicate to them that he was a clerk as opposed to a licensed agent, or to offer any other comment which would tend to demonstrate that he was not an insurance agent for John Beck Insurance Agency. By way of explanation related to the business cards which showed him to be the insurance agent for the company, Petitioner stated it was simply a matter of having "leftover" cards from the time when he was licensed and not using up those cards. He acknowledged that persons might be misled by the statement on the cards to the effect that he was the agent-owner of John Beck Insurance Agency. All events reported above occurred in Duval County, Florida.
The Issue The issue is whether, under the Florida Retirement System, Petitioner occupied a regularly established position while working as a pool respiratory therapy technician at Jackson Memorial Hospital for 12 years.
Findings Of Fact Petitioner is a certified respiratory therapy technician. Her first job as a respiratory therapy technician was at Mercy Hospital in Miami. Later, she worked at Coral Gables Hospital in a similar capacity. In May or June 1991, Petitioner began working at Jackson Memorial Hospital. She and Jackson Memorial Hospital executed a Respiratory Pool Contract for Therapists and Technicians. The contract referred to Petitioner as a "per-diem employee." The term of the contract was from May 28, 1991, through October 31, 1991, subject to renewal, but the parties never renewed the contract in writing. After listing the benefits in the section addressing compensation, the contract provided: "[Jackson Memorial Hospital] participates in the State Retirement System after four months of continuous employment." The reference to the "State Retirement System" is to the Florida Retirement System (FRS), in which Jackson Memorial Hospital participated at all times material to this case. The contract required Petitioner to work at least two shifts per pay period and to notify her supervisor by the tenth day of the month as to the days and hours that she will be available to work during the following month. The contract stated that either party may cancel a scheduled work shift, but only on at least two hours' notice to the other party. The contract provided that Jackson Memorial Hospital may terminate the contract without case on 14 days' notice. The contract provided that Jackson Memorial Hospital "shall exercise exclusive control and/or direction over the method and matter by which [Petitioner] performs [her] professional services and functions to the extent permitted by law." The contract subjected Petitioner to the supervision of her supervisor and required that she conform to all rules and policies of Jackson Memorial Hospital, including its "Standards of Excellence," dress code, and personnel policies. During her employment with Jackson Memorial Hospital, Petitioner has received training, including directions to follow a strict script while interacting with patients in their rooms. Immediately upon commencing employment with Jackson Memorial Hospital, Petitioner and her supervisor agreed that, unless Petitioner notified her supervisor to the contrary by the tenth of the preceding month, Petitioner would work a specific shift for 40 hours per week from Tuesday through Saturday during each week of the month. This agreement remained in effect until two or three years ago, when Petitioner and her supervisor agreed that Petitioner would work only Sunday and Monday each week, unless Petitioner notified the supervisor to the contrary by the tenth of the preceding month. From 1991 through the present, Petitioner has suffered no breaks in employment, meaning that she always has worked for at least part of each calendar month. In almost every month, she worked for at least very substantial parts of the month. She reported to work despite the birth of grandchildren and hurricanes. Perhaps four or five times each year, Jackson Memorial Hospital would not have enough work to warrant Petitioner's presence. Routinely, Petitioner's supervisor asked her to work a double shift because the hospital had too much work relative to available staff. During her 12-year career with Jackson Memorial Hospital, Petitioner has received numerous commendations for outstanding professional performance from her employer. From 1991 through the present, Petitioner has worked as a respiratory therapy technician only at Jackson Memorial Hospital. During this time, Petitioner has earned about 20 percent more than respiratory therapy technicians who are not in the pool. However, the record provides no basis to infer that this differential reflects the market value of the retirement contributions that the employer is making on behalf of the non- pool employees. These non-pool employees also enjoy other benefits not extended to pool employees, such as health, life, and dental insurance, paid holiday and sick leave, overtime for more than 40 hours' work per week, and flexible benefit plans for medical and dependent child care expenses. Jackson Memorial Hospital made FRS contributions for Petitioner for January 1992, June and July 1994, June 1995, and September 1995. Jackson Memorial Hospital has deducted Social Security contributions and federal income tax withholding from every paycheck that it has given to Petitioner. Although Petitioner's W-2 forms for 1991-93 were unavailable, her W-2 forms for 1994-96 showed that she participated in a pension plan. The remaining forms were illegible or showed no pension plan. The only reason that Petitioner could not leave the pool of respiratory therapy technicians, as she requested to do three times, was that she was not certified by the National Board of Respiratory Care. Respondent has not questioned that Petitioner is an employee, rather than an independent contractor. Jackson Memorial Hospital has treated her as an employee in taking contributions and withholding from Petitioner's paychecks. Respondent has adopted a rule, set forth in the Conclusions of Law, setting forth the guidelines to determine whether an individual is an employee or independent contractor. Petitioner satisfies each of the 20 tests, indicating that she is an employee, not an independent contractor. Overall, Petitioner is clearly subject to the close control of her employer, which has even scripted her conversations with patients. Among the specific tests, Jackson Memorial Hospital has trained Petitioner and integrated her technical services into the professional services delivered to its patients. Petitioner has delivered her services personally to Jackson Memorial Hospital's patients, has had a continuing relationship with her employer over 12 years, works set hours agreed upon in advance by her employer, works fulltime exclusively for Jackson Memorial Hospital, works on the employer's premises, uses the tools and material provided by her employer, works for a wage rather than a profit expectancy, does not offer her services to the general public, may quit at anytime, and is subject to firing at anytime. The real issue in this case goes to the special emphasis that Respondent's rules give to one of the tests of an independent contractor: the continuing relationship. In the language of the rule, which is discussed in the Conclusions of Law, the question is whether Petitioner has been filling a temporary position. The specific rule provision applicable to this case requires a factual determination of whether she occupies an "on call position," which is by definition a temporary position ineligible for FRS coverage because it is not a regularly established position. An "on call position" is a position filled by an employee who is "called to work unexpectedly for brief periods and whose employment ceases when the purpose for being called is satisfied." Twelve years' experience teaches that Petitioner was not called to work unexpectedly. Early each month, Petitioner and her employer agreed upon her work schedule for the following month. Rarely did her employer cancel a shift of Petitioner. Occasionally, the employer needed Petitioner to remain at work past her scheduled shift. But neither of these situations occurred with such frequency as to undermine the finding that Jackson Memorial Hospital scheduled Petitioner's work schedule well in advance, and, each month for 12 years, Petitioner performed her job in strict accordance with this schedule. The two remaining elements of the rule defining "on call positions" also do not apply to this case. Petitioner did not work "brief periods." She has worked day after day, week after week, year after year, for 12 years. The word "brief" does not apply to any aspect of her employment career with Jackson Memorial Hospital. Nor has her employment "cease[d]" at anytime during these 12 years.
Recommendation It is RECOMMENDED that the Division of Retirement enter a final order determining that, following the sixth consecutive calendar month after the commencement of employment at Jackson Memorial Hospital in 1991, Petitioner has been employed in a regularly established position under the Florida Retirement System. DONE AND ENTERED this 24th day of February, 2004, in Tallahassee, Leon County, Florida. S 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 24th day of February, 2004. COPIES FURNISHED: Sarabeth Snuggs, Interim Director Division of Retirement Department of Management Services Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Alberto Dominguez, General Counsel Division of Retirement Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-1560 Mel Correa Qualified Representative c/o Nora H. Correa 8350 Northwest 168th Street Miami Lakes, Florida 33016-3467 Thomas E. Wright Assistant General Counsel Department of Management Services 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950
Conclusions THE PARTIES resolved all disputed issues and executed a Stipulation and Agreement, which is attached and incorporated by reference. The parties are directed to comply with the terms of the attached Stipulation and Agreement. Based on the foregoing, this file is CLOSED. DONE AND ORDERED this 7D day of DcMen... I 2009, in Tallahassee, Leon County, Florida. I T&a . t:lo Secretary Agency for Health Care Administration A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW, WHICH SHALL BE INSTITUTED BY FILING THE ORIGINAL NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A COPY, ALONG WITH THE FILING FEE PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF THE RENDITION OF THE ORDER TO BE REVIEWED. Filed November 2, 2009 1:20 PM Division of Administrative Hearings. Case No. 08-1995MPI ARCA vs. City of Jacksonville Fire Division Rescue Service Final Order CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished by United States Mail and by facsimile transmission (904)630-1731 to Loree L. French, Esquire, Attorney for the Respondent; City of Jacksonville, 117 West Duval Street, t::5-_ Suite 480, Jacksonville, Florida 32202 this ...5.. 1) day of October, 2009. ?Sb RICHARD J. S::P, A:;y Clerk Agency for Health Care Administration 2727 Mahan Drive, MS #3 Tallahassee, FL 32308 (850) 922-5873 2
Findings Of Fact At all times relevant hereto Respondent was licensed as a medical doctor in Florida and was under contract with the Hillsborough Community Mental Health Center, Inc. to provide psychiatric services to the mental health center 20 hours per week. (Exhibits 1 and 14.) On October 2, 1986, Michael Burton, a Hillsborough County Deputy Sheriff received a call regarding an emergency in an isolated area on the I-75 north of Tampa. Upon his arrival he found M.H., a 21-year old white male handcuffed in the back seat of a game warden's car. A pick-up truck belonging to M.H. had a flexible hose connected to the exhaust to lead into the cab, several suicide notes and a girl's photograph were in the cab of the pick-up. Burton was told by the game warden that while conducting a routine check of the area, he had come upon M.H. attaching the flexible hose to the exhaust of the pick-up, and he arrested M.H. and called for law enforcement personnel. M.H. was transferred to Burton's car and, realizing M.H. was suicidal and consequently a danger to himself, Burton concluded M.H. should be committed and he called for a wrecker to tow away M.H.'s vehicle. M.H. did not agree to voluntary commitment and he was held for involuntary commitment. Due to the isolated location the wrecker took more than an hour to arrive on the scene. During this period Burton talked to M.H. who told Burton he was from South Dakota, he had come to Florida looking to work without success, that he hadn't bathed or eaten for a week, that he had been placed on parole in South Dakota for burglary and that in leaving the state he had violated his parole, and that life was no longer worth living. He also told Burton that although he had been stopped this time (from suicide) he wouldn't be stopped the next time. While awaiting the arrival of the wrecker Burton prepared some of HRS- MH Form 3052A (BA-52) (Exhibit 2) which is the report of law enforcement officer to justify the involuntary presentment of a client for examination to insure the client is not a danger to himself or to others. This is the procedure generally followed for patients presented by law enforcement officers pursuant to the Baker Act. Burton completed this form when he delivered M.H. to the CSU. Upon arrival of the wrecker Burton departed with M.H. who had no opportunity to speak to the driver of the wrecker. Enroute to the crisis center Burton stopped at a McDonald's restaurant where he bought a hamburger, fries and a coke for M.H. Upon arrival at the crisis center Burton delivered M.H. to the receptionist, had copies made of the suicide notes which he left with the BA-52 containing Burton's opinions regarding M.H. being a danger to himself and the observations supporting that opinion. Those observations recited: [M.H.] was found hooking a hose up to the exhaust system of his vehicle and had written suicide notes to his girl friend and mother. [M.] advised he came to Tampa from N. Dakota seeking work and has not been able to find anything. He stated he has not eaten or bathed in one week and has nothing to live for. Seemed very depressed and stated that death was the answer. [M.] has had mental health counselling in North Dakota at "Northwest Mental Health Center" involving his girlfriend committing suicide several years ago. He is also on criminal probation in N. Dakota for burglary and has violated his probation in leaving that state. Found in his possession was an article called "Near Death Experiences" that he had been reading, in which he copied an "epitaph" from. The Intake Sheet at the mental health center classified M.H. as a Baker Act patient and the Sheriff's report with suicide notes were attached to the Intake Sheet and presented to the crisis center counsellor to interview the patient and prepare the evaluation. The crisis center counsellor who interviewed M.H. and prepared the summary in exhibit 5, Kris Millrose, holds a master's degree in counselling and worked two nights per week at the crisis center. His normal procedure is to interview the client and make notes. He had available the information prepared by Deputy Sheriff Burton when he interviewed M.H. He made no effort to verify conflicts in what M.H. told him and what was contained in the Sheriff's report. He does not recall what he told Respondent during the telephone call, but he deemed it important to share with the doctor that patient had been brought in suicidal and the reasons given on the Baker Act form. He does not recall Respondent questioning him about the suicide notes but believed their existence would have been relayed to the doctor. Respondent concurred with Millrose's evaluation of M.H. and ordered him released. Millrose's evaluation recites: Pt to CSU as a 21-year old white male, unemployed, single and at large. Pt is on BA-52 via HCSO who found pt parked on state property. Pt states he had been sitting for a long time in this spot drinking beer thinking about his girlfriend in South Dakota and feeling sad over not having job and no place to live. Pt states his main concern was having very little money and no job. Patient was not aware he could go to the Salvation Army. Pt was thinking about suicide this afternoon, but adamantly denies being suicidal at present. Pt states the man who towed his truck today at the request of HCSO offered pt a job and possibly a place to stay. Pt states there is no work in South Dakota and his girlfriend just started college. Pt had been to Tampa one year ago when he decided to come back here. Pt denies trying to hook up a hose to his exhaust pipe. Pt states HCSO found him sitting in the back of his pick-up truck drinking beer. Pt states loving life and knows there is hope regardless of the notes he wrote to his mother and girlfriend. Pt does not appear a danger to himself or others at this time. He is planning on getting a job here or going back to Atlanta where he spent a day on his way to Tampa. Pt states having a little money left as he spent some last night staying in a motel. Pt requested something to eat and was given something. Following his release around 10:00 p.m., M.H. telephoned the wrecker company to see if he could pick up his vehicle and was told he would need a release from the Sheriff. M.H. then made his way across town to the lot where his truck was impounded, climbed the fence, entered his vehicle and drove it through the locked gate around 11:00 p.m. The Sheriff's office called the crisis center to obtain the name of the counsellor and doctor who authorized the release of M.H. Two days later M.H. partially decomposed body was discovered in north Pasco County in the cab of his vehicle with a hose connected to the exhaust leading to the cab. Crisis counsellors report several patients to the doctor during one telephone call. Millrose doesn't recall any specific details of his conversation except that after M.H. had been ordered released and he received the call from the Sheriff's office he again called Respondent to report the incident regarding the truck and Respondent stated patient had an antisocial personality disorder and should be put in jail. Millrose advised the Sheriff's office that M.H. should be arrested. Following four suicides by patients released from the crisis center in 1986 and 1987 it came to the attention of the public through newspaper articles and to the Department of Health and Rehabilitative Services that several individuals referred to crisis centers under Baker Act procedures had been released without adequate evaluation and had committed suicide. As a result of these inquiries Respondent's attention was recalled to the incident involving M.H. more than one year after October 2, 1986. It was at this time he first reviewed the file and actions that had been taken. This time frame is significant in evaluating Respondent's testimony. Contrary to Millrose's recollection of the specifics of his evaluation of M.H., Respondent testified that he recalls Millrose advising him that M.H. had been brought to the crisis center by a deputy sheriff when M.H. was found attempting to hook up a hose to his exhaust, but that M.H. denied that ever happened. He recalls being told by Millrose that M.H. stated he had been offered a job by the man driving the wrecker, that M.H. was neat in appearance, was not suicidal and exhibited no psychotic symptoms, that patient had some money and a supportive girlfriend. He recalls being told by Millrose that M.H. was picked up on State property drinking beer in his truck, that he had contemplated suicide earlier but was now no longer suicidal. He further testified Millrose didn't tell him about the suicide notes, didn't tell him M.H. had come from South Dakota and was out of work, but that he (Respondent) had discussed the status of the patient and whether M.H. was a danger to himself. Respondent's testimony that he learned of the suicide of M.H. over a year after the incident and first reviewed the records after that, coupled with Millrose's testimony that several cases would be discussed with the psychiatrist during each phone call, renders Respondent's detailed recollection of the telephone conversation with Millrose totally lacking in credibility. Petitioner's expert witness opined that the evidence of lethality contained in the BA-52 and the suicide notes was overwhelming. These included the age and sex of M.H., the fact that he was a long way from home and the availability of supportive services, that he had been drinking alcohol, that he had no job and little money, that he was apprehended in the process of committing suicide, the suicide notes, and the article he had been reading "Near Death Experiences." All expert witnesses who testified in these proceedings agreed that the evidence accompanying the BA-52 clearly indicated M.H. was a danger to himself and should not have been released. Petitioner's and Respondent's experts disagreed only in whether Respondent's actions were in accordance with acceptable medical standards if he was told only what was contained in the narrative prepared by Millrose in exhibit 5. In any case Respondent prepared no records other than those prepared by Millrose to justify overturning the recommendation for further evaluation on the BA-52. Those records are inadequate to justify M.H.'s release especially without face-to-face consultation with a psychiatrist or other health professional qualified to make such a determination. The policy of the Hillsborough Community Health Center at this time was that during hours no psychiatrist was on duty at the crisis center patients who were Baker Acted were interviewed by one of the crisis counsellors who made an assessment based upon the BA-52 and the interview, then called the psychiatrist on call to relay the information obtained from the BA-52 and the interview to the doctor who had the final authority to determine whether the patient should be released forthwith or held until face-to-face interview with a qualified health professional was completed. Once a law enforcement officer has presented an involuntary patient to the crisis center for evaluation, it is incumbent on the psychiatrist on duty (on call) to inquire into the facts giving rise to the reasons for the law enforcement officer to conclude the patient is a danger to himself or to others, and to fully inquire into the facts upon which the crisis counsellor concludes to the contrary. Regardless of what Respondent was told by Millrose it is clear that he did not make such inquiries. In failing to fully inquire into the facts upon which Millrose concluded M.H. was not a danger to himself, Respondent delegated the determination that was his alone to make to Millrose and thereby failed to practice medicine with the requisite standard of care, skill and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. In failing to document any facts upon which he determined that M.H. was not a danger to himself despite the information contained in the BA-52 and in failing to document reasons for concluded that M.H. suffered from an antisocial personality disorder, Respondent failed to keep medical records justifying the actions taken. Despite the practice at the crisis center to the contrary, Rule 10E- 5.47, Florida Administrative Code, which was in effect on October 2, 1986 and Section 493.463, Florida Statutes (1985), provides that a person for whom an involuntary examination has been initiated by filing a BA-52 shall not be released by the receiving facility or its contractor without the documented approval of a person who is qualified under the provisions of this chapter to initiate an involuntary examination, i.e., a physician, psychologist licensed pursuant to Chapter 490, psychiatric nurse or clinical worker. The practice of releasing involuntary Baker Acted clients after a telephone report to the psychiatrist conflicts with the intent of this section of the statutes. However, it was the practice at the Hillsborough County Mental Health Center for intake counsellors to evaluate patients brought in during evening hours when no psychiatrist was on duty, telephone the on-call psychiatrist and apprise him of the information contained in the BA-52 and of the counsellor's evaluation of the patient, at which time the psychiatrist would order the patient held for further evaluation or released. Respondent's expert witnesses, who opined that Respondent did not fail to practice medicine with the requisite standards of care, all based their opinions on hypothetical questions which assumed that Respondent was not made aware of the suicide notes; was not aware of the epitaph found with the suicide notes; was not aware that M.H. had previously received mental health counselling when his girlfriend committed suicide a few years ago; was not aware that M.H. had not eaten or bathed for a week; was not aware patient had stated death was the answer; and was not aware M.H. was in possession of a article entitled "Near Death Experiences", when apprehended; but was told that M.H.'s main concern was having little money, however he had been offered a job and possibly a place to stay by the driver of the wrecker who had picked up his truck; that M.H. appeared relieved when told he could find a room for the night at the Salvation Army; that M.H. did not appear to be a danger to himself, was in good spirits, his mental status was within normal limits, he was cooperative, and his memory and judgment was intact; and that M.H. denied any present intent to commit suicide. In answer to the question regarding his general recollection of the contents of the telephone call between Millrose and Respondent on October 2, 1986, Respondent testified that he was told that the BA-52 stated M.H. had been trying to hook up a hose to his exhaust, that patient had expressed feeling suicidal; that after being picked up by the police he (M.H.) was with the driver of the wrecker who offered him a job and possibly a place to stay; that the patient appeared properly attired and neat in appearance; that he did not present any psychiatric symptoms; that patient had money for a overnight stay in a motel and was now looking forward to obtaining a job; and also that patient had a supportive girlfriend in the environment. According to Respondent, Millrose concluded M.H. should be given a chance to go ahead, and made this recommendation to Respondent following a diagnosis of adjustment disorder with depressed moods. In this regard it is noted that M.H.'s girlfriend was in South Dakota and could hardly provide support. No explanation was offered for the failure of Millrose or Respondent to resolve the conflict in the statement M.H. gave to Millrose that he spent last night in a motel and M.H.'s statement to the deputy sheriff that he hadn't eaten or bathed in one week. All expert witnesses concurred that the narrative contained in the BA- 52 supporting the officer's conclusions that M.H. was a danger to himself, fully supported this conclusion and described an individual with a very high suicide potential, i.e., a highly lethal patient. Millrose acknowledged that he would have considered the suicide notes significant information to pass on to the psychiatrist before the patient was ordered released, but Respondent denies ever being made aware of the suicide notes or of any of the information contained in the BA-52 narrative indicating the lethality of M.H.'s actions prior to and after he was picked up by the deputy sheriff and brought to the crisis center. As noted above, Respondent's testimony in this regard is not credible.
Recommendation It is recommended that Hussain be assessed an administrative fine of $10,000.00 and placed on probation for two years under such terms and conditions as the Board of Medicine deems appropriate. RECOMMENDED this 11th day of March, 1991, in Tallahassee, Leon County, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of March, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-4699 Proposed findings submitted by Petitioner are accepted except for: 10. The portion of the first sentence "including all of the above relevant observations which supported his opinion." The BA-52 narrative did not contain all of the facts referred to in proposed findings 8. See HO #10. Although Deputy Burton briefed the "intake person" no evidence was presented that she passed any such additional information on to Millrose. 14. No evidence was presented that a Suicide Rating Scale was available to the crisis counsellors at the CSU. Certainly no such scale was used in this case. 37. M.H. was released from the CSU following a telephone call to Respondent who authorized the release of M.H. Proposed findings submitted by Respondent are accepted except for: 6. Rejected in part. No credible evidence was presented regarding the scope of the annual survey of the CSU by HRS personnel. 29. Rejected in part. Millrose testified that while he does not recall specific details of his interview with M.H. some 5 years ago, he would normally read all of the information presented with the BA-52. 33. Rejected in part. Millrose did not recall the specific detail that the call regarding M.H. was combined with calls about other clients. Rejected as fact. Accepted as testimony of Respondent. Rejected insofar as inconsistent with HO #12. The summary prepared by Millrose was substantially relayed to Respondent during this telephone call. Rejected. Second sentence rejected. 41. Accepted only insofar as Millrose was convinced M.H. did not meet the criteria for involuntary commitment. Rejected that this was common practice. Accepted that this practice was prevalent. Rejected. Rejected. 47. Second sentence rejected. The requirement for record keeping is that the records be adequate to justify the treatment given. COPIES FURNISHED: Mary B. Radkins, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Rodney W. Morgan, Esquire Galloway Executive Center, Suite 110 3333 Henderson Boulevard Tampa, Florida 33609 Dorothy Faircloth, Executive Director Florida Board of Medicine Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0750 Jack McRay, General Counsel Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issues for determination in this case are whether Respondent's license to practice medicine should be revoked or otherwise disciplined for the reasons set forth in the Administrative Complaint, specifically for: 1) Respondent's failure to meet the acceptable standard of care for psychiatry by failing to perform a mental status examination on patient G.K. at the time of the patient’s admission to Medfield Hospital in February 1996; Respondent's failure to place patient G.K. under continual close observation and/or in a room where suicide would have been more difficult or impossible; and 3) Respondent's failure to order consultations and staff conferences regarding patient G.K.’s condition during his admission at Medfield Hospital in February 1996.
Findings Of Fact Petitioner, Department of Health, is the state agency vested with the statutory authority to enforce the disciplinary standards for the practice of medicine under Chapters 455 and 458, Florida Statutes. Respondent, Carlos E. Berry, M.D., is, and at all material times was, a physician licensed to practice medicine in Florida, having been issued license no. ME 0056010. Respondent has active staff privileges at Charter Medfield Hospital ("Medfield") and at Sun Coast Hospital, both in Largo, Florida. Respondent is board- eligible in adult psychiatry. Patient G.K. was a thirty-two year-old male with a long history of mental illness diagnosed as bipolar disorder, commonly called manic depression. G.K. related to staff at Medfield that he had first attempted suicide by hanging himself when he was in the fourth grade. G.K. stated that he had been depressed with suicidal thoughts ever since the incident in the fourth grade. G.K. had been hospitalized numerous times through the subsequent years, and had made several suicide gestures involving overdoses of prescription drugs. G.K. had longstanding problems with alcohol and drug abuse. G.K. had been Dr. Berry’s patient intermittently since 1990. G.K. initially came to Dr. Berry on an outpatient basis seeking help with managing his medications. Dr. Berry testified that he saw G.K. from seven to ten times over the next two and a half-year period, all on an outpatient basis. Dr. Berry testified that G.K. was doing relatively well when they met, with some ups and downs. G.K. then stopped regularly seeing Dr. Berry, but would call him every few months to gauge Dr. Berry’s willingness to prescribe medication, which Dr. Berry refused to do without seeing the patient. G.K. would then come to see Dr. Berry, get a prescription, then "disappear" for another few months. Dr. Berry testified that this remained G.K.’s pattern until 1994. On May 13, 1994, Dr. Berry admitted G.K. to Medfield. G.K. had been initially admitted to an acute care hospital for an overdose of prescription medicine and alcohol in what he later admitted to Dr. Berry was a suicide attempt. G.K. was cleared medically, then admitted under the Baker Act to Medfield. Dr. Berry performed an initial examination of G.K. within 24 hours of G.K.’s admission and wrote an initial report on May 14, 1994. He diagnosed G.K. with bipolar disorder, and noted that G.K. was depressed and unable to state that he did not want to die, though he was not psychotic and not actively suicidal at the time of the interview. Upon admission, G.K. was placed on "Q15" suicide precautions, meaning that hospital staff would check him every fifteen minutes. Within six hours, G.K. converted his admission to voluntary status and the suicide precautions were discontinued. The initial plan was to assess G.K. for suicidality, reassess his medications, and encourage him to attend and participate in all available modes of group therapy. G.K. was in fact seen by mental health staff and other allied therapists for individual and group therapy, as well as having individual sessions with Dr. Berry. After 48 hours, G.K. showed marked improvement, being less dysphoric and denying suicidal ideations. On May 15, 1994, G.K. was discharged from Medfield after having agreed to follow up with individual therapy and medication management under the care of another psychiatrist. On August 23, 1994, G.K. was admitted to Pinellas Emergency Mental Health Services, Inc. ("PEMHS"), another inpatient psychiatric facility. The treating psychiatrist’s notes indicate that this was a voluntary admission, though other portions of the medical record state that G.K. was admitted under the Baker Act. On admission, G.K. complained of depression and suicidal thoughts, and stated that he had discontinued his medications because they were ineffective. The treating psychiatrist diagnosed bipolar disorder with depression. The psychiatrist noted that G.K.’s affect was "angry and sarcastic," and his mood was dysphoric. G.K. denied hallucinations and did not appear delusional or thought disordered. He admitted to increasing irritability and aggressiveness toward other people over the past year, which had interfered with his employment. He stated that he thought about suicide nearly all the time, but that such feelings had been present for at least twenty years. He admitted to drinking at least a six-pack of beer every day and to smoking marijuana on a daily basis for a period of 15 years. The PEMHS records do not indicate whether G.K. was placed on suicide precautions during his stay, though the physician’s notes indicate G.K. was still "ambivalent" about suicide as late as August 26, 1994. The PEMHS records indicate that G.K. attended group therapy sessions without participating. Both staff and the treating physician noted G.K.’s sarcastic attitude toward his peers and the facility in general. G.K. was discharged from PEMHS on August 30, 1994. The treating physician noted on that date that G.K. denied suicidal ideation, he had shown some improvement during his stay. The physician recommended outpatient treatment and support group therapy along with medication. The events at issue in this proceeding commenced on February 20, 1996, when G.K. was voluntarily admitted to Medfield, four days after overdosing on a prescription medication, Zoloft, while intoxicated with alcohol. G.K.’s admission, while voluntary, was accomplished by way of prodding from his parents, who had become greatly alarmed at his worsening mental state. P.K., G.K.’s father, testified that he convinced G.K. to go to Medfield, and that he drove G.K. to the hospital on the morning of February 20. P.K. further testified that his son was worried because he had no insurance and knew his parents would have to foot the bill for his stay at Medfield. An administrator at Medfield raised the issue of payment method with P.K. while G.K. was present, causing G.K. to flee the facility on foot. The Medfield administrator and P.K. had to go outside and talk G.K. into returning by assuring him that P.K. would pay for only a three- day stay, then they would decide what to do next. On the afternoon of February 20, Judy McDermott performed an initial needs assessment on G.K. Ms. McDermott was a psychiatric nurse who had worked with Respondent at Medfield since 1991. Dr. Berry testified that he was very familiar with Ms. McDermott’s work and trusted her judgment. Ms. McDermott found that G.K. was depressed and anxious. He told her, "I think about suicide all the time." G.K. admitted that four days previous he had overdosed on pills and alcohol, then vomited. G.K. told Ms. McDermott that he had erratic sleep and appetite patterns, and had recently locked himself in his apartment for two weeks in an attempt to quit smoking marijuana. He also admitted that he had been noncompliant in taking his prescription medications. G.K. told Ms. McDermott about his two prior inpatient admissions, including the 1994 Medfield admission when he was treated by Dr. Berry. After performing her assessment, Ms. McDermott called Dr. Berry on the telephone and discussed the case with him. She told Dr. Berry about G.K.’s recent overdose, the circumstances of his admission, including his brief flight, and his unhappiness over being in the hospital. G.K. had told Ms. McDermott that he was unwilling to admit himself unless Dr. Berry was the attending physician. As a result of this briefing from Ms. McDermott, Dr. Berry recommended inpatient treatment for mood stabilization and medication management under his supervision. Dr. Berry testified that he knew his schedule would not permit him to see G.K. until February 21, but that he went ahead and admitted G.K. in the knowledge that Leslie Webster, an Advanced Registered Nurse Practitioner (ARNP), would be available to perform a psychiatric evaluation and mental status exam within 24 hours of G.K.’s admission. Dr. Berry issued orders to admit G.K. voluntarily to the Adult General Psychiatric unit (AGC) and place him under Q15 suicide and unpredictable behavior precautions. "Q15" meant that the patient would be observed and checked every fifteen minutes. As discussed below, Q15 was the least restrictive of three levels of suicide precautions used at Medfield, but still involved "constant observation" of the patient. Medfield had two psychiatric units: AGC, for higher functioning patients able to participate in their own therapy, and the Crisis Stabilization Unit (CSU), for patients admitted under the Baker Act and/or acutely psychotic or very demented. The choice of unit was not based on how suicidal the patient was, but on how well the patient could function, i.e., the patient’s ability to participate, to talk, to interact, and to understand what was going on around him. G.K. was properly placed in the AGC unit, as he was voluntarily admitted, alert, and oriented to time, place and person. On the afternoon of February 20, 1996, G.K. was seen by Cynthia Young, a registered nurse who was Medfield’s Director of Clinical Services. After reviewing Ms. McDermott’s needs assessment, Ms. Young performed the nursing assessment on G.K. She noted that G.K. appeared tense, that his mood was depressed, irritable and anxious, that he made poor eye contact, that he spoke in limited, unfinished sentences, and that he was withdrawn and defensive. Ms. Young noted in the assessment that G.K. "wants to kill self." In a progress note written later that afternoon, she wrote that G.K. was "thinking about self harm all the time." She testified that she considered such statement to be mere suicidal ideation, because he did not articulate a plan for completing the suicide. Ms. Young testified that the process for putting a patient on line-of-sight or one-to-one observation was triggered when the patient verbalized a definite plan for suicide, or was so confused they constituted a danger to themselves or others. A "definite plan" is a plan that could be accomplished within the confines of the psychiatric unit. She testified that a patient who has voluntarily admitted himself, who has simply expressed suicidal ideation, and who is not psychotic would not generally be placed on line-of-sight or one-to-one precautions. Ms. Young further testified that if she as a nurse believed a patient was a danger to himself, she was empowered to act immediately to place the patient in a safe environment, such as one-to-one observation. After ensuring the patient’s safety, the nurse would then call the physician, who would place a time-limited order on the patient restriction. This procedure was confirmed by James Morello, who was the nurse manager of the adult program at Medfield. Ms. Young testified that she saw no need to take such action in regards to G.K., and that she agreed with Dr. Berry’s order for Q15 suicide precautions. On the morning of February 21, 1996, G.K. was seen by Jenny Schrader, a case manager and discharge planner at Medfield. Ms. Schrader’s job was to arrange after care for patients once they were discharged from Medfield. Ms. Schrader recalled G.K. as angry and a little hostile, and that G.K. had said to her, "I’m pissed because I’m still alive." She did not consider this to be a suicidal statement, in the context of G.K.’s general anger and because his voluntary admission indicated he was seeking help. She testified that it was common for patients to make such statements, and further that G.K. was a sarcastic individual and that she took his statement in that light. Ms. Schrader testified that had she believed G.K. was a serious suicide threat, she would have relayed her concerns to the nursing staff, which in turn had authority immediately to institute greater suicide precautions. Medfield had three levels of suicide precautions: Q15, which required checks on the patient every 15 minutes; line-of- sight, meaning that the patient must be kept in sight of a staff person at all times, including when the patient goes to the bathroom; and one-to-one, meaning that the patient is under constant, arms' length observation by an assigned staff person, even in the bathroom. Medfield’s "Precautions Flow Sheet," the document recording the maintenance of suicide precautions, characterized the Q15 level as requiring "constant observation" documented every 15 minutes. Suicidal ideation, i.e., the expression of a wish to be dead or a desire to kill oneself, is not alone considered grounds for placing a patient in the more restrictive line-of-sight or one- to-one precautions. Ms. Schrader estimated that 65 to 70 percent of the patients admitted to Medfield were there because of some kind of suicidal ideation or attempt. James Morello, who was nurse manager of the adult psychiatric program at Medfield, estimated the number of admissions for suicidal ideation at 70 to 90 percent. Dr. Daniel Sprehe, an expert in forensic psychiatry, estimated that 80 percent of the patients he admits express suicidal ideation. Dr. Berry testified that 50 to 60 percent of the patients he admits have bipolar or severe depression with suicidal ideation. Petitioner’s expert, Dr. Martin Rosenthal, testified that it would be practically impossible for Medfield to place 60 percent or more of its patients on line-of-sight or one-to-one observation. An ARNP is a professional nurse who is certified in advanced or specialized nursing practice, and is authorized by rule and statute to perform medical diagnosis and treatment pursuant to a written protocol between the ARNP and a supervising physician. Sections 464.003(3)(c) and 464.012(3), Florida Statutes; Rule 64B9- 4.010, Florida Administrative Code. A written protocol between Dr. Berry and Leslie Webster, an ARNP specializing in psychiatric care, authorized Ms. Webster to perform initial psychiatric evaluations and ongoing assessments of Dr. Berry’s patients at Medfield, under the general supervision of Dr. Berry. The Rules and Regulations of Medfield provided that patients were required to undergo a mental status examination and that a complete history and psychiatric examination must be written within 24 hours of admission. The Rules and Regulations further provided that the required psychiatric evaluation could be performed by an ARNP such as Ms. Webster. On the morning of February 21, 1996, less than 24 hours after G.K.’s admission, Ms. Webster performed a comprehensive mental status evaluation of G.K. She noted that he was somewhat guarded in his responses and made no eye contact. His speech was clear, logical and organized. His mood was sad, depressed, and despondent with a flat affect. He complained of constant racing thoughts and an inability to sleep. He was alert and oriented to time, place and person. His thoughts revolved around difficulty in stabilizing his mood disorder and the loss of "visions" that used to guide him. He denied auditory or visual hallucinations. His memory was intact. Ms. Webster’s report stated that G.K. admitted to "suicidal thoughts with a plan but states he does not want to be in pain." Her handwritten notes indicated that the referenced "plan" involved buying a gun and killing himself. Ms. Webster concluded that G.K. had poor insight and judgment, and questionable impulse control. Ms. Webster discussed her findings with Dr. Berry via telephone. Dr. Berry signed off on the treatment plan, which included maintaining Q15 suicide precautions and unpredictable behavior precautions, encouragement to participate in group, unit and community activities, and medication management using Klonopin and Ativan. On the afternoon of February 21, 1996, Dr. Berry came to Medfield. After seeing to some administrative matters, he reviewed G.K.’s entire file. He read the various notes relating to G.K.’s suicidal expressions, but testified that these did not alarm him. Dr. Berry testified that G.K. had often talked about not wanting to live and had often expressed suicidal thoughts. Dr. Berry testified that G.K. had "never, ever had a lethal or near lethal or potentially lethal suicide attempt." Dr. Berry construed some of the notations as being sarcastic, which was typical of G.K. even when he was doing well. Dr. Berry believed that G.K. was in a safe environment, and that the Q15 precautions were sufficient. Dr. Berry reviewed the mental status exam performed by Ms. Webster, determined that she had performed a proper examination of G.K., and signed off on her report. Dr. Berry went onto the AGC unit specifically to see G.K. A staff person told him that G.K. was not available because he was outside playing volleyball. The staff person told Dr. Berry that G.K. was depressed but "doing okay." Dr. Berry testified that upon hearing this, he thought, "Maybe he ain’t doing that bad. I’d rather he be outside playing volleyball," particularly since G.K. had already been seen by Ms. Webster. Dr. Berry thus determined there was no pressing need to see G.K. on the afternoon of February 21, 1996. Mr. Morello confirmed discussions with Dr. Berry concerning G.K. on February 21, 1996, though he was unclear whether the conversation was in person or by telephone. Dr. Berry told Mr. Morello that G.K.’s admission would probably be for three to four days, which seemed routine to Mr. Morello for the situation presented by G.K.: the patient would be stabilized, placed on medications, discharged and then followed-up in outpatient therapy. The nursing progress notes for February 21 describe G.K. as quiet, presenting a flat and sad affect, and attending unit activities. During a goals/assessment group, G.K. stated, "I feel depressed; I’ve been suicidal for the past fifteen years," and further stated that he hates the way the world is. A note entered at 9:00 p.m. records that G.K. had been observed on the unit during the entire shift, attending all unit activities. G.K. was quiet and nonverbal during most activities. He responded to a question about his visit with his doctor by saying, "He didn’t give me anything to kill myself with." Mr. Morello described G.K.’s behavior on February 21 as exhibiting the typical ups and downs of a patient in a psychiatric hospital. As Dr. Berry testified that he did not see G.K. on February 21, it is found that the "doctor" referenced in the 9:00 p.m. note was Dr. Mehul Patel, who performed a physical examination on G.K. on that date. The Precautions Flow Sheet, which records the patient’s activities in accordance with the Q15 suicide precautions, notes that during the day and evening of February 21, G.K. participated in group activities, interacted with his peers, engaged in physical activity, took his meals, and sat quietly in his room. Notes from group therapy indicate that G.K. attended three group sessions on February 21, 1996. At a feelings group, he was noted to be quietly attentive with a flat affect and guarded about his thoughts and feelings. At the exercise and socialization group, i.e., the volleyball game, he was noted as being cooperative, and quiet, having good volleyball skills, having a high participation level, and being attentive to the rules and score of the game. At a psychoeducational group, he was reported as participating in a group calmness exercise, and described as having a flat affect and being withdrawn. The nursing progress notes indicate that G.K. remained in bed throughout the night of February 21 and into the morning of February 22. The Q15 suicide precautions remained in effect throughout the day and night of February 21, though the notes indicate no signs or symptoms of suicidal ideation beyond the 9:00 p.m. note discussed above. On the morning of February 22, Dr. Berry arrived at Medfield between 6:30 and 7:00 a.m. He asked the nursing staff if anything happened during the night that he should know about. Along with two medical students who were accompanying him in connection with his position as a clinical instructor at the University of South Florida, Dr. Berry attended at least a portion of the treatment team meeting regarding G.K. The treatment team for each patient generally comprised a social worker, the utilization review insurance manager, the mental health therapist, and the nursing director. The meetings were held early each morning. Physicians would come in and out of the meetings sporadically, discuss their own patients, then leave. Dr. Berry typically attended two or three such meetings each week, which was normal for physicians at Medfield. The physicians were required to attend treatment team meetings only once a week. After getting information from the nursing staff about his patients, Dr. Berry began making rounds in the company of the two medical students. They met with G.K. at approximately 8:00 a.m. Dr. Berry testified that he had already decided to try something other than traditional medications with G.K. and intended to discuss that with him. Dr. Berry asked G.K. how he was doing, whether he was still feeling suicidal, and whether he was having hallucinations. G.K. told Dr. Berry that he was feeling safer in the hospital, and even joked about how long it had been since he had seen Dr. Berry. G.K. denied being suicidal and said he was not having hallucinations. He made it clear he was unhappy about being in a locked situation and pressed Dr. Berry to tell him when he would be allowed to leave the hospital. Dr. Berry replied that he wasn’t sure, but that G.K. would likely stay through the weekend, another three days. Dr. Berry testified that his estimate of G.K.’s stay was derived from his plan to try G.K. on a new medication, Clozaril. Dr. Berry testified that it takes a few days for a patient to acclimate to Clozaril, and he wanted to see how G.K. was doing with the drug and to see that G.K. was doing better before he released him. He discussed the risks and benefits of Clozaril with G.K., including the need to draw his blood on a weekly basis to monitor his white blood cell count. G.K. agreed to the plan of treatment. Based upon G.K.’s statements that he was feeling safer, his joking with Dr. Berry, his agreement to try the new medication, and his inquiries about discharge planning, Dr. Berry concluded that G.K. was not suicidal at the time he saw him. After his meeting with G.K., Dr. Berry entered an order to discontinue the Q15 suicide precautions. The staff continued to check on G.K. every 15 minutes because Dr. Berry’s order for unpredictable behavior precautions was still in effect. In addition to the factors cited above, Dr. Berry testified that a reason for discontinuing the suicide precautions was the need to make G.K. feel he was making progress. In light of G.K.’s bipolar disorder and his aversion to the inpatient hospital setting, Dr. Berry believed it important to give G.K. signals that he was improving and progressing toward release. Mr. Morello recalled seeing G.K. shortly after his session with Dr. Berry. Mr. Morello released G.K. from the unit to go to breakfast, and testified that G.K. seemed to be doing better, was brighter, more animated, and talking more freely that morning. After breakfast, G.K. attended a 9:00 a.m. goals group meeting run by Dennis Cline, a psychiatric technician. Mr. Cline did not testify at the hearing. Mr. Morello, the nurse manager of the unit, did not attend the meeting but related a hearsay description of what happened. Mr. Morello testified that G.K. was discussing his situation when another patient told him he should "just end his life." G.K. left the group session shortly before it ended. Dr. Berry testified that another physician later told him that one of his patients had related a similar story. G.K. apparently talked at length about his suicidal ideations. The other patients were tired. One patient in particular challenged G.K. vehemently, and commented that G.K. should stop talking about killing himself and just go do it. At this time, G.K. apparently became angry and left the group. These hearsay accounts cannot form the basis of a finding as to exactly what happened in the group meeting. It is found, however, that something occurred in the group session that caused G.K. to leave the group shortly before the session ended. It is further found that no one on the staff at Medfield informed Dr. Berry of this incident until later in the day, after G.K. committed suicide. Mr. Cline, the psychiatric technician in charge of the group session, continued to check G.K. every 15 minutes as required by the unpredictable behavior precautions. The notations in the Precautions Flow Sheet indicate that G.K. was in his bed at 10:00 a.m. and at 10:15 a.m. At 10:30 a.m., Mr. Cline approached Mr. Morello and asked him if he had seen G.K. Mr. Morello said he had not. Mr. Cline went to look for G.K. in the unit, then called for Mr. Morello to help because he couldn’t find G.K. Mr. Morello testified that the door to G.K.’s room was closed. They knocked and entered, but G.K. was not in the room. They saw that the bathroom door was closed. They knocked, then entered. They found G.K. hanging by a luggage strap from an air conditioning vent. Despite efforts by Medfield staff and Emergency Medical Services, G.K. was pronounced dead from asphyxiation at 10:50 a.m. Mr. Morello testified that the luggage strap used by G.K. apparently came from a bag brought to him by his mother on the previous evening. This comports with the testimony of F.K., who stated that she brought clean clothes for her son in what she variously called a "duffel bag," an "overnight bag," or a "gym bag," on the evening of February 21, 1996. She testified that she left the bag at the nurses’ station. The duty nurse apparently gave the bag to G.K. No documents or testimony conclusively established Medfield’s policy or protocol regarding what was regarded "contraband" for patients on Q15 suicide and/or unpredictable behavior precautions. Dr. David Cheshire, an expert in psychiatry with more than 30 years in private practice admitting patients to numerous psychiatric facilities, testified that Dr. Berry was entitled to presume that his patient was in a safe place, and that included presuming that a patient on suicide precautions and/or unpredictable behavior precautions would not be given something with which he could hang himself. Dr. Cheshire testified that every hospital in which he practices has a contraband list, and he assumed Medfield would have such a list, though it was not produced for the hearing. Dr. Cheshire stated in his written opinion that "[i]t would... be beyond reason to assume that a long strap, capable of being fashioned into a hanging noose, would not be considered a contraband item." Dr. Cheshire’s expert opinion accords with common sense on this issue. Staff should not have provided the bag to G.K. on the evening of February 21, 1996, when G.K. was still on Q15 suicide precautions and on unpredictable behavior precautions. Nothing in the record indicates that Dr. Berry knew that G.K. had been given this bag on the evening of February 21. None of the professional staff involved in the treatment and close observation of G.K. throughout his stay at Medfield in 1996 believed that the Q15 precautions ordered by Dr. Berry were insufficient. None of the professional staff believed that G.K. was actively suicidal during his 1996 stay at Medfield. The Administrative Complaint alleges that Dr. Berry failed to practice medicine with an acceptable level of care, skill, and treatment recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. The Administrative Complaint cites three failures on the part of Dr. Berry: failure to perform a mental status evaluation on G.K. at the time of his admission; failure to order consultations and staff conferencing; and failure to place G.K. under "continual close observation." Three experts testified at the final hearing, in addition to Dr. Berry, who was also qualified as an expert in psychiatry. Petitioner offered the testimony of Dr. Martin Rosenthal, who currently works at the Broward Correctional Institution, a female prison with an active, inpatient acute treatment psychiatric unit. Dr. Rosenthal has not had active staff privileges at a private psychiatric hospital since 1994, but is board-certified and qualified to offer expert testimony on psychiatric treatment issues. Respondent offered the testimony of Dr. David Cheshire, a Life Fellow of the American Psychiatric Association and board certified by the American Board of Quality Assurance and Utilization Review. Dr. Cheshire has been Chief of Psychiatry at Memorial Medical Center in Jacksonville, and has had continuous admitting privileges for thirty years at a number of hospitals in that city, currently including Baptist Hospital and St. Johns River Hospital, both Baker Act facilities. He has also served as an expert on behalf of the Board of Medicine in the past. Respondent also offered the testimony of Dr. Daniel Sprehe, board certified in psychiatry and forensic psychiatry. Dr. Sprehe has practiced psychiatry for 32 years in the Tampa area, and has active staff privileges at Tampa General Hospital, St. Joseph’s Hospital, Memorial Hospital, and University of South Florida Psychiatric Center. Dr. Cheshire, Dr. Sprehe, and Dr. Rosenthal all opined that it is proper to have an ARNP perform the mental status evaluation of a patient, provided the supervising physician reviews, checks, and signs the evaluation within 24 hours of its performance. Thus, the Administrative Complaint accurately recites that Dr. Berry did not personally perform the mental status examination upon G.K.’s admission, but fails to state a violation of the standard of care. Dr. Berry properly used an ARNP to perform the evaluation within 24 hours of G.K.’s admission, and Dr. Berry timely reviewed and approved the ARNP’s evaluation, within the standard of care and pursuant to the applicable statute and rule cited above. In his written opinion, Dr. Rosenthal stated: "In view of the seriousness and continuity of G.K.’s depression and preoccupation about suicide, I do think consultation and conjoint staff conferencing would have been in order." At the final hearing, Dr. Rosenthal testified that the written record "well documented" the appropriate information, and modified his written opinion to the extent of agreeing that if Dr. Berry spoke on multiple occasions with the staff people, the psychiatric technicians and nurses involved in G.K.’s care, and if the information in the written record was fully conveyed to Dr. Berry during these conversations, then it could be concluded that "consultation and conjoint staff conferencing" had taken place. Dr. Cheshire testified that he had no concerns that Dr. Berry failed to carry out appropriate consultations and staff conferencing. Dr. Berry in fact spoke with the staff people, psychiatric technicians and nurses involved in the care of G.K., and was well aware of the contents of the written records. Petitioner failed to establish that Dr. Berry should have done more regarding consultation and conferencing with staff. The most serious allegation, and the one producing serious disagreement among the experts, was that Dr. Berry failed to place G.K. under "continual close observation." It is noted that if the allegation in the Administrative Complaint were read literally, then it is at odds with the facts established at the hearing. The Q15 suicide precautions and unpredictable behavior precautions ordered by Dr. Berry did in fact place G.K. under "continual close observation." G.K. was placed on a locked, secure unit, presumably isolated from any means of inflicting self-harm, and was subject to recorded checks every fifteen minutes. More accurately stated, Petitioner’s allegation is that the Q15 suicide precautions and unpredictable behavior precautions ordered by Dr. Berry were insufficient, and that G.K. should have been placed on line-of-sight or one-to-one precautions. In his written opinion, Dr. Rosenthal stated that G.K. should have been under "continual close observation and/or in a 'suicide-proof room.’" This opinion was based on "the seriousness and persistence of his suicidal thinking." Dr. Rosenthal wrote that the "brief contact" between Dr. Berry and G.K. on the morning of February 22, 1996, made Dr. Berry "too quick to feel secure" in reducing the suicide precautions. At the final hearing, Dr. Rosenthal elaborated at length on his written opinion. At the outset, he conceded that it is not the standard of care to have a "suicide-proof" room in a hospital, and denied any wish to make an issue of the failure to utilize such a room. On this point, Dr. Cheshire wrote that in thirty years of practice, he had never seen such a room in a hospital. Dr. Rosenthal discussed the various statements made by G.K. as recorded by Medfield staff, and concluded that the Q15 suicide precautions ordered by Dr. Berry were insufficient and below the standard of care. His rationale was as follows: This man’s suicidal thinking was so consistently expressed through a series of interdisciplinary note entries, from the night he came into the hospital, the next day, into the second morning of his being here with the date of his death, that he had severe depression and such repetitive reference in terms of wanting to die, that I would see this man as obsessing about death and the wish. This being the case, to observe him every 15 minutes was not sufficient. To look in on him every 15 minutes, as such, to make sure he was okay was not sufficient because between 15 minute checks, there was approximately a 14 minute interval where he was unobserved, this man who was obsessing about suicide and death. * * * I realize that if he’s in a group session, for example, he’s presumably in the presence of somebody for at least 15 minutes for that group session, for example. But throughout a 24-hour day, I would think that there, obviously, would be times when he was not involved in some activity and, thus, under observation because of the activity. When he’s sleeping at night, or supposed to be sleeping at night, every 15 minutes is not adequate.... I grant that he didn’t kill himself during the night, but I’m talking about the principle here, the severity of suicidal risk. Severe. Most severe. Dr. Rosenthal testified that he would have placed G.K. under one-to-one suicide precautions, or at least in the line of sight of a staff person at all times. He also offered the opinion that electric shock therapy should have at least been considered, given G.K.’s history of failure to respond to a plethora of medications. Dr. Rosenthal acknowledged the requirement of Section 394.459(2)(b), Florida Statutes, that a psychiatric patient receive "the least restrictive appropriate available treatment," but testified that what is "appropriate" depends on the condition of the individual patient, and that this was a situation in which it would have been appropriate "to step in protectively to impose a highly restricted situation." Dr. Rosenthal agreed with the general distinction discussed above between suicidal ideation and a definite or active plan to commit suicide. However, he testified that a patient’s stating a "plan" that is not immediately workable may still call for heightened precautions in light of the entire case presented by that patient. For example, a patient may tell the nurse or therapist that he keeps thinking about buying a gun and shooting himself. Plainly, he cannot accomplish this "plan" in the hospital. Dr. Rosenthal testified that these statements must nevertheless be taken seriously as they contribute to the "flavor" of the patient’s obsessiveness about death and wanting to die. In contrast, Dr. Cheshire concluded: From my review of the medical record it appears that Dr. Carlos Berry practiced within acceptable standard of care guidelines and conducted his treatment of this patient in a manner that would be considered prudent by any similar physician under similar circumstances and conditions. Dr. Berry had a relationship with this patient of several year’s [sic] duration and appears to have made his decisions regarding the patient’s care with a clear understanding of the patient’s history and psychiatric condition. I could find no error in judgment or action on the part of Dr. Carlos Berry that in any way contributed to the asphyxiation death by hanging of patient G.K. Dr. Cheshire concluded that, if fault were to be found with anyone other than G.K. himself, that fault must be placed on the hospital for, among other things, failing to provide a safe and secure environment for the treatment of the patient. Dr. Cheshire specifically mentioned the failure of hospital staff to follow standard contraband procedures and the assignment of hospital personnel simultaneously to provide group therapeutic services and to observe at risk patients as contributing causes in the suicide of G.K. Dr. Cheshire strenuously disagreed with Dr. Rosenthal on the question of G.K.’s statements to Medfield staff and the conclusions to be drawn therefrom. Dr. Cheshire noted that the only suicide plan ever mentioned by G.K. during his stay was that he would buy a gun and shoot himself, that he had been admitted after taking an overdose of pills and alcohol, and that these routes for suicide were precluded by his admission to a locked psychiatric unit. Dr. Cheshire noted that suicidal statements such as those made by G.K. are extremely common: "[P]eople say, 'I’m going to kill myself. I wish I were dead. I can’t stand this any longer. You kids are driving me crazy. You’ll be sorry when I’m gone,’ and all of these things. People think about death. But that doesn’t mean they’re going to do it." As found above, it would be practically impossible to institute one-to-one suicide precautions for every patient who merely makes such statements without giving some overt indication of a present intent to carry out the suicide. In Dr. Cheshire’s opinion, G.K. could not be considered a person with an active suicide plan. Rather, G.K. was a person whose suicidal ideation began in the fourth grade and continued up until he met with Dr. Berry on February 22, 1996. Dr. Berry was familiar with G.K.’s sarcastic method of discourse, his perpetual thoughts of suicide, the nonlethal gestures G.K. had made over the years, and the course of G.K.'s inpatient admission in 1994 under his care, and Dr. Berry properly placed G.K.’s statements in that context. Dr. Cheshire noted that G.K. "wasn’t planning suicide whenever he talked with Dr. Berry, unless he was lying to Dr. Berry." At the hearing, Dr. Cheshire testified that a patient is placed in one-to-one precautions when the patient is out of control, unable to control his impulses such that he is dangerous to himself or other people. He testified that a patient such as G.K., who in his opinion was severely depressed but had no suicide plan, was not an appropriate candidate for one-to-one precautions. Dr. Cheshire did not minimize the severity of G.K.’s condition. He agreed that G.K. was very disturbed, very depressed, with poor insight and minimal judgment, adding that in his opinion G.K. had poor insight and minimal judgment for over twenty years: "He’s never had good insight or good judgment, and he’s been sick all his life." Dr. Cheshire agreed with Dr. Berry’s judgment that a patient displaying G.K.’s symptoms and personality must be given some hope. Dr. Berry discussed changing his medication and talked about positive things. G.K.’s admitting to the fact that he had been doing alcohol and drugs and agreeing to try the new medication were positive steps, and Dr. Berry was correct to identify them as such. Dr. Sprehe agreed with Dr. Cheshire that one-to-one observation is called for when there is evidence a patient is "imminently suicidal," which he defined as a patient stating he will kill himself if given the chance, or showing he has made plans or "devious manipulations" to line up equipment to kill himself, or doing things such as making out a will or giving away personal items. Dr. Sprehe saw no such indications in G.K.’s record. Dr. Sprehe acknowledged G.K.’s history of severe depression and his several suicide attempts, but did not agree these factors made G.K. such a risk as to warrant one-to-one precautions: "The least restrictive alternative mandate is still in effect, and you don’t keep people locked up and eye-balled one-to- one all their life [sic] because they did one or two things in the course of their life." Dr. Sprehe agreed that "close observation" is called for at times with such patients, but he defined the term as fifteen minute checks, similar to the Q15 precautions actually ordered by Dr. Berry. Both Dr. Cheshire and Dr. Sprehe stated that it might have been proper to order one-to-one precautions during the first hour or two of G.K.’s admission, given the frenetic events leading up to it. Interestingly, Dr. Rosenthal opined that the first hour or two of G.K.’s admission was the only time that he would not necessarily have ordered precautions more restrictive than Q15. Dr. Sprehe testified that suicide is a sudden impulse, and that the impulses "all have to do with sudden insults to their personal integrity, whether it’s a boss tells them that they’re doing terrible in work, or whether someone in group therapy that says, why don’t you kill yourself and do the world a favor. A lot of different things can happen to make a sudden impulse. And that explains why it can happen suddenly on a psychiatric ward with people supposedly watching him." Dr. Cheshire made essentially the same point: "You cannot predict suicide. All the books tell you that you can’t predict it. You can just hope that you’re right." The weight of the expert testimony establishes that Dr. Berry did practice with an acceptable level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. The more restrictive environment recommended by Dr. Rosenthal might have been acceptable. However, the fact that two physicians arrive at different determinations as to the course of treatment for a patient does not necessarily mean that either physician has deviated from the standard of care, as Dr. Rosenthal himself testified. Dr. Berry cannot be deemed responsible for events over which he had no control and of which he had no knowledge. He could not have predicted that hospital staff would allow G.K. to have contraband, and he did not in fact know that G.K. had it. Dr. Berry was not told about the incident in group therapy on the morning of February 22, 1996. It was the unfortunate conjunction of these two events, not anything Dr. Berry did or failed to do, that provided G.K. with the impulse and the means to end his life.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Department of Health, Board of Medicine, enter a Final Order dismissing the December 16, 1997, Administrative Complaint against the Respondent, Carlos E. Berry, M.D. DONE AND ENTERED this 5th day of March, 1999, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON 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 5th day of March, 1999. COPIES FURNISHED: John E. Terrel, Esquire Department of Health Post Office Box 14229 Tallahassee, Florida 32317-4229 Donald W. Weidner, Esquire Jeanine Coris, Esquire Weidner & Wortelboer 11265 Alumni Way, Suite 201 Jacksonville, Florida 32246-6685 Tanya Williams, Executive Director Board of Medicine Department of Health Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0750 Angela T. Hall, Agency Clerk Department of Health 2020 Capital Circle, Southeast, Bin A02 Tallahassee, Florida 32399-1703 Pete Peterson, General Counsel Department of Health 2020 Capital Circle, Southeast, Bin A02 Tallahassee, Florida 32399-1703
Conclusions THIS CAUSE came before the State of Florida, Agency for Health Care Administration (“the Agency") regarding Certificate of Need (“CON”) Application No. 10198, which sought the establishment of a 92-bed acute care general hospital, proposed to be located in Duval County, Florida, District 4. The Agency preliminarily approved the application. 1. On December 10, 2013, the Agency published notice of its preliminary decision to approve CON Application 10198, submitted by Shands Jacksonville Medical Center, Inc., d/b/a UF Health Jacksonville, which sought the establishment of a 92-bed acute care general hospital, proposed to be located in Duval County, Florida, District 4. 2. On December 30, 2013, Memorial Healthcare Group, Inc. d/b/a Memorial Hospital Jacksonville (“Memorial”), timely filed a petition for formal administrative hearing to contest the preliminary approval of CON Application 10198. 3. The matter was referred to the Division of Administrative Hearings (DOAH), where it was assigned Case No. 14-0123CON. Filed July 21, 2014 1:02 PM Division of Administrative Hearings 4. On July 3, 2014, Memorial filed a Notice of Voluntary Dismissal. 5. On July 7, 2014, the DOAH issued an Order Closing File and Relinquishing Jurisdiction to the Agency. It is therefore ORDERED: 6. The Agency’s preliminary decision to approve CON Application No. 10198 is UPHELD subject to the conditions noted in the State Agency Action Report. ORDERED in Tallahassee, Florida, on this f x day of eeley , 2014. Elizabeth Agency for Health Care Administration
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE 1 CERTIFY that a true and correct copy of this Final Order was served on the below- BE 45 named persons by the method designated on this SL K day of a , 2014. —4 : FS Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308 (850) 412-3630 R. Bruce McKibben Administrative Law Judge Division of Administrative Hearings (Electronic Mail) Lorraine M. Novak, Esquire Office of the General Counsel Agency for Health Care Administration Lorraine. Novak@ahca.myflorida.com (Electronic Mail) Stephen A. Ecenia, Esquire Rutledge, Ecenia and Purnell, P.A. Post Office Box 551 Tallahassee, Florida 32302-0551 Steve@reuphlaw.com (Electronic Mail) Seann M. Frazier, Esquire Jonathan L. Rue, Esquire Parker, Hudson, Rainer and Dobbs, LLP 215 South Monroe Street, Suite 750 Tallahassee, Florida 32301 Sfrazier@phrd.com Jlr@phrd.com (Electronic Mail) Karl David Acuff, Esquire Law Offices of Karl David Acuff 1615 Village Square Blvd., Suite 2 Tallahassee, Florida 32309-2770 Kdacuff@fioridacourts.com (Electronic Mail) James McLemore, Supervisor Certificate of Need Unit Agency for Health Care Administration James.McLemore@ahca.myflorida.com (Electronic Mail) Marisol Fitch Health Services & Facilities Consultant Certificate of Need Unit Agency for Health Care Administration Marisol. Fitch@ahca.myflorida.com (Electronic Mail)
The Issue Whether the Respondent committed the offenses set forth in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact The Respondent, Charles E. Nelson, was certified as a law enforcement officer by the Criminal Justice Standards and Training Commission on February 23, 1990, and issued certificate number 99509. Based on what Officer Nelson told a fellow officer, he had previously worked in law enforcement for 20 years in Toledo, Ohio. On December 12, 1992, Sergeant Charles Anthony Wall of the Jacksonville Sheriff's Office and Dale Wayne Vermillion, a reserve police officer, responded to a call, reporting that a man and a woman were fighting near a convenience store. Officer John Michael McKim also responded to the call, in a separate vehicle, to serve as Sergeant Wall's backup. Tommy Goode and Teresa Pickens were found in a wooded area near the convenience store and were arrested for disorderly intoxication. Because Goode and Pickens were arguing with each other, they were placed in separate police cars. Goode was handcuffed and locked in the back of Sergeant Wall's caged police car, while Pickens was placed in Officer McKim's car. While Sergeant Wall was sitting in the driver's seat of his vehicle completing certain paperwork, including an arrest docket, Officer Nelson arrived in a third vehicle. From the back of Sergeant Wall's car, Goode was yelling offensive comments to all of the officers. After Officer Nelson, who is Black, approached the car, Goode included racial epithets, including the word "nigger," in his continuing offensive comments. Officer Nelson responded to Goode's taunting by saying words to the effect: "I'm not like the rest of these people, I don't need my job. I'll come back and get you." Officer Nelson unlocked the back door of Sergeant Wall's car, leaned in, grabbed, choked, and shook Goode. The reserve officer who could see Goode's face during the attack described it as follows: And when Officer Nelson went into the vehicle, I was standing looking in through the window, and Officer Nelson grabbed Mr. Goode around the neck with his hand and was choking him to a point that I had not seen a human's eyes extend out of their eye sockets so far, so he was choking him pretty hard and kind of shaking him back and forth. Transcript p. 24 Because of Officer Nelson's size and strength, Sergeant Wall needed the assistance of Officer McKim to pull him off Goode and out of the car. In the following excerpt of his testimony, Sergeant Wall described his response to Officer Nelson's actions: So I told him, you know, hey, "What are you doing, get off of him," something to that effect. And that didn't work, so I began to try to pull him off, me and Officer McKim. And it took great effort to get him off, and I don't know if I actually -- he let go, or the effort that it took to pull him off that got him off, I just remember that when he came out of the backseat, that he was like a wild man. I mean, I thought at one point he was going to jump on us. Transcript p. 10 Goode had red marks on his neck when Sergeant Wall transported him to jail. The Sheriff's Department initiated both criminal and administrative investigations of Officer Nelson's attack on Goode. Officer Nelson was first reassigned to a desk job and, ultimately, left the department. Officer Sandra M. Pike participated in the internal investigation of the incident by the Sheriff's Office. When she interviewed Officer Nelson, he told Officer Pike that he lost control and that he intended to shut Goode up. The force used by Officer Nelson was unnecessary. Goode was not posing a threat or trying to escape. The conduct of Officer Nelson constitutes a criminal offense and demonstrates a failure to maintain good moral character.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission of the Florida Department of Law Enforcement, revoke certificate number 99509, issued on February 23, 1990, to Charles E. Nelson. DONE AND ENTERED this 23rd day of September, 1997, in Tallahassee, Leon County, Florida. ELEANOR M. HUNTER 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 23rd day of September, 1997. COPIES FURNISHED: A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302-1489 Michael Ramage, General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Amy J. Bardill, Esquire Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Kenneth Vickers, Esquire 214 Washington Street Jacksonville, Florida 32202
