Findings Of Fact Based on the Prebearing Stipulation executed by the parties, and the evidence submitted at hearing, the following facts are determined: Mental Health Board No. 9 ("Board") coordinates mental health programs within the Department's Service District 9-a geographic area encompassing Indian River, Okeechobee, St. Lucie, Martin, and Palm Beach Counties. Three community mental health centers provide services to meet the mental health needs within District 9. (Testimony of Robert Quam) The Board, by contract with the Department's Administrator of District 9, coordinates and disburses State funds specifically appropriated for the purpose of supporting community treatment programs for persons suffering from mental illness, alcoholism and drug abuse. The current contract between the District Administrator and the Board was executed during June, 1979, and contains no allocation to the Board for the provision of residential treatment services for emotionally disturbed children. (Testimony of K. Bray) In 1979, the Florida Legislature appropriated to the Department's central Office of the Assistant Secretary for Operations, Office of Assistant Secretary, a lump sum of $1,295,000.00 for the purchase of residential treatment services for emotionally disturbed children during fiscal year 1979-80. In addition, $705,000.00 was provided, in lump sum, to the Florida Department of Education for education of emotionally disturbed children. (Testimony of K. Bray, Petitioner's Exhibit Nos. 2 and 9) On July 19, 1979, the Department distributed to over 50 providers of social services, a Request for Proposals for the purchase of residential services for emotionally disturbed children. The Request indicated the Department was "seeking to expand its services for emotionally disturbed children and adolescents through the development of residential. treatment- orientation programs," 1/ outlined the features of the program, including statewide standards and other criteria, and invited recipients to submit to the Department's Assistant Secretary for Operations, proposals to provide such services by contractual purchase. (Testimony of K. Bray, Petitioner's Exhibit Nos. 1 and 2) The Department required proposed residential services for emotionally disturbed children to emphasize short term treatment designed to meet the social, emotional, and educational (including vocational) needs of children. Since the Department concluded that there was "no concrete evidence that one specific therapeutic modality works best at reducing or eliminating a child's emotional disturbance," 2/ applicants were invited to propose a wide range of treatment modalities. While successful treatment for emotionally disturbed children includes a therapeutic mental health element, it also must include educational, vocational, recreational, and social components. (Testimony of E. Bray, Dr. Clifford J. Bodarky, Petitioner's Exhibit No. 2) Upon receiving the Department's Request for Proposals for the purchase of residential services for emotionally disturbed children, the Executive Director of the Board met with representatives of the three mental health centers within District 9. They concluded that there was an urgent need for such services within their area, and agreed to submit, through the Board, a coordinated proposal to the Department. The Board's Executive Director drafted the initial proposal, and, after approval by the mental health centers and Board, submitted it to the Department's Assistant Secretary for Operations. The Board's proposal, which would be supported and administered by the three mental health centers, provided for the establishment of 45 therapeutic foster care homes, with close supervision by professional case workers. (Testimony of R. Quam, Petitioner's Exhibit Nos. 3 and 4) The Department received in response to its July 19th request, 20 proposals from providers of social services throughout the State, including one mental health board (Mental Health Board No. 9, Inc.), several mental health centers, a hospital, university, Little River Boys Ranch and Boystown of South Florida. By letter of August 31, 1979, the Department's Assistant Secretary for Operations notified the Board that its proposal had been selected for further review. During September, the Board's Executive Director discussed its proposal with Department representatives in Tallahassee, including Ms. Phyllis Roe, Assistant Secretary for Operations. They specifically discussed one attribute of the proposal-- that it would be a coordinated effort under the Board, with the Board serving as the applicant. Although Board representatives left that meeting with a belief that the Department was amenable to such a role for the Board, Department representatives did not expressly approve, or commit to approval of this feature of the proposal. (Testimony of Terry H. Allen, and Robert K. Quam) By letter dated October 8, 1979, Assistant Secretary Roe informed the Executive Director of the Board that its proposal had been approved, and concluded: "Because your plan involves therapeutic foster homes in three separate Mental Health Center catchment areas and each Center may focus its program a little differently, we will need to execute three separate contract.. I believe the process will be expedited if we deal directly with the Center staff responsible, with your par- ticipation in the process and, with space provided on the contract for your con- currence." (Petitioner's Exhibit No. 7) By letter of October 25, 1979, the Board objected to the Department's decision to bypass it and implement the proposal by contracting directly with each mental health center involved. The Department subsequently executed separate contracts with the three mental health centers included in the Board's proposal. No evidence was introduced to indicate that the program is not being effectively administered pursuant to the provisions of those contracts. (Petitioner's Exhibit No. 8)
Conclusions Funds appropriated to the Department's central Office of the Assistant Secretary for purchase of residential services for emotionally disturbed children are not State mental health funds which must be distributed to and administered by the various district mental health boards under Part IV, Chapter 394, Florida Statutes (1979). Contract principles do not compel the Department to contract with Petitioner Mental Health Board No. 9 to provide residential services to emotionally disturbed children located in District 9.
Recommendation That Petitioner Mental Health Board No. 9's request for relief be DENIED and the Department's actions under challenge be UPHELD.
Findings Of Fact Board No. 9 is a nonprofit Florida corporation. Its primary responsibility is to coordinate community mental health programs in a five- county catchment area consisting of Palm Beach, Martin, St. Lucie, Indian River, and Okeechobee counties. It receives funds from the state and counties; then, by subcontract with third parties, it spends the funds for mental health and alcoholic treatment services in the five-county area. (Testimony of Anderson.) Prior to 1977, when Board No. 9 began operations, the five-county area was provided mental health services by Mental Health District Boards Nos. 18 and On January 1, 1977, Mental Health Boards Nos. 18 and 20 were dissolved and replaced by Board No. 9. In February, 1977, the Department and Board No. 9 entered a written agreement which provided state funds to Board No. 9 for specified mental health programs. As a condition to receiving the state funds, Board No. 9 accepted responsibility for "the collection of all past and present liabilities and obligations due the Department," from the nine listed mental health contractors of former Mental Health Boards Nos. 18 and 20. The agreement, by its terms, terminated on June 30, 1977. (Testimony of Anderson; R-4.) In October, 1981, Board No. 9 was notified by the Department that it must repay $32,102 which had allegedly been overpaid to the former Mental Health Board No. 18, during the fiscal year ending June 30, 1976. The Department's claim was based on a recent audit it had completed on former Mental Health Board No. 18. Board No. 9 opposes the Department's demand. (Testimony of Anderson, Hodnette.) The Department presented no evidence to establish (1) that the 1977 contract was subsequently renewed; (2) that Board No. 9 was notified prior to 1981 that any liabilities and obligations were due the Department from the various subcontractors of former Mental Health Board No. 18; or (3) that Board No. 9 ever agreed to accept responsibility for payment of the nine subcontractors' past and present obligations or liabilities to the Department. Most, if not all, of the nine subcontractors are now defunct or dissolved and recourse against them for past liabilities is impracticable.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department withdraw its claim against Board No. 9 for $32,102. DONE AND RECOMMENDED this 21st day of July, 1982, in Tallahassee, Florida. R. L. CALEEN, JR. 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 21st day of July, 1982.
Findings Of Fact UniPsych is a Florida corporation that provides managed mental health and substance abuse services to Florida residents. The company was founded by Dr. Leo Bradman, a recognized authority in managed mental health care. UniPsych currently provides mental health and substance abuse services and has been providing mental health services, on a managed care basis to the Lake County School District and its employees for the last five (5) years. In July 1995, the Board issued Request For Proposals No. 883 (RFP). The RFP sought proposals for a managed behavioral health program that includes an employee assistance program and a mental health/substance abuse program for the School District employees, their spouses, and their children. The RFP at a minimum requires that each member would be entitled to three visits a year with a counselor. The first visit would be at no charge to the member and a $10.00 charge to the member for visits two and three. The RFP also states in pertinent part: Rights are reserved by the School Board of Lake County to reject any and all proposals and to waive all technicalities. * * * THE SCHOOL BOARD RESERVES THE RIGHT TO ACCEPT OR REJECT PROPOSALS IN WHOLE OR IN PART; AND TO AWARD A CONTRACT IN THE MANNER IN WHICH THE BOARD DETERMINES TO ITS BEST INTEREST. Award of this proposal is intended to be made by the School Board at its regular meeting on August 8, 1995. Conformity to specifications, price, quality of network, quality of program, response to worksheet and financial stability will be determining factors in the awarding of the proposal. All proposals must include the following: Completed Managed Behavioral Health Program Worksheet signed by an authorized representative. Completed Statement on Public Entity Crimes. A copy of your company's Florida Private Review Act Certification. Sample EAP and Managed MH/SA communi- cations to employees. A sample contract stating the provisions that would apply if your company is selected. Any additional information which your company deems pertinent to the proposal. The RFP does not define the term financial stability. The RFP does state a preferred method of calculating price. The preferred method of calculating price is the per employee contracts per month model. Total employee contracts is 2855 employees. Six (6) vendors submitted proposals prior to the submission deadline for RFP 883, including the prior contract holder UniPsych. The Board's plan for evaluating the six proposals was to submit them to the Board's insurance committee and the Board's expert consultant, John D. Robinson. The Board elected to have Mr. Robinson screen the submitted proposals for responsiveness to the RFP. Of the six (6) proposals submitted to the School Board, only the proposals of UniPsych, FPM, and Mathar Behavioral Health Systems, Inc. were deemed to satisfy the criteria of the RFP. These three proposals were sent to the Board's insurance committee so that the committee members could review and interview the three remaining proposers. The committee members as well as the Board had each proposers' proposal as well as a spreadsheet prepared by Mr. Robinson during his screening process. However, the evidence was clear that the committee relied on the price representations and guarantees contained in the spreadsheet. The Committee voted 9-0-1 to recommend the award to FPM. The Petitioner received no votes. The third finalist received one vote. Around August 10, 1995, UniPsych received written notice that the School District's ten-member district-wide health insurance committee decided to recommend that the School Board award its contract to FPM. As indicated earlier in screening the proposals, Mr. Robinson prepared a spreadsheet containing comparative data. The spreadsheet was not meant to be a complete listing of all the items in a company's proposal. He obtained the information contained in the spreadsheet mostly from the proposers' proposals. However, in at least two instances relevant to this case. Mr. Robinson contacted certain proposers over its proposal. Mr. Robinson felt he could seek corrections or clarifications from FPM, and other proposers because "[t]his is a proposal, not a bid. Proposals have the ability to be questioned and clarified " One such call was made to FPM. The call to FPM was made regarding at least two portions of FPM's proposal. FPM stated in Part 3 of its proposal that 14 average employee assistance program (EAP) visits per 1000 members were handled by FPM; and stated in Part 7 of its proposal that it would offer the benefit design outlined in the Board's specifications at $5.00 per employee contract per month. The $5.00 rate would be guaranteed for "two years without significant Consumer Price Index (CPI) increases." FPM was permitted to change the information contained in Part 3 of its proposal to 80-85 average employee assistance program visits per 1000 members because the original number was an error. The evidence did not demonstrate that this change was significant or material. More importantly however, FPM was allowed to change it price guarantee to three years without the CPI provision. These changes contradicted the plain language of FPM's proposal. Mr. Robinson inserted the newly-provided information in his spreadsheet and reported these changes to FPM's proposal to the committee. The change made to FPM's price guarantee was not a mere clarification but a significant change in a material bid term. The evidence was clear that the information in the spreadsheet was utilized and relied on by the Board and its insurance committee. The spreadsheet also contained information on each proposer's price. However, the spreadsheet was unduly detrimental to UniPsych because it overstated UniPsych's price. Health benefit contracts are typically priced under one of two methods: per employee per month (PEPM) or per member per month (PMPM or additive method). Members include the employee as well as any non-employee persons such as children of the employee covered under a health plan. The RFP stated a preference for pricing on a PEPM basis. UniPsych proposed to charge $4.01 on a PEPM basis. In determining UniPsych's PEPM average, the individual employee price was not added onto the price charged per employee and child(ren), per employee and spouse, or per employee and family. However, the spreadsheet erroneously stated all prices in the spreadsheet on a PMPM basis and reflected that UniPsych proposed to charge $4.80 PMPM instead of $4.01 PEPM. Moreover, the price was incorrectly based on an interpretation of documents relating to UniPsych's pricing scheme under its prior contract with the School Board. The erroneous interpretation served to inflate the spreadsheets price calculation for UniPsych. FPM proposed to charge $5.00 PEPM. Mr. Robinson recognized that if UniPsych's price was $4.01 PEPM, it would be substantially different from FPM's price, and could be sufficient to justify an award of the contract to UniPsych over FPM. Given the price guarantee change to FPM's proposal and this error in calculating UniPsych's price, these two factors warrant the rejection of all the bids in this case. As indicated earlier, the financial stability of a proposer was one of the criteria for review of this RFP. Neither the committee nor the RFP members required that any proposer submit financial information with its proposal or in its presentation to the committee. The only information supplied was general company information showing business activity, clients served and providers under contract. The committee members generally only asked the proposers if such information was available and if the proposer was financially stable. At the hearing, the evidence showed that FPM is the wholly-owned subsidiary of Ramsay Managed Care, Inc. (Ramsay). Ramsay essentially has two operating divisions: a health maintenance organization (HMO) division and a mental health and substance abuse division. FPM is Ramsay's mental health and substance abuse operating division. Ramsay's 10Q filing for the quarter ending March 31, 1995, reported that Ramsay had $17,508,893 in assets, $13,236,246 in liabilities, shareholder's net worth of $4,272,647, and $87,802 in losses that quarter. Ramsay has current assets of $2,957,912 and current liabilities of $4,362,714. These two figures give Ramsay a current ratio of 1:1.47. Generally a 1:1 or better ratio is deserved for financially stable companies. However, the ratio by itself does not show financial instability. It is simply a red flag worthy of more scrutiny. Ramsay's largest asset is "goodwill" totaling $9,959,745. Ramsay's 10Q explains that it booked most of this goodwill to account for its acquisition of FPM and two other mental health companies at prices exceeding the book values of those companies. Again the amount of goodwill does not demonstrate financial instability of a company. The 10Q also reflects that FPM proposes to obtain working capital via a line of credit that is collateralized by security interests in FPM's accounts receivable and its stock. The significance of these security interests is magnified by Ramsay's debt service obligations, which (as of March 31, 1995) would require it to pay out $2,211,100 by June 30, 1997, and $2,407,600 by June 30, 1998. Again these figures do not demonstrate financial instability of a company. To confirm its financial stability, UniPsych offered the Committee audited financial statements that were being prepared on a statutory accounting basis. The statements were never requested by the Committee and the Committee never considered financial statements for any of the proposals. However in this instance, the committee did consider the financial stability of all the proposers to its satisfaction. The evidence did not show that the committee's consideration was unreasonable or unfair to any proposer. In fact, the proposers were treated equally in the quality and quantity of financial information sought by the committee. The fact that more information or better information could have been sought is irrelevant since the committee and Board under the RFP specifications were free to determine the level of inquiry they deemed appropriate. If the specification as used by the Board was unclear or undefined to UniPsych, it should have challenged the specifications within the 72 hour period for such challenges under 120.53, Florida Statutes. Finally, the evidence was clear that UniPsych's proposal was a superior program to FPM's. In short UniPsych offered more benefits for less money. Indeed UniPsych's experiences during those five (5) years gave it first-hand knowledge of several ways it could improve and enhance the managed care program specified by the Board's RFP. FPM's proposal fails to offer any enhanced benefits. To enhance and improve the RFP's managed care program, UniPsych offered to provide two (2) additional benefits to the Board: (a) an out-of-network benefit; and (b) a chronic condition benefit. The out-of-network benefit gives potential patients complete choice of out-patient providers and increased choice of in-patient (hospital) providers, by allowing those potential patients to select a provider who is outside a designated network of providers. The chronic condition benefit addresses another restriction that is prevalent in most managed mental health care programs. As is the case with the RFP in issue, most managed mental health care programs routinely fail to require the plan provider to contract for coverage of chronic, recurrent or long-term mental health conditions (chronic conditions). This omission forces chronic condition patients to look to publicly funded community agencies for mental health care. Publicly funded facilities in Lake County have not produced patient satisfaction, partly because they are too few in number or they offer too few services. In addition to these two (2) major benefits, UniPsych's proposal also offered several other valuable benefit enhancements that improved upon the RFP's minimum requirements: 10 additional out-patient visits (above the 20 required by the RFP); and 5 free visits (i.e., no co-payment for members) under UniPsych's Employee Assistance Program, instead of the RFP's requirement of three visits, only the first of which is not subject to co-payment. The evidence did not demonstrate any reason with a basis in fact which would have caused the School Board to reject UniPsych's proposal in favor of FPM. The evidence only hinted at a general dissatisfaction with UniPsych. No basis for this dissatisfaction was shown. Since no basis was given for the Board's decision to reject a proposal which offers more benefits for less money the only conclusion is that the Board acted arbitrarily in awarding the contract to FPM. Therefore, all the proposals should be rejected and the process begun anew.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board enter a Final Order rejecting all proposals. DONE and ENTERED this 29th day of January, 1996, at Tallahassee, Leon County, Florida. Officer Hearings 1550 Hearings DIANNE CLEAVINGER, Hearing Division of Administrative The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399- (904) 488-9675 Filed with the Clerk of the Division of Administrative this 29th day of January, 1996. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 95-4827BID The facts contained in paragraphs 2, 3, 4, 5, 7, 8, 13, 14, 15, 17, 19, 20, 21 and 22, of Petitioner's Proposed Findings of Fact are adopted in substance, in so far as material. The facts contained in paragraphs 1, 6, 10, 11, 16, 18, 24, 25 and 26 of the Petitioner's Proposed Findings of Fact are subordinate. The facts contained in paragraphs 12 and 23 of Petitioner's Proposed Findings of Fact were not shown by the evidence. The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8(a) and (b) and 15 of Respondent's Proposed Findings of Fact* are adopted in substance is so far as material. The facts contained in paragraphs 11, 12, 13 and 14 of Respondent's Proposed Findings of Fact are subordinate. The facts contained in paragraphs 9 and 10 of Respondent's Proposed Findings of Fact were not shown by the evidence. Paragraph 8(c) of Respondent's Proposed Findings of Fact contained only legal argument. *Paragraphs 7 through 15 of Respondent's Proposed Findings of Fact were unnumbered. Therefore, the Hearing Officer supplied sequential numbers for these paragraphs for reference purposes. COPIES FURNISHED: Timothy G. Schoenwalder, Esquire Blank, Rigsby and Meenan, P.A. 204 South Monroe Street Tallahassee, Florida 32301 Richard Langley, Esquire Post Office Box 120188 Clermont, Florida 34712-0188 Dr. Thomas E. Sanders, Superintendent Lake County School Board 201 West Burleigh Boulevard Tavares, Florida 32778-2496 Frank T. Brogan, Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32399-0400
The Issue The issue presented herein is whether or not a CON to construct a 60-bed short-term psychiatric hospital in District XI should be issued to Florida Medical Center (FMC).
Findings Of Fact FMC seeks a CON for a 60-bed free-standing psychiatric facility to be located in the Key Largo area of Monroe County in HRS District XI. FMC intends to provide 6.25 percent of its patient days at no charge to indigent patients. It further intends to provide another 6.25 percent of its patient days to HRS' clients and Baker Act patients at 50 percent of its projected charge, or $200 per day. (FMC Exhibit 2, Table 7). FMC proposes to build this facility at a cost of $6,060,000. Dr. Richard Matthews, Ph.D., has been executive director of the Guidance Clinic of the Upper Keys since 1973 and is a clinical psychologist. He is responsible for the overall administration and supervision of mental health, alcohol, drug abuse and out-patient services provided under contract with HRS. Dr. Matthews was qualified as an expert in clinical psychology and the mental health delivery health system in Monroe County. (FMC Exhibit 13). There are three guidance clinics in Monroe County, one each for the upper, lower and middle Keys. HRS contracts through each of these clinics to provide mental health care for its clients. There are no community mental health centers in Monroe County and the clinics are the sole means of delivering mental health care on behalf of HRS' clients within the county. Currently, the guidance clinic of the upper Keys places its in- patients in Harbor View Hospital in Dade County at a cost of $236 per day. Neither Harbor View nor any other hospital provides free days to any of the guidance clinics for in-patient psychiatric care. (FMC Exhibit 13, P. 9) Jackson Memorial Hospital does not accept indigent or charity psychiatric patients from Monroe County. There have been occasions where patients without resources have been unable to be hospitalized although hospitalization was indicated. The middle Keys has a crisis hospitalization unit with a limited number of beds. Patients needing hospitalization longer than three days must be transferred to Harbor View or some other facility in the District. The 15 beds at Depoo Hospital in Key West are not readily accessible to residents of the upper Keys. Residents needing psychiatric services usually go to hospitals in Dade County. Coral Reef Hospital, the nearest psychiatric facility to Petitioner's proposed facility, has in the past refused to negotiate a discounted rate with the guidance clinic. Dr. Matthews, on one occasion, sent a patient to Coral Reef who was refused treatment. Currently, no psychiatrist practices in Key Largo because there are no psychiatric beds to which a psychiatrist could admit patients. The discounted rate of $200 per day quoted by FMC is some $36 per day less than the guidance clinic currently pays to providers for referrals of its patients for psychiatric care. Additionally, the 6.25 percent of free care that Petitioner proposes is greater than the free care which the guidance clinic currently receives from any facility since no facility presently gives any free care to the clinic. The guidance clinic supports Petitioner's CON application and will contract with Petitioner who provides services for in-patients. Grant Center is a long-term 140-bed psychiatric hospital specializing in the treatment of children and adolescents. It is the nearest facility to Petitioner's proposed facility. Grant Center has agreed to refer adult patients to Petitioner. Grant Center treats 2-3 adults a month who need psychiatric care. (FMC Exhibit 14). There is one hospital providing psychiatric care in Dade County which was surveyed by the Health Care Finance Administration (HCFA) in March, 1988. Currently, a third party insurance carrier no longer utilizes Grant Center because of price. If a facility has prices which carriers consider too expensive, utilization will go down. (FMC Exhibit 14, P. 7). Grant Center currently contracts with HRS to provide its clients care at a rate of approximately $350 per day, a rate one half of Grant Center's normal rate. Jackson Memorial is the only Dade County hospital which will treat an indigent psychiatric patient. Grant Center intends to assist Petitioner with staffing or programmatic needs. It has 80-100 professional staff, most of whom live in close proximity to Key Largo. Robert L. Newman, C.P.A., is the chief financial officer at FMC. He testified, by deposition, as an expert in hospital accounting and finance. Newman analyzed the Hospital Cost Containment Board (HCCB) reports for each hospital in District XI which provides psychiatric care. There is no free standing psychiatric hospital in the District which reports any indigent or uncompensated care. Among area acute care hospitals which have psychiatric units, Miami Jackson rendered 38.89 percent indigent care, Miami Children's rendered 6.5 percent indigent care, and no other facility reported that it rendered more than 1.75 percent indigent care. (FMC see Exhibit 11, disposition exhibit 1). Jackson provides no free care to Monroe County residents and Miami Children's care is limited to treating children while Petitioner is seeking adult beds. Jayne Coraggio testified (by deposition) as an expert in psychiatric staffing and hiring. She is currently Petitioner's director of behavioral sciences. The ideal patient to staff ratio is 4 to 5 patients per day per professional staff member. During the evening shift, the ideal patient ratio per professional staff member is 7 to 8 patients. (FMC Exhibit 12, PP. 6-7). Petitioner's facility is adequately staffed based on the above ratios. FMC is considered overstaffed in the psychiatric unit by some of the other area hospitals since they do not staff as heavily as does Petitioner. Lower staffing ratios can affect quality of care since patients and their families would not receive as much therapy. Family therapy is important because the family needs to know about changes in the patient in order to make corrective adjustments. The family that is required to travel in excess of 45 minutes or more one way is less likely to be involved in family therapy. Islara Souto was the HRS primary reviewer who prepared the state agency action report (SAAR) for Petitioner's CON application. (FMC Exhibit 15). District 11 has subdivided into five subdistricts for psychiatric beds. Florida is deinstitutionalizing patients from its mental hospitals. To the extent that private psychiatric hospitals do not accept nonpaying patients, their existence will not solve the problem of caring for such patients. Souto acknowledged that the local health councils conversion policy discriminates against subdistrict 5 because there are so few acute care beds in the subdistrict. In fact, the conversion policy actually exacerbates the maldistribution of beds in the district. (FMC 15, page 26). The psychiatric facility nearest the proposed site (Coral Reef), had an occupancy of 90.3 percent. Souto utilized a document entitled Florida Primary Health Care Need Indicators, February 1, 1986, and determined that Monroe County has not been designated as a health manpower shortage area, nor a medically underserved area. This information is relied upon by health planners to determine the availability of health manpower in an area. This report refers both to physicians and R.N.'s. The average adult per diem for free-standing hospitals in District 11 range from $430 at Charter to just over $500 at Harbor View. Although districts have established subdistricts for psychiatric beds, no psychiatric bed subdistrict in any district has been promulgated by HRS as a rule. The access standard that is relevant to this proceeding is a 45-minute travel standard contained in Rule 10-5.011(1)(o)5.G. That standard states: G. Access Standard. Short-term inpatient hospital psychiatric services should be available within a maximum travel time of 45 minutes under average travel conditions for at least 90 percent of this service area's population. Here, the standard refers to the service area which is determined to be an area different than a service district. Applying the travel time standard on a service area basis makes the most sense since the subdistrict is established by the local health council and not the applicant. Analyzing this access standard on a sub-district level, 90% of the sub-districts population is not within 45 minutes of any facility anywhere in sub-district V since the sub-district is more than two hours long by ordinary travel and the population is split two-thirds in lower Dade County and one-third in Monroe County, the bulk of which is in Key West. (FMC Exhibit 17). Therefore, a facility located on either end of this sub-district is not readily accessible by the applicable travel standards to citizens at the other end of the sub-district. This access standard must however be measured and considered with the needs for psychiatric services of the kind Petitioner is proposing to provide. Petitioner has not presented any access surveys or assessments of the caliber relied upon by the Department in the past. Petitioner's facility which would be located in the Key Largo area will no doubt provide better geographic accessibility to residents of District XI who live in the Key Largo area. HRS has in the past used a sub-district analysis to determine geographic accessibility for psychiatric beds even though it has not promulgated a rule for sub-districts for psychiatric beds. See, for example, Psychiatric Hospital of Florida vs. Department of Health and Rehabilitative Services and Pasco Psychiatric Center, DOAH Case No. 85-0780. Likewise, the Department has approved the conversion of acute-care beds to psychiatric beds even though it found that there was a surplus of psychiatric beds in the district. (Petitioner's Exhibit 7). The Department has in the past used a geographic access analysis to approve psychiatric beds in District XI and has used the sub- district analysis or a time travel analysis in its review of Cedars, Coral Reef, Depoo (for psychiatric beds) and the Glenbiegh case (for long term substance abuse). The bed need calculations for the January, 1992 planning horizon shows a surplus of 180 short-term in-patient psychiatric beds. (HRS Exhibit 2). The occupancy level for short-term psychiatric beds in the district is below 70%. (HRS Exhibit 2, pages 11-12). Additionally, the occupancy standards of the local and state health plan, of which the department is required to review CON applications, have not been met in this instance. (HRS Exhibit 2, Pages 6-7). Petitioner has not submitted any documentation to HRS regarding special circumstances need. Petitioner's proposal at final hearing for a staff referral agreement with another local hospital was not contained in the CON application filed with HRS. (FMC Exhibit 14, pages 11-12). Although Petitioner has alluded to some unspecified access problem for residents in the Florida Keys, Petitioner has not documented a real access problem and certainly not a demonstration of inaccessibility under the rule access standard. (Florida Administrative Code Rule 10-5.011(1)(o)5.g.)(HRS Exhibit 2, pages 14-15). Although the proposed project would increase availability and access for underserved groups in the district, the percentage of total patient days for "indigents" is not substantial and certainly not to the point to warrant deviation from the usual access criteria. 2/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, IT IS RECOMMENDED THAT: Petitioner's application for a Certificate of Need to build a 60-bed free- standing psychiatric hospital in District XI be DENIED. DONE and ENTERED this 28th day of February, 1989 in Tallahassee, Florida. JAMES E. BRADWELL 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 28th day of January, 1989.
The Issue Did Respondent, Tonya Shrader, R.N. (Ms. Shrader), violate section 464.018(1)(j), Florida Statutes (2015),1/ by being unable to practice nursing with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics, or chemicals or any other type of material, or as a result of any mental or physical condition? If Ms. Shrader violated section 464.018(1)(j), what penalty should be imposed?
Findings Of Fact Section 20.43 and chapters 456 and 464, Florida Statutes, charge the Department of Health, Board of Nursing, with the licensing and regulation of nurses. At all times material to the allegations in the Administrative Complaint, Ms. Shrader was a licensed registered nurse in the State of Florida. She holds license RN 9180605. Ms. Shrader has a complicated history of psychiatric and medical problems that affect her ability to practice nursing with the level of skill and safety to patients required in the State of Florida. Ms. Shrader has suffered from depression since childhood. Ms. Shrader treated her depression with a variety of medications, including: Lithium, Depakote, Pamelor, Elavil, Topamax, Lamictal, and Prozac. In the past five years, Ms. Shrader has not received treatment for her depression. Ms. Shrader also suffers from anxiety. Ms. Shrader is not receiving treatment for her anxiety. In addition to depression and anxiety, Ms. Shrader suffers from chronic severe migraines. The cause has not been determined despite extensive neurological evaluations. Ms. Shrader has been prescribed Tramadol, Fiorcet, and Clonazepam to treat her migraines. At all times material to the Department's complaint, Ms. Shrader was prescribed Fiorcet for her migraine symptoms. Between March 24, 2012, and July 22, 2013, Ms. Shrader complained of multiple neurological symptoms, including double vision, balance and gait instability, and tingling and numbness in her hands. Ms. Shrader elected to undergo extensive neurological testing to rule out demyelinating disease, multiple sclerosis, and palsy. The tests provided no indication that Ms. Shrader's symptoms resulted from a neurological disorder. At all times material to this proceeding, Ms. Shrader worked as a registered nurse in the Neurological and Psychiatric Unit at Gulf Coast Medical Center (Gulf Coast). On December 20, 2013, Ms. Shrader took an excessive dose of four Fiorcet pills. She told her family that she "plans to keep overdosing until she dies," and that she "predicts that [she] will be dead by the end of the year." Ms. Shrader's family contacted the Emergency Medical Services. Ms. Shrader was transported to Lehigh Regional Medical Center, where she was treated for an overdose. Ms. Shrader was involuntarily admitted to SalusCare, Inc. (SalusCare), for inpatient psychiatric observation and treatment. On December 20, 2013, the Crisis Stabilization Unit (CSU) at SalusCare conducted an in-patient psychiatric evaluation of Ms. Shrader. During the evaluation, Ms. Shrader denied past psychiatric treatments or psychiatric medication. Ms. Shrader also denied that her Fiorcet overdose was an attempted suicide. Her statements during her SalusCare evaluation contradict her medical charting and statements she has made, which indicate that she has an extensive history of psychiatric illnesses. SalusCare discharged Ms. Shrader on December 23, 2013. The director of nursing at Gulf Coast contacted the Intervention Project for Nurses (IPN) about Ms. Shrader. IPN is an impaired practitioner consultant to the Department's Board of Nursing. IPN works with nurses and monitors them for safety to practice issues. IPN contacted Ms. Shrader on January 2, 2014, to discuss her entering the program. Ms. Shrader denied that she was impaired or abused any substances. She admitted that she was depressed. But she said that she stopped her depression treatment approximately five years earlier. IPN asked Ms. Shrader to undergo an evaluation to determine her fitness to practice nursing. Ms. Shrader scheduled an evaluation with Theodore Treese, M.D., an expert in the psychiatric treatment, monitoring, and care of health care practitioners. He conducted the evaluation on January 28, 2014. Dr. Treese diagnosed Ms. Shrader with severe major depressive disorder; alcohol abuse; opioid abuse; sedative, anxiolytic abuse; relational problems, not otherwise specified; and rule-out polysubstance abuse. During the evaluation, Ms. Shrader attempted to hide her in-patient psychiatric treatment at SalusCare. Based on Ms. Shrader's diagnoses, Dr. Treese determined that Ms. Shrader was not capable of practicing as a registered nurse with reasonable skill and safety to patients. Dr. Treese recommended that Ms. Shrader seek treatment at a substance abuse treatment center at a level of at least partial hospitalization. Ms. Shrader did not agree with Dr. Treese's recommendation. IPN gave Ms. Shrader the opportunity to seek a second opinion from another IPN-approved evaluator. IPN informed Ms. Shrader that she needed to either obtain a second opinion or enter the recommended treatment before April 14, 2014; otherwise, IPN would close her intake case file. Ms. Shrader refused to obtain a second opinion or enter into the recommended treatment. IPN closed Ms. Shrader's file on April 14, 2014. On December 2, 2014, Mark Sylvester, M.D., a physician specializing in psychiatry and addiction medicine, evaluated Ms. Shrader pursuant to Department Order. Dr. Sylvester reviewed Ms. Shrader's medical records, the IPN intake case file, and the Department's investigative report. Dr. Sylvester also asked Ms. Shrader to undergo a urine and hair drug screen. Ms. Shrader did not participate in the screens. Dr. Sylvester diagnosed Ms. Shrader with recurrent major depressive disorder, opioid abuse, alcohol abuse, benzodiazepine abuse, nicotine dependence, factitious disorder versus malingering, rule-out hypochondriasis, and rule-out conversion disorder. During the evaluation, Ms. Shrader attempted to conceal her psychiatric history, substance abuse, and symptoms of depression. Ms. Shrader's unwillingness to be forthcoming during her evaluation demonstrated denial of her symptoms and presented a significant barrier to her treatment and recovery. Dr. Sylvester concluded that Ms. Shrader's poor judgment and decision-making detrimentally affected her ability to practice nursing. Specifically, Ms. Shrader's judgment in attempting to practice nursing while impaired, her lack of insight into her illnesses, her inability to follow treatment recommendations, and her disagreement with medical professionals showed poor judgment. Poor judgment can affect decision-making while practicing nursing, especially in a crisis situation. Dr. Sylvester concluded that Ms. Shrader was unable to practice nursing with reasonable skill and safety by reason of her depression, use of alcohol, opioids, and benzodiazepines, lack of insight into her symptoms, and poor judgment. In order for Ms. Shrader to be able to practice nursing with reasonable skill and safety to patients, she must: undergo treatment at a residential treatment center; enter into an IPN monitoring agreement; and submit to a hair analysis drug screening test. These steps are essential to Ms. Shrader's recovery and to regaining the ability to practice nursing with reasonable skill and safety to patients. There is no evidence that Ms. Shrader has taken any of these steps. Ms. Shrader is unable to practice nursing with reasonable skill and safety to patients.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Health, Board of Nursing, enter a final order: finding that Respondent, Tonya L. Shrader, R.N., violated section 464.018(1)(j); requiring her to undergo an IPN evaluation; imposing a suspension of her license until such time as she undergoes an IPN evaluation; requiring compliance with IPN recommendations, if any; requiring the payment of an administrative fine in the amount of $250.00; and awarding costs for the investigation and prosecution of this case, as provided in section 456.072(4) to the Department. DONE AND ENTERED this 29th day of July, 2015, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of July, 2015.
The Issue The issue is whether Respondent properly reclassified Petitioner's position as a Senior Management Analyst Supervisor from career service status to selected exempt status pursuant to Sections 110.205(2)(x) and 447.203(4), Florida Statutes (2001).
Findings Of Fact Petitioner worked for Respondent for approximately 30 years. He was a Board Certified Behavior Analyst and had training as a Risk Manager. During his state employment, Respondent became known as Respondent's expert for the Baker Act, Chapter 394, Part I, Florida Statutes (Baker Act). The Baker Act sets the standard in Florida for determining whether people can be involuntarily examined and treated within public and private mental health facilities. Petitioner's work as Respondent's Baker Act expert involved very independent work. He performed extensive research related to the laws of other states in the mental health area. He analyzed and made recommendations on subjects such as misuse of seclusion and restraints, the absence of documentation or doctor's orders, and the availability of medication upon release from a mental health facility. Petitioner's research and review of national accreditation standards led to the development of standards for state-wide Baker Act procedures and associated clinical care in state-run mental health receiving and treatment facilities. Ensuring compliance with these procedures and/or standards impacted state employees administering state facilities. Petitioner reviewed professional journals to learn federal block grant requirements. Petitioner's research and recommendations often resulted in proposed amendments to state law and associated Florida Administrative Code rules. Petitioner's assignments included answering constituent requests about the Baker Act from stakeholders on behalf of legislators and the Governor's Office. He conducted public hearings on the subject and gathered comments from a variety of sources, including but not limited to, the Florida Psychiatric Society, the Florida Psychological Society, the National Alliance on Mental Illness, the Advocacy Center for Persons with Disabilities, the Florida Council for Community Mental Health, and the Florida Alcohol and Drug Abuse Association. In other words, Respondent relied on Petitioner to answer inquiries about the Baker Act from the following: (a) families with members who have mental illness; (b) Respondent's district staff members; (c) the staff members of private provider agencies; (d) labor unions; (d) trade associations; (e) the judiciary; (f) law enforcement; and (g) legislative staff. To say the least, Petitioner's duties regarding the Baker Act were not of a routine clerical or administrative nature. Sometime after 1997, Respondent reorganized its adult mental health unit into two sections. The state mental health treatment facilities constituted one section consisting of six or seven state-operated or state-contracted facilities for people needing long-term care. The other section consisted of community mental health facilities that provided mental health services to people in communities, including people in crisis or with forensic involvement. After the reorganization, Petitioner worked primarily in the adult community mental health section with private providers. Petitioner worked with Ron Kizirian, his counterpart in the state mental health treatment facilities section. Petitioner used his Baker Act expertise, working as a team with Mr. Kizirian, to coordinate and address all issues state-wide regarding the Baker Act. Respondent's staff generally considered the adult community mental health services to be more progressive in attempting to provide patients with appropriate services. The state institution services were typically characterized as reactive, custodial, and generally, not positive. Petitioner's duties after the reorganization included explaining the things he did in the community side so that the institutional side would understand the concepts and issues. At the time of the reorganization, there were approximately 550 to 600 private, not-for-profit community mental health providers with state contracts. The adult community mental health section managed these contracts. Petitioner's duties included engaging in preliminary contract discussions with private providers, clarifying issues, and generally participating in the development of the contracts and their associated budgets and grants. He also was involved in recommending amendments to the contracts. As a contract manager, Petitioner monitored the activities of private providers. He initiated corrective action procedures. Petitioner's duties included the following: (a) making sure private contractors stayed within their budgets; (b) ensuring that private contractors agreed to performance standards; (c) pre-auditing the vouchers of vendors; and (d) submitting vouchers for payment. Petitioner's job included investigating high profile events on Respondent's behalf. For instance, Petitioner was sent to investigate alleged abuses in crisis stabilization units in Orlando, Florida. Petitioner would then draft a report for his superiors. Petitioner would often represent his superiors in meetings. Petitioner also performed as acting supervisor in the absence of his immediate supervisor. On or about October 1, 2000, Petitioner was a career service employee, serving as an Operations and Management Consultant. On March 6, 2001, Respondent changed the title of Petitioner's position to Senior Management Analyst II and then back to Operations and Management Consultant on the same day. On March 16, 2001, Petitioner's position changed again to Senior Management Analyst II. On June 27, 2001, and effective July 1, 2001, Petitioner's position title was reclassified to Senior Management Analyst Supervisor, a selected exempt service position. Petitioner was serving in that capacity when Respondent terminated his employment on December 3, 2002. Petitioner never supervised any other employees except to the extent that he served as acting supervisor in his immediate supervisor's absence. He signed a performance evaluation on March 27, 2002, indicating that critical elements involving directing leadership, staffing, performance appraisal/feedback and discipline administration did not apply to his performance for the rating period from October 30, 2001, to March 6, 2002. Petitioner performed the same duties and functions before and after reclassification from career service to selected exempt services. At the time of reclassification, Petitioner inquired of his immediate supervisor why Respondent changed his position from career service to selected exempt service. The immediate supervisor referred Petitioner's inquiry to next higher level supervisor who advised Petitioner not to challenge the determination but to "just keep his job." During the discovery phase of this proceeding, Respondent contended that Petitioner's position was reclassified for the following reason: Petitioner's position was reclassified to Select Exempt Service because his position was managerial with [sic] the meaning of Section 447.203(4), Florida Statutes. Petitioner's duties and responsibilities as Senior Management Analyst Supervisor was not of a routine, clerical or ministerial nature and required the exercise of independent judgment and the position also required the Plaintiff [sic] to develop performance guideline for the state mental health facilities, supervise adult mental health staff and facilitate resolution of complex programmatic, management, administrative or regulatory issues affecting state mental health facilities and districts. During the discovery phase of this proceeding, Respondent produced a generic selected exempt service position description for a Senior Management Analyst Supervisor. The position description contains the duties and responsibilities for senior staff in Respondent's state mental health facilities section and Respondent's adult community mental health facilities section. The position description sets forth some of Petitioner's duties relative to the Baker Act for state-wide public and private mental health institutions and/or facilities and relative to other mental health issues in adult community mental health facilities as follows: (a) provides consultation to the state mental health treatment facilities and districts on operational and programmatic mental health system issues; (b) facilitates resolution of complex programmatic, management, administrative or regulatory issues affecting state mental health treatment facilities and districts; (c) develops/coordinates development of performance guidelines for state mental health treatment facilities; (d) reviews/analyzes data and develops written reports as needed; (e) coordinates or participates as a member of various workgroups and project teams to address issues affecting provision of mental health services within the state; (f) assists with negotiating or developing contracts with private providers as needed; (g) prepares various reports and correspondence; (h) assists with the development of budget and rate amendments for mental health entities; (i) develops and utilizes consultant expertise as need in various projects; (j) researches information regarding mental health programs/systems; and (k) provides on-site visits to districts and state facilities to provide technical assistance regarding administrative and/or programmatic issues.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent enter a final order finding that Petitioner's position of Senior Management Analyst Supervisor was that of a select exempt employee. DONE AND ENTERED this 3rd day of March, 2008, in Tallahassee, Leon Country, Florida. S SUZANNE F. HOOD 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 3rd day of March, 2008. COPIES FURNISHED: Jerry F. Traynham, Esquire Patterson & Traynham 315 Beard Street Tallahassee, Florida 32315-4289 Juan Collins, Esquire Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Robert A. Butterworth, Secretary Department of Children and Family Services Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John J. Copelan, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether FPSS Report No. 96-130813 should be amended or expunged, as requested by Respondent.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: South Florida Evaluation and Treatment Center (SFETC) is a state-operated facility that provides mental health services to forensic patients. Respondent was formerly employed at SFETC. He began his employment at SFETC in October 1992, after graduating from Bethune-Cookman College in Daytona Beach, Florida, where, before sustaining a serious knee injury, he played offensive and defensive tackle on the football team. His employment at SFETC was terminated in August 1997, as a result of an incident at the facility which occurred on December 2, 1996. At the time of the incident, Respondent was working the 7:45 a.m. to 4:15 p.m. shift as a UTR (Unit Treatment Rehabilitation) Specialist3 responsible for assisting and monitoring the activities of patients in Unit Seven South (which is located on the seventh floor of the facility). One of these patients was R. P. R. P. is short and stocky. He is considerably smaller (in terms of both height and girth) than Respondent. At the time of the incident R. P. was on medication that made him more sluggish than he otherwise would be. The incident occurred in the recreational therapy yard at approximately 3:30 p.m. when Respondent was escorting R. P. and other patients back to the unit and noticed that R. P. was not wearing his identification badge. Respondent located the identification badge in R. P.'s pocket. As Respondent was reaching into R. P.'s pocket, R. P. grabbed the badge and threw it on the ground. After picking up the badge, Respondent attempted to pin it on R. P.'s shirt. R. P. resisted Respondent's efforts and the badge again wound up on the ground. Respondent, with his back to R. P., bent down to pick up the badge a second time. As Respondent was bending down, R. P. jumped on Respondent's back. Concerned that he was in a vulnerable position, Respondent stood up quickly, causing R. P. to fall and hit the back of his head on the ground. Respondent did not intend to harm or injure R. P. He was simply trying to protect himself. While it is unfortunate that R. P. was injured as a result of the incident, it has not been shown that, in quickly standing up when R. P. jumped on his back, Respondent breached any standard of care that a UTR Specialist with his training and experience was required to follow. R. P. (who was bleeding from the back of his head) was taken in a wheelchair to the facility's medical clinic where his wound was closed (with sutures) and bandaged. Before leaving work that day, Respondent provided his supervisor with a written report of the incident in which he and R. P. had been involved earlier that day in the recreational therapy yard. In his report, Respondent stated that R. P. had hit the back of his head on a nearby wall. In making this statement (which was inaccurate inasmuch as R. P. had hit the back of his head, not against the wall, but on the ground), Respondent was relying on what someone else had told him. He himself had not seen R. P. fall. By the time he had stood up and turned around, R. P. had already landed on the ground.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order granting Respondent's request for amendment or expunction and reclassifying FPSS Report No. 96-130813 as "unfounded." DONE AND ENTERED this 22nd day of June, 1998, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of June, 1998.
The Issue Whether the Department should issue certificate of need number 4502 to construct and operate a fifty-bed long-term psychiatric hospital in Leon County, Florida, to HCAC?
Findings Of Fact HCAC is a corporation formed by Anthony Estevez for the purpose of developing and operating a long-term psychiatric facility in Leon County, Florida. The facility was to be known as HCAC psychiatric Hospital of Leon County. Mr. Estevez owns 100 percent of the stock of HCAC. The Department is the state agency in Florida authorized to issue certificates of need for long-term psychiatric facilities. TMRMC is a general acute care hospital located in Tallahassee, Leon County, Florida. TMRMC operates a free- standing short-term psychiatric facility in a two-story, approximately 45,000 square foot, structure located within a block and a half from the main hospital. TMRMC's psychiatric facility is licensed for sixty beds. At present, forty-five of its beds are actually open, with fifteen beds in each of three units. One unit is available for adult patients (including geriatric patients), one is available for adolescent patients and one is available for an open adult unit. The other fifteen beds are available but are not staffed because of a lack of patients. Apalachee is a private, non-profit corporation. Apalachee provides comprehensive community mental health services to Franklin, Gadsden, Jefferson, Leon, Liberty, Madison, Taylor and Wakulla Counties. Apalachee was established consistent with State and federal guidelines to provide a variety of mental health Services. On March 17, 1986, a Letter of Intent was filed with the Department notifying the Department of Mr. Estevez's intent to apply for a certificate of need in the March 16, 1986, batching cycle. This Letter of Intent was filed within the time requirements of Florida law. On April 15, 1986 Estevez filed an application for a certificate of need for a comprehensive, free-standing, ninety-bed long-term psychiatric facility to be located in Leon County, Florida. Leon County is located in the Department's District 2. District 2 is made up of Bay, Calhoun, Franklin, Gadsden, Gulf, Jackson, Jefferson, Holmes, Leon, Liberty, Madison, Taylor, Wakulla and Washington Counties. Franklin, Gadsden, Jefferson, Leon, Liberty, Madison, Taylor and Wakulla Counties make up Subdistrict 2B. The other Counties make up Subdistrict 2A. HCAC's application was filed with the Department and the District 2 local health council. In a letter dated May 15, 1987, the Department requested additional information from HCAC. The information requested by the Department was provided by HCAC on or about June 19, 1986 and June 23, 1986. On September 23, 1986, the Department issued a State Agency Action Report partially approving HCAC's certificate of need application. HCAC was notified of the Department's decision and was issued certificate of need #4502 by letter dated September 30, 1986. HCAC had sought approval to construct a ninety-bed facility providing specialty long-term psychiatric services for the chronically mentally disturbed; patients with a ninety-day average length of stay. The facility was to provide care to adolescents, adults and geriatrics. Certificate of need #4502 authorized HCAC to construct a fifty-bed long-term adult, geriatric and adolescent psychiatric hospital in Leon County. The Department approved the facility because of its perception that there is no long-term psychiatric facility serving the geographic area proposed by HCAC to be served. By letter dated November 13, 1987, the Department issued an amended certificate of need #4502 to HCAC restricting the services to be provided to adult and geriatric long-term psychiatric services. HCAC intends on using thirty-six beds for adults and fourteen beds for geriatric patients. HCAC did not contest the Department's reduction in the size of the approved facility or the limitation of the scope of services to adult and geriatric patients. At the formal hearing HCAC presented evidence to Support the approved fifty-bed facility Serving only adults and geriatrics. HCAC has not contested the Department's decision to only partially approve HCAC's application. Supporting documentation took into account the smaller size of the approved facility. No substantial change in the scope or emphasis of the facility was made by HCAC other than the elimination of adolescent Services. HCAC has projected an average occupancy rate of 80 percent for the third year of operation. Because of the failure to prove that there is a need for an additional fifty long-term psychiatric beds for District 2, HCAC has failed to prove that this projection is reasonable. As of the date of the Department's initial decision and at the time of the formal hearing of these cases Rivendell Family Care Center (hereinafter referred to as "Rivendell") an eighty-bed long-term-psychiatric free-standing hospital located in Panama City, Bay County, Florida, had been open for approximately six weeks. Rivendell's occupancy rate at the time of the formal hearing was approximately twenty-four percent. Long-term psychiatric services mean hospital based inpatient services averaging a length of stay of ninety days. Long-term psychiatric services may be provided pursuant to the Department's rules in hospitals holding a general license or in a free-standing facility holding a specialty hospital license. Generally, the chronically mentally ill constitute an under-served group. In order to provide a complete continuum of care for the mentally ill, in-patient hospital treatment, including twenty-four hour medical care and nursing services and intensive resocialization or teaching of resocialization skills, should be provided. The Department has not established a standard method of quantifying need for long-term psychiatric beds in Florida. The Department's approval of the additional long- term psychiatric beds and facility at issue in this proceeding and the Department's and HCAC's position during the formal hearing that there is a need for HCAC's facility was based generally upon their conclusion that there is a "lack of such a facility to serve the geographic area." During the formal hearing, the Department further justified the need for the facility as follows: Basically it was felt that given the geographic distance or distances between this area, the eastern portion of District II, and the closest facilities, meaning licensed hospitals or facilities authorized by a Certificate of Need to offer long-term adult psychiatric services in a Chapter 395 licensed hospital, that there probably should be one here of a minimal size because we were not firm in, or in surety of the number of patients who might need the service in this area. But we thought that there should be at least a minimally sized long-term psychiatric hospital in this area to serve this area. HCAC and the Department failed to prove that there is a need for an additional fifty long-term psychiatric beds in District 2. At best, HCAC and the Department have relied upon speculation and assumptions to support approval of the proposed facility. In order to prove need, the characteristics of the population to be served by a proposed health service should be considered. A determination that there is a need for a health service should be based upon demographic data, including the population in the service area, referral sources and existing services. HCAC and the Department did not present such evidence sufficient enough to Support the additional fifty beds at issue in this proceeding. HCAC did not use any need methodology to quantify the gross need for long-term psychiatric beds in District 2. Nor did HCAC or the Department present sufficient proof concerning existing services, the population to be served, the income or insurance coverage of the Service area population or actual service area referral patterns. In its application. HCAC premised its proposal, in part, on the assumption that "the Leon County area is an undeserved area with residents being referred to facilities long distances away." HCAC exhibit 2. The evidence does not support this assumption. HCAC also premised its proposal upon its conclusion that it would receive patient referrals from existing institutions. The evidence failed to support this conclusion. HCAC also premised its proposal upon the fact that long-term psychiatric services have been designated as a licensure category by the Department. This does not, however, create a presumption that there is a need for such services in a particular area. Based upon the evidence presented at the formal hearing concerning one methodology for quantifying the need for long-term psychiatric beds, there may already be a surplus of long-term psychiatric beds in District 2. Such a surplus of beds may exist whether State hospital beds and ARTS and GRTS program beds are considered. The methodology is based upon national length of stay data for 1980 which was obtained from the National Institute of Mental Health. The methodology did not take into account more current data or Florida specific data. Therefore, use of the methodology did not prove the exact number of long- term psychiatric beds needed for District 2. Although the weight of the evidence concerning the use of the methodology failed to support a finding as to the exact number of long-term psychiatric beds needed in District 2, its use was sufficient to support a finding that there may be a surplus of beds already in existence. The methodology further supports the conclusion that HCAC and the Department have failed to meet their burden of proving that there is a need for the proposed facility. The weight of the evidence failed to prove whether long-term inpatient psychiatric services, other than those provided at State hospitals, are "within a maximum travel time of 2 hours under average travel conditions for at least 90 percent of the service area's [District 2] population." The closest long-term inpatient psychiatric facility [other than a State hospital], Rivendell, is located in Panama City, Bay County, Florida. This facility is located in Subdistrict 2A. There is no facility located in Subdistrict 2B. Rivendell is located on the western edge of Subdistrict 2B, however. The weight of the evidence failed to prove that this facility is not within a maximum travel time of 2 hours under average travel conditions for at least 90 percent of District 2's population. On page seven of the State Agency Action Report approving Rivendell, the Department indicated that "[t]he proposed location insures that 90 percent of the District I and District II population will have access within two hours travel time." This determination was made prior to the initial approval by the Department of HCAC's proposed facility. If the Florida State Hospital at Chattahoochee (hereinafter referred to as "Chattahoochee"), which is located in District 2, is taken into account, long-term psychiatric services are available within a maximum travel time of 2 hours under average travel conditions for a least 90 percent of District 2's population. Chattahoochee provides long-term inpatient psychiatric hospital care to indigent and private pay patients. The quality of cafe at Chattahoochee is good and a full range of therapeutic modalities typically available at other psychiatric hospitals are available. HCAC and the Department have suggested that there is need for the additional fifty beds at is sue in these cases because of their conclusion that 90 percent of the population of District 2 is not within two hours under average travel conditions of long-term psychiatric services. The failure to prove this conclusion further detracts from their position as to the need for the proposed facility. HCAC exhibit 8 is a copy of the goals, objectives and recommended actions contained in the 1985-87 Florida State Health Plan relating to mental health facilities. The evidence in this proceeding failed to support a finding that HCAC's proposed facility will enhance these goals, objectives and recommended actions. Goal 1 of the 1985-87 Florida State Health Plan is to "[e]nsure the availability of mental health and substance abuse services to all Florida residents in a least restrictive setting." Objectives 1.1, 1.2 and 1.4, and the actions recommended to achieve these objectives are not applicable to HCAC's proposed facility. Objective 1.3 provides that additional long-term inpatient psychiatric beds should not be approved in any district which has "an average annual occupancy of at least 80 percent for all existing and approved long-term inpatient psychiatric beds." Goal 2 of the 1985-87 Florida State Health Plan is to "[p]romote the development of a continuum of high quality, cost effective private sector mental health and substance abuse treatment and preventive services." The objectives and recommended actions to achieve this goal are not applicable to HCAC's proposed facility. Goal 3 of the 1985-87 Florida State Health Plan is to "[d]evelope a complete range of essential public mental health services in each HRS district." The objectives and recommended actions to achieve this goal are not applicable to HCAC's proposed facility. The Florida State Plan for Alcohol, Drug Abuse and Mental Health Services does not specifically deal with private long-term psychiatric services. Instead, it relates specifically to treatment in the state mental health treatment facilities. The applicable district mental health plan does not specifically address long-term psychiatric services. The plan does, however, recommend that new facilities should indicate a commitment to serving the medically indigent. HCAC has agreed to provide 5.6 percent of its patient days for indigent care. HCAC's commitment to provide 5.6 percent of its patient days for indigent care is consistent with this objective. Mental Health District Boards have been abolished. The District 2 Alcohol, Drug Abuse and Mental Health Planning Council, however, has published the Alcohol, Drug Abuse, and Mental Health 1986-89 Provisional District Plan. It is acknowledged in this Plan that deinstitutionalization and the provision of the least restrictive means of treatment should be promoted. The use of long- term psychiatric inpatient beds does not promote this philosophy. If a patient is not admitted as part of the 5.6 percent indigent commitment of HCAC and cannot pay the $10,500.00 per month admission charges, HCAC will not admit the patient. Additionally, if a patient is admitted and runs out of funds to pay the daily charges and is not part of the 5.6 percent indigent commitment, the patient will be transferred to another facility. HCAC's facility will be accessible to all residents who can pay for their services or who are part of the 5.6 percent indigent commitment of HCAC. The provision of 5.6 percent indigent care is adequate. HCAC will provide non- discriminatory health care services, to those indigent patients who are covered by HCAC's 5.6 percent commitment. The Counties which make up Subdistrict 2B, other than Leon County, are below the average national and State poverty levels. In most of the Counties, twenty percent of the population have incomes below the poverty level. HCAC has not managed any type of psychiatric hospital and currently has no employees. The proposed facility is to be managed by Flowers Management Corporation (hereinafter referred to as "Flowers"). Flowers is a psychiatric management company that has been in operation since 1984. Mr. Estevez owns fifty-one percent of the stock of Flowers and is the Chairman of the Board. Flowers is operating five Psychiatric/substance abuse facilities: three hospital based and two free-standing pychiatric/chemical dependency facilities. The staff and faculty of Flowers has a strong background in the management of psychiatric facilities. Flowers has no experience in the management of a long-term psychiatric facility. Mr. Nelson Elliot Rodney, Flowers' Regional Vice President, will be ultimately responsible for the management of the proposed facility. The administrator of the facility will report to Mr. Rodney. Mr. Rodney will seek to implement the goals outlined in HCAC's certificate of need application for the proposed facility. Mr. Rodney has not designed a psychiatric hospital. Nor has Mr. Rodney worked at or administered a long- term psychiatric hospital. The overall treatment plan as presented in HCAC's certificate of need application and as presented at the formal hearing lends itself to the development of a good program for long-term psychiatric care. HCAC has associated itself with experts in long-term psychiatric care in order to develop a detailed plan specifically addressing the treatment needs of long-term psychiatric patients. HCAC has the ability to, and will, provide good quality patient care. Apalachee provides certain programs in Subdistrict 2B which provide alternatives to long-term psychiatric hospitalization: the Geriatric Residential Treatment System (hereinafter referred to as "GRTS") and the Adult Residential Treatment System (hereinafter referred to as "ARTS"). Apalachee's GRTS program, which serves Individuals fifty-five years of age and older, contains a residential component with a total capacity of Seventy geriatric beds. A wide variety of services are provided as part of the GRTS program, including day treatment and case management components. When Apalachee's ARTS program is fully implemented there will be a total of one hundred sixty-three beds available for the care on long-term mentally ill adults and geriatrics within Subdistrict 2B. The ARTS program serves adults who are eighteen to fifty-four years of age. Apalachee's GRTS and ARTS programs do not provide the identical services provided in a free-standing long-term psychiatric hospital. The programs do provide some identical or similar services, and, to that extent, the programs complement the continuum of psychiatric care available. To the extent that they provide the same type of services, Apalachee's GRTS and ARTS programs serve as alternatives to HCAC's proposed facility. There is a national shortage of registered nurses. This shortage is particularly acute with regard to psychiatric nurses. TMRMC has a current shortage of three registered psychiatric nurses, three part-time psychiatric registered nurses, seven flex positions for psychiatric nurses, one full- time nurse technician position and one mental health worker. TMRMC has had difficulty, despite adequate efforts to recruit, recruiting for its psychiatric facility since it opened. It has never been fully staffed with psychiatric nurses. There is also a shortage of occupational therapists. TMRMC has had an occupational therapist vacancy for seven months. Mr. Rodney will be responsible for the recruitment of the necessary personnel for the proposed facility. Mr. Rodney indicated that he would utilize recruitment methods similar to those used by TMRMC. Mr. Rodney will also use his experience and contacts in the Dade County, Florida area. HCAC's salary package is reasonable and HCAC will provide adequate in- service training programs. Although HCAC will have difficulty in attracting qualified staff, just as TMRMC has had, it will be able to obtain adequate staff for the proposed facility. HCAC may do so, however, at the expense of existing health care providers. Apalachee provides the following programs in District 2: Wateroak--A sixteen-bed long-term psychiatric hospital for the treatment of children and adolescents. It is a licensed Specialty hospital; In November of 1987, Apalachee began construction of an acute care facility, which will provide inpatient short- term psychiatric services; Case Management Services--Case management services, which include supportive counseling, medication therapy, assistance with transportation and home visitation, are provided to the chronically mentally ill on an outpatient basis. The Services are to be provided where the patients reside; Hilltop--A sixteen-bed residential treatment center. Hilltop is a group home living facility for adults eighteen to fifty-four years of age; Chemical Dependency Program--Individual, group and family counseling and educational services on an outpatient basis for Individuals with suspected substance abuse problems; Emergency Services--Year-round, twenty-four hour a day telephone or face-to-face evaluations to persons with an acute disturbance or who are in need of evaluation for determination of the proper level of care; PATH--Positive Alternative to Hospitalization Program, a crises stabilization unit developed as an alternative to short-term psychiatric care; PPC--Primary Care Center, a nonhospital medical detoxification unit providing short-term detoxification care to alcohol abusers; Gerontological Programs--Made up of the GRTS program and an outpatient component. Through the outpatient component, Apalachee uses its outpatient clinics in each County in its service area to provide linkage for therapy and medication and supportive counseling to geriatrics; ARTS Program; and Designated Public Receiving Facility--Apalachee is the designated public receiving facility for Subdistrict 2B. It screens and evaluates every person admitted to Chattahoochee. Apalachee's adult mental health programs which are available to indigent patients, directly impact both long and short-term hospital utilization, lowering such utilization. For example, before establishing the services provided to suspected substance abusers, many patients were placed in long-term psychiatric hospitals. Referrals to TMRMC of patients under the Baker Act have been reduced from an average of fifteen to eighteen patients per day to an average of one-half to one person per day. There has also been a decrease in admissions to Chattahoochee since Apalachee established the GRTS and ARTS programs. At the time of the formal hearing of these cases TMRMC had a census of only twenty-eight adult patients in its short-term psychiatric facility. TMRMC's census has been low for the past two years. TMRMC's short-term psychiatric facility is operating at a loss. Any further loss of patients would have a serious impact on the facility. From October 1, 1986 to July 31, 1987, TMRMC lost $127,337.00 on its short-term psychiatric facility. For the twelve-month period from October 1, 1986 to October 1, 1987, it is reasonably estimated that TMRMC will lose $139,722.00. TMRMC would like to open the fifteen-bed unit (which is presently closed) of its short-term psychiatric facility. It must increase its census before it can do so. It has been attempting to increase its census by sending out mail-outs and newsletters, sponsoring educational programs advertising, inviting health care professionals to the facility and initiating clinical affiliations with university programs. Rivendell is an eighty-bed long-term psychiatric facility. Forty of its eighty beds are licensed for adults and geriatric patients. The other forty beds are licensed for children and adolescent patients. Rivendell's census at the time of the formal hearing of these cases was six to eight patients. Chattahoochee has a total of 823 long-term psychiatric beds for adults and geriatrics. There are no like and existing long-term psychiatric beds for adults and geriatrics located in Subdistrict 2B. The only like and existing long-term psychiatric beds for adults and geriatrics available to residents of District 2 are located in Subdistrict 2A at Rivendell. The proposed HCAC facility will result in increased competition in District 2. This increase in competition will have an adverse impact on suppliers of inpatient psychiatric services. Admissions to the proposed facility will likely include patients who would be more appropriately hospitalized in a short-term facility. Although HCAC has no plans to admit short-term patients and will attempt to prevent such admissions, mental health professionals cannot accurately predict the length of a patient's stay upon admission. The determination will often require an in- hospital evaluation of the patient. Therefore, patients more appropriately treated in a short-term facility such as TMRMC will end up spending some tide in HCAC's proposed facility. TMRMC will lose patient days if the HCAC facility is constructed. This will adversely affects TMRMC's occupancy rate, which is already low, and cause further losses in revenue. Given the surplus of long-term psychiatric beds in District 2 and the low occupancy of short-term beds in Subdistrict 2B, it will difficult for HCAC to continue in existence without admitting short-term psychiatric patients. The operation of the proposed HCAC facility will also adversely affect the availability of nurses to staff Apalachee's acute care facility and other Apalachee operations and TMRMC's ability to staff its short-term psychiatric facility. Even the loss of one more full-time registered nurse at TMRMC could cause critical staffing problems. Because of the lack of need for fifty additional long-term psychiatric beds in District 2, HCAC's proposed facility would also have an adverse affect on Rivendell. The proposed facility will provide internships, field placements and semester rotations for psychiatrists, psychologists, social workers, nurses and counselors. The facility will work closely with community agencies and community personnel in developing, operating and providing resources for training for community groups, patient groups and personnel. In- service training will be open to selected professionals in the community. HCAC's proposed facility will have a positive effect on the clinical needs of health professional training programs and schools for health professions in District 2. The-total estimated cost of the proposed project approved by the Department is $4,108,000.00. HCAC plans on financing 100 percent of the cost of the project with a mortgage loan at 13 percent interest. Mr. Estevez has had experience in obtaining financing for health care and other commercial projects. In 1987 alone, Mr. Estevez was personally involved in over $20,000,000.00 of financing. Short-term financial feasibility means the ability to successfully fund a project to ensure that the project will succeed in the short-term. To achieve short-term financial feasibility, there must be sufficient funds to cover any losses incurred during the initial operating period and to cover any short fall in working capital necessary to fund the project. NCNB, a financial institution with which Mr. Estevez has had, and continues to have, a long and profitable association, has indicated interest in financing the proposed project. A financing letter to this effect has been provided. Although the letter does not specifically refer to the proposed project, the weight of the evidence supports a finding that NCNB would be willing to finance the project. In light of Mr. Estevez's experience in obtaining commercial financing and his relationship with NCNB, it is reasonable to conclude that 100 percent financing of the project can be obtained at 13 percent interest. The proposed project will have a negative cash balance at the end of its first and second year of operation. Given Mr. Estevez's commitment to the project, sufficient funds for capital and operating expenses will be available to cover these negative cash balances. Although Mr. Estevez did not provide a separate audited financial statement, the weight of the evidence proved that Mr. Estevez has the ability to provide the necessary capital. In the short-term, HCAC's proposal is financially feasible. HCAC has projected that it will operate at an average length of stay of ninety days. It will charge an all-inclusive $350.00 per day for its long- term psychiatric services, including all ancillary services. Initially, HCAC projected the following payor mix: Medicaid of 30 percent; Medicare of 20 percent; and insurance and private pay of 50 percent. HCAC was informed by the Department that Medicaid reimbursement was not available for psychiatric services in private free-standing psychiatric hospitals. Consequently, HCAC modified its payor mix by eliminating Medicaid from its payor mix. At the formal hearing of this case, HCAC projected the following payor mix: Medicare of 3.3 percent; indigent of 5.6 percent; and insurance and private pay of 91.1 percent. Medicare reimburses for psychiatric care in a limited fashion. That is why HCAC reduced its projected Medicare reimbursement to 3.3 percent of its total revenue. Medicare patients generally use the majority of their lifetime reserve Medicare reimbursable days for other types of care, including short-term psychiatric care and acute care. Persons in need of long-term psychiatric care generally have a poor work history because of their illness interferes with their ability to obtain and maintain employment. Patients have few economic resources of their own. A patients family structure is often disorganized as a result of the patient's episodes of illness. These episodes strain the family relationship. Persons in need of long-term psychiatric care are often unable to pay for needed services and their family members are either unable or unwilling to support the person. There is no facility in Florida with a payor mix of 91 percent insurance and private pay. HCAC's projection of 91.1 percent insurance and private pay is not a reasonable projection. This finding of fact is based upon the high poverty levels within Subdistrict 2B, the lack of need for additional long-term psychiatric beds and the failure to prove that insurance benefits for long-term care are available in District 2. The State of Florida, Employees Group Health Self-Insurance Plan does not provide coverage for specialty hospitals, such as HCAC's proposed facility. The State of Florida provides 42 percent of the employment in Leon County. Insurance provided by other employers in the area limits coverage for inpatient psychiatric care to thirty to thirty-one days. These benefits are often exhausted before long- term care becomes necessary. In order to achieve a 91.1 percent insurance and private pay payor mix, 80 percent to 100 percent will have to be private pay patients. Such a high percentage of private pay patients is not reasonable. The effective buying income in Leon County in 1986 was approximately $22,600.00. In District 2 it was $18,700.00. Madison County and Jefferson County are among the counties heading Florida's poverty rate. Taylor County is the ninth poorest county in the State. HCAC has projected a 95 percent occupancy rate for its proposed facility within six months of its opening. HCAC has failed to prove that this occupancy rate can be achieved. In light of the high poverty rate in the area, the lack of need for long-term psychiatric services and the inability of patients to pay for such services, this projected occupancy rate is not reasonable. In light of HCAC's failure to prove that there is a need for the proposed facility or that its payor mix is reasonable, HCAC has failed to demonstrate that its occupancy projection is achievable. HCAC has projected that 7.3 percent of its gross revenue will be deducted as revenue deductions. Included in this amount are contractual allowances, charity care and bad debts. Medicare reimburses hospitals for total costs rather than revenue or charges. HCAC, therefore, gas projected approximately $6,000.00 for the first year and $24,000.00 for second year as contractual allowances. HCAC's projection of deductions from revenue are not reasonable. Bad debt of 1.6 percent is unreasonable compared to the experience at other long- term psychiatric facilities in Florida. The $350.00 all-inclusive charge is not reasonable. This charge will not be sufficient to cover the proposed facility's costs. HCAC's projected costs for "Supplies and other" and for taxes are reasonable. HCAC has failed to prove that its proposed facility is financially feasible in the long-term. The projected and approved cost of construction is $3,965,456.00. HCAC has indicated that the facility will consist of two, one-story buildings connected by a hallway. The facility will have approximately 40,563 gross square footage. The actual site for the project has not been selected or purchased. The floor plan calls for twenty-five, semi-private rooms for patients. The patient-care building will contain four independent and secure living/program areas connecting to a central core which will contain an atrium open to the outdoors. There will be approximately 811 gross square feet per bed, which is adequate. The proposed design is reasonable. The projected completion forecast of HCAC is reasonable. The projected costs of completing the building are reasonable. The building will be built by Project Advisers Corporation (hereinafter referred to as "PAC"). PAC is a health care, commercial and residential construction company. Mr. Estevez owns 100 percent of PAC. Since 1978, PAC has been involved in the construction of St. John's Rehab Center and Nursing Home, South Dade Nursing Home, Hialeah Convalescent Center, South Dade Rehab Hospital and two psychiatric/chemical dependency hospitals for Glenbeigh Hospital. Generally, there are no differences in the construction requirements between short-term and long-term psychiatric facilities.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED the Department enter a Final Order denying the application of HCAC for a certificate of need to construct and operated a fifty-bed long-term psychiatric facility in Leon County, Florida. DONE and ENTERED this 3rd day of May, 1988, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of May, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4373 and 864374 The parties have submitted proposed findings of fact it has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommend Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. HCAC's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 5-6. The third through fourth sentence are hereby accepted. 1 and 6. 3 1 and 39. 4 6 and 9 5 7. 6 8-10, 34 and 97. 7 11. 8 11, 14 and 76. The last Sentence is not supported by the weight of the evidence 6. The last sentence is not supported by the weight of the evidence. 10 10 and 69. 11 Hereby accepted. 12 39-40. 13 These proposed findings of fact are cumulative, subordinate and unnecessary. They deal with the weight to be given to other evidence. 14 42. 15-19 Although these proposed findings of fact- are generally true, they are cumulative, subordinate and unnecessary. The first sentence is not supported by the weight of the-evidence. The rest of the proposed findings of fact are hereby accepted. Although the proposed finding of fact contained in the first sentence is generally true, it is cumulative, subordinate and unnecessary. The rest of the proposed findings of fact deal with the weight to be given to other evidence. These proposed findings of fact are not supported by the weight of the evidence. 23-26 Although these proposed findings of fact are generally true, they are cumulative, subordinate and unnecessary. 27 Although this proposed finding of fact is generally true, the weight of the evidence failed to prove that HCAC will be able to achieve its plans. 28-33 Although these proposed findings of fact are generally true, they are cumulative, subordinate and unnecessary. 34 43. 35 51. The last sentence is not supported by the weight of the evidence. 36 52. 37 53. 38 69-70. 39 72. 40 73. 41 74. 42 67. 43 68. 44 34 and 37. 45 104. 46. The first sentence is law. The last sentence is accepted in 105. 47 97 and 99-100. 48 101. 49 103. 50 102. 51 Hereby accepted. 52-53 These proposed findings of fact deal with the weight to be given other evidence. 54 78. 55 79-80. 56 79. 57-58 Not supported by the weight of the evidence. 76. The last sentence is not supported by the weight of the evidence. Not supported by the weight of the evidence. Although generally correct, these proposed findings of fact do not support HCAC's projected utilization. Irrelevant. Not supported by the weight of the evidence. Irrelevant. 65 92. 66 93. 67 94. The last two sentences are not supported by the weight of the evidence. 68 95. Not supported by the weight of the evidence. HCAC's proposed facility and TMRMC are not comparable. 71-75 Not supported by the weight of the evidence. 54 and 59. The last sentence is not supported by the weight of the evidence. The first two sentences are hereby accepted. The last sentence is not supported by the weight of the evidence. Irrelevant. 79-83 Not supported by the weight of the evidence. 84-85 Statement of law. Hereby accepted. 6 and 25. The last sentence is not supported by the weight of the evidence. 88-90 Although these proposed findings of fact are generally true, they are cumulative, subordinate and unnecessary. 91-92 Not supported by the weight of the evidence. 93 Although these proposed findings of fact are generally true, they are cumulative, subordinate and unnecessary. The last two sentences are conclusions of law. 94-95 Not supported by the weight of the evidence. Irrelevant. The first sentence is a conclusion of law. The second sentence is hereby accepted. The last sentence is irrelevant. 13. The last two sentences are conclusions of law. Irrelevant. 100-102 Hereby accepted. Not supported by the weight of the evidence. Hereby accepted. 44. The last sentence is irrelevant. 47. The last sentence is not supported by the weight of the evidence. 16. The last sentence is not supported by the weight of the evidence. 108 15. Not supported by the weight of the evidence. Irrelevant. See 23. The last sentence is not supported by the weight of the evidence. Conclusions of law. Not supported by the weight of the evidence. 114 34. 115 29. The last sentence is not supported by the weight of the evidence. 115a 30. The last sentence is not supported by the weight of the evidence. 115b-e 30. The next to the last sentence of e is not supported by the weight of the evidence. 115f Not supported by the weight of the evidence. 116-117 Not supported by the weight of the evidence. 118 Hereby accepted. 119-120 35. 121 Irrelevant. 122 33. 123-124 Irrelevant. 125-129 Not supported by the weight of the evidence. 130 3. 131 Hereby accepted. 132 64. The last sentence is not supported by the weight of the evidence. 133 See 49 and 65. 134 54. The last two sentences are not supported by the weight of the evidence. The Department's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 Hereby accepted. 2-3 8-9. 4 Not supported by the weight of the evidence. 5 13 and 25. Not supported by the weight of the evidence. Conclusion of law. 8 31. 9 Not supported by the weight of the evidence. 10-12 Irrelevant. 13 Not supported by the weight of the evidence. 14-16 Conclusions of law. TMRMC's Proposed Findings of Fact 1 1, 6 and 9-11. 2 See 6 and 9. 3 6-10. 4 76. 5 77-78. 6 79. 7 79-80. 8 Hereby accepted. 9 81. 10 82-83. 11 34 and 36. 12 36. 13 6. 14-15 39. 16 41-42. 17 2. 18 3. 19 4 and 6. 20-21 54. 22 Not Supported by the weight of the evidence. 23 54. 24 46 and 54. 25-26 54-55. 27-29 54. 30 54-55. 31 44-45, 47 and 54. 32 Hereby accepted. 33 54-55. 34 55. 35 Irrelevant. 36 56. 37 58. 38 49. 39 48. 40 50. 41-44 Although these proposed findings of fact are generally true, they are cumulative, subordinate and unnecessary. 45-46 65. 47-48 57. 49 58. 50 63-64. 51 Not supported by the weight of the evidence. 52 63-64. 53 63-64. 55 Hereby accepted. Not supported by the weight of the evidence. 56 65. 57 Not supported by the weight of the evidence. 58 25 and 59. 59 Not supported by the weight of the evidence. 60-62 Although these proposed findings of fact are generally true, they are cumulative, subordinate and unnecessary. 63 25 and 59. 64-68 Although these proposed findings of fact are generally true, they are cumulative, subordinate and unnecessary. 69 Not supported by the weight of the evidence. 70-71 27. Although these proposed findings of fact are generally true, they are cumulative, subordinate and unnecessary. Not supported by the weight of the evidence. 74 18 and 96. Irrelevant. Although these proposed findings of fact are generally true, they are cumulative, subordinate and unnecessary. 77-81 Although generally true, these proposed findings of fact are not relevant to this de novo proceeding. 82 Hereby accepted. 83 84. 84 Hereby accepted. 85-86 Irrelevant. 87 See 69 and 72. 88 94. 89 Hereby accepted. 90 74. 91 94. The last three sentences are not supported by the weight of the evidence. 92-93 Not supported by the weight of the evidence. 94-96 Although these proposed findings of fact are generally true, they are cumulative, subordinate and unnecessary. 97 19. 98-99 18. Hereby accepted. Irrelevant. Hereby accepted. 103 19. 104 Although these proposed findings of fact are generally true, they are cumulative, subordinate and unnecessary. 105 20. 106 21. 107 Hereby accepted. 108-110 See 23. 111 Not supported by the weight of the evidence. 112 85. 113 86. 114 88. 115 89. 116-118 Although these proposed findings of fact are generally true, they are cumulative, subordinate and unnecessary. 119 91. 120 90. 121 96. 122-126 Not supported by the weight of the evidence. 127 Hereby accepted. 128-129 Irrelevant. 130 22. 131 97-98. 132 99. 133-139 Not Supported by the weight of the evidence. 140 95. 141 Not supported by the weight of the evidence. 142 97. 143-146 Not supported by the weight of the evidence. Apalachee's Proposed Findings of Fact 1 6 and 8-9 2 4. 3(a)-(i)(1) 54. 3(i)(2) 44-45. 3(j) 44 and 54. 3(k) 54. 4 3. 5 1. 6 104. 7 39 and 41. 8 27 and 60. 9 25 and 59. 10(a) Not supported by the weight of the evidence. 10(b) 27. 10(c) 26. 10(d) Not supported by the weight of the evidence. 11 13. 12(a) 81. 12(b) 82-83. 13 6 76 and 87. The second, third, fifth- eighth sentences, the Second Paragraph and the last Paragraph are not Supported by the weight of the evidence. 71 and 74. Other than the first two Sentences of the first Paragraph and the first two sentences of the third Paragraph, these Proposed findings of fact are not Supported by the weight of the evidence. 16(a) 90. The Second Paragraph is not Supported by the weight of the evidence. 16(b) 88. 16(c) 94. 16(d) 76 and 95. Other than the first three sentences of the first Paragraph and the last Paragraph, these Proposed findings of fact are not Supported by the weight of the evidence. 17 48-49 and 65. The Sixth and eighth Sentences and the last Paragraph are not Supported by the weight of the evidence. 44-47 and 54. The last Sentence of the first Paragraph and the last four Sentences of the last Paragraph are irrelevant. 19 62. 19(a) 3, 23, 56-57 and 64. The Second and third Paragraph are Cumulative and unnecessary. 19(b) 63. The Second Paragraph is Cumulative and unnecessary. 19(c) Cumulative and unnecessary, 19(d) 25, 59, 62 and 66. 19(e) 65. 20 Not Supported by the Weight of the evidence or Cumulative and unnecessary, 21 39 and 41. The last Paragraph is not Supported by the weight of the evidence. COPIES FURNISHED: Jean Laramore, Esquire Anthony Cleveland, Esquire Post Office Box 11068 Tallahassee, Florida 32302 Ronald W. Brooks, Esquire 863 East Park Avenue Tallahassee, Florida 32301 Theodore E. Mack, Esquire John Rodriguez, Esquire Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700 Darrell White, Esquire Gerald B. Sternstein, Esquire Post Office Box 2174 Tallahassee, Florida 32301 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 =================================================================
The Issue The issue in this case is whether Respondent violated Section 464.018(1)(h), Florida Statutes (1997) (hereinafter, "Florida Statues"), and Florida Administrative Code Rules 59S- 8.005(1)(e)1 and 2, by diverting morphine during his care and treatment of two patients and failing to keep accurate nurse's notes. (All references to rules are to rules promulgated in the Florida Administrative Code in effect on the date of this Recommended Order).
Findings Of Fact Petitioner is the state agency responsible for regulating the practice of nursing. Respondent is licensed as a nurse pursuant to license number RN 2185632. Respondent admitted under oath at the hearing that he committed the acts alleged in the Administrative Complaint. Respondent did not overdose any patient, endanger, or neglect any patient. Respondent diverted morphine during his care and treatment of patients J.G. and R.B. at West Volusia Memorial Hospital on March 24 and 26, 1997. Respondent was addicted to morphine and diverted morphine from the two patients for self- administration. Respondent is guilty of negligent administration of morphine. Respondent self-administrated morphine that was not medically necessary. Respondent failed to keep accurate nurse's notes for patient J.G. Respondent inaccurately recorded the amount of morphine administered to patients J.G. and R.B. Respondent has voluntarily sought aggressive care and treatment for his drug addiction. Respondent is in three rehabilitation programs in Georgia. Respondent is in an intervention program for nurses ("IPN") approved by the State of Georgia pursuant to a prosecution conducted by the appropriate state agency in Georgia. He is also in a nurses anonymous program and a follow-up hospital program. Respondent is also under the regular care of a psychiatrist.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a Final Order finding Respondent guilty of violating Section 464.018(1)(h) and Rules 59S-8.005(1)(e)1 and 2, suspending Respondent's license for two years from the date of this Recommended Order, and placing Respondent on probation for two years from the end of the suspension period. The terms of probation shall include a requirement that Respondent successfully complete the IPN program in Georgia and hospital follow-up program. DONE AND ENTERED this 18th day of June, 1998, in Tallahassee, Leon County, Florida. DANIEL MANRY 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 Filed with the Clerk of the Division of Administrative Hearings this 18th day of June, 1998. COPIES FURNISHED: Marilyn Bloss, Executive Director Department of Health Board of Nursing 4080 Woodcock Drive, Suite 202 Jacksonville, Florida 32207 Angela T. Hall, Agency Clerk Department of Health 1317 Winewood Boulevard Building 6, Room 136 Tallahassee, Florida 32399-0700 Joseph S. Garwood, Esquire Agency for Health Care Administration 1580 Waldo Palmer Lane Post Office Box 14229 Tallahassee, Florida 32308-4229 Joseph Webb, pro se 2169 Turner Church Road McDonough, Georgia 30252
