The Issue Whether the license of Respondent Judith M. H. Bandlow Gioia, R.N. #26105- 2 should be suspended or revoked, or whether Respondent should be put on probation or otherwise disciplined.
Findings Of Fact During the period of time from March 1, 1978 through March 13, 1978, while employed as a Registered Nurse at Wuesthoff Memorial Hospital, Cocoa, Florida, Respondent converted to her own use on numerous occasions, a controlled narcotic drug, to wit: Demerol (meperidine) and injected herself with said narcotic on a daily basis. Respondent altered the narcotic control record in order to hide the taking of said drugs noted in the foregoing paragraph and, in some instances, failed to chart the narcotic on the patient's medication sheet or nurses notes. On or about March 13, 1978, on being confronted with the facts stated in the foregoing paragraphs 2 and 3 by the Director of Nurses, Nelda C. Mitchell, R.N., Respondent admitted her guilt and at that time gave Ms. Mitchell four ampules of Demerol 100 mg. which she had in her uniform pocket. Respondent was thereupon discharged from her position on March 13, 1978. The Petitioner, State Board of Nursing, filed an administrative complaint against Respondent on March 27, 1978 charging Respondent with unprofessional conduct and with engaging in the possession of controlled substances contrary to Chapter 464 Florida Statutes. Respondent was notified that unless she requested an administrative hearing the Board would either place the license of Respondent on probation or suspend or revoke her license as a Registered Nurse. Petitioner requested an administrative hearing. Respondent at the hearing admitted allegations one to four (4) of the administrative complaint and conceded such conduct was in violation of Section 464.21(1)(b) and 464.21(1)(d) The Respondent through her attorney, and personally, testified that she requested the hearing, not to refute the allegations of the complaint but to mitigate the action pending by the State Board of Nursing. A deposition entered into evidence by Respondent, without objection from the Petitioner, was taken on behalf of the Respondent. The witness was Cynthia H. Clowes, the therapist of Respondent when she was admitted to the Palm Beach Institute on March 16, 1978. Ms. Clowes stated that if the Respondent were to undergo therapy by a person qualified in giving therapy in addiction that at the end of two years, more or less, Respondent would be ready to be exposed to access to drugs. She did not recommend that Respondent be exposed to drugs at the time of the deposition on August 7, 1978. Ms. Clowes recommended that Respondent regularly attend Alcoholics Anonymous meetings. It was Ms. Clowes' opinion that Respondent Gioia had the capability to resume her duties as a nurse on a part-time, but not a full-time basis. The parties agreed that Michelle E. Vollard, Out-patient Therapist Substance Abuse Services, Brevard County Mental Health Center, Inc. would submit a statement to the Hearing Officer subsequent to the hearing. The letter was received December 1, 1978 in the office of the Hearing Officer and was signed by Michelle Vollard, Out-patient Therapist Substance Abuse Services and Rene S. Turla, M.D., Team Psychiatrist. The statement recommends that Ms. Gioia continue individual counselling for a period of at least a year and recommended that her access to narcotic drugs be limited, if not totally eliminated, while she is undergoing therapy. It was recommended that the Respondent attend an alcoholic orientation (education group), and an ongoing alcohol group. The Hearing Officer further finds: Subsequent to her discharge from Wuesthoff Memorial Hospital Respondent voluntarily placed herself in the Palm Beach Institute for a period of six weeks. The purpose was to seek treatment for an apparent addiction to Demerol and to alcoholic substances. After leaving the Palm Beach Institute as an impatient she returned on several occasions to consult with her therapist as an outpatient. She has attended meetings of Alcoholics Anonymous in Brevard County and has sought aid of the Brevard County Mental Health Center. Respondent is at present under stress and may take narcotic drugs without a prescrip- tion, and may also drink alcoholic beverages to excess. She should continue treatment to control alcohol consumption. Respondent should have no access to drugs prescribed for patients.
Recommendation Suspend the license of Respondent for a period of no less than two years. DONE and ENTERED this 18th day of December, 1978, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Richard A. Gescheidt, Esquire Amdur Building - Suite 2-D 40 Southeast First Avenue Boca Raton, Florida 33432 Julius Finegold, Esquire 1107 Blackstone Building 233 East Bay Street Jacksonville, Florida 32202 Geraldine B. Johnson, R.N. Investigation & Licensing Coordinator State Board of Nursing 6501 Arlington Expressway Building B. Jacksonville, Florida 32211
Findings Of Fact Petitioner, Hospital Management Associates, Inc. (HMA) filed an application in June, 1984, for a 60 bed adolescent long- term psychiatric hospital in Hillsborough County, Florida. Petitioner's Exhibit 1. A completed application was filed August 13, 1984. Petitioner's Exhibit 2. (P. PFF 1.) The proposed facility is patterned after a similar HMA facility in Arlington, Texas. The facility is proposed to be freestanding and is intended to conform to the state hospital code. The plan is to place the facility on a 10 or 15 acre tract of land. The facility will be divided into two 30 bed units, each having a 15 bed wing separated by a nursing station. T. 32- 37. Separation will be useful to separate patients by age, sex, functional levels, and treatment programs. T. 33. (The remainder of P. PFF 2 is rejected because irrelevant.) Staffing that is proposed is found on table 11, Petitioner's Exhibit 2. The staffing proposed is consistent with standards set by the Joint Commission on Accreditation of Hospitals and is similar to the Arlington, Texas, facility. T. 53. There is no evidence that this is not a reasonable level of staffing. The salary levels are reasonable. T.51. (The remainder of P. PFF 3 is rejected because not consistent with Petitioner's Exhibit 2 or T. 51-53, or irrelevant.) HMA operates hospitals, both psychiatric and acute care, in Texas and Florida. T. 25-26. (The transcript does not establish that HMA currently operates hospitals in any other states, and to this extent, P. PFF 4 is rejected.) HMA proposes to treat adolescents, ages 12 to 18. T. 35. (P. PFF 5 that HMA proposes to treat ages 10, 11, and 19, is rejected, based upon the testimony of Mr. Braeuning, and on the same basis, the proposed finding that the bulk of patients will be ages 13-17 is also rejected.) The proposed length of stay is 4 to 6 months. T. 36. The treatment program is aimed at the patient and the family unit, T. 41, and includes social work, family therapy, occupational therapy, recreational therapy, and education. T. 38, 39. Recreational facilities are proposed. T. 38. The proposed facility is planned to have three levels of security. T. 37. Treatment is planned on the behavior modification model, which uses a system of levels of reward and responsibility, and is used in both system and long term treatment. T. 37-40, 92. The length of stay is proposed to be an average of six months. T. 36. (The remainder of P. PFF 5 is rejected because not supported by the record in the form proposed.) Dr. Max Sugar is an expert in child and adolescent psychiatry. T. 84. Dr. Sugar has been asked to be a consultant for the HMA facility proposed, and may accept. T. 95. His consultation would involve program arrangement, milieu arrangements, in-service staff training, and recruitment of a clinical director. Id. (P. PFF 6.) Louis DeSonier is an expert in child and adolescent pyschology. T. 102-103. He received his doctorate in 1982. T. 101. Dr. DeSonier has been hired by HMA to develop the system proposed for this certificate of need, to implement development issues, and to evaluate the program on an ongoing basis. T. 104. He would be involved in hiring staff. T. 105. (The proposed finding that she will be involved in "setting up referral patterns within District VI" is rejected because not found in the transcript on the pages cited.) Dr. DeSonier envisioned attracting people from the adolescent psychology program at Florida State University to help develop a protocol for long term care for adolescents. T. 105. Dr. DeSonier envisioned attracting other persons to work on the project. T. 106-107. Dr. Desonier was familiar with the levels of treatment concept of treatment, T. 106-107, and this will be helpful to him in his work with this proposal. (P. PFF 7.) The Petitioner plans to monitor the quality of the programs at the proposed facility from its corporate offices, and will seek to use quality assurance programs as recommended by the Joint Commission on Accrediation of Hospitals (JCAH). T. 43. The Petitioner will seek JCAH accreditation accreditation by the National Association of Private Psychiatric Hospitals, and qualification for CHAMPUS reimbursement as a long term facility. Id. (P. PFF 9.) The Petitioner intends to locate its facility near the 1-4 and 1-75 interchange, which would provide good access from many parts of District VI. T. 58. All of District VI, and portions of adjacent Districts, are within a two hour driving time of the site proposed by the Petitioner. See finding of fact 38. The Petitioner proposes to obtain patients through contacts and marketing efforts with local practitioners, local religious counselors, and school counselors. T. 54. Free standing psychiatric hospitals are not eligible for Medicaid reimbursement, and thus Petitioner's proposed hospital will not do that type of work. T. 57. Petitioner's proposed facility is projected to do two to five percent indigent work. T. 70, 57. Petitioner expressed willingness to accept patients from the Children, Youth, and Family Program of HRS T. 54-55. The Petitioner proposes to accept up to 20 percent of state-funded patients. T. 57-58. (P. PFF 10, TH PFF 12.) 10. In a long term psychiatric facility, patients may stay six months or longer. T. 88. A short term facility deals with acute problems, and tries to discharge the patient in one to three months. T. 87. Long term facilities address long standing maladaptive behavior. T. 87. A patient requiring long term treatment can become isolated among patients in a short term facility. T. All of the ancillary services in a long term facility should be staffed and planned to provide long term continuity for the patient. T. 88-9. Over time, long term problems, which the patient may hide during short term treatment, become visible. T. 92. Progress on these problems then can be made. T. 92. An acute care general hospital is geared for acute care to a range of ages, and having a program for long-term adolescent care is potentially in conflict with these goals. T. 95 However, treatment is often the same for both long and short term patients. T. 90. Behavioral modification is used in both short and long term treatment. T. 37-40, 92. The physician. determines the length of stay, and the physician cannot tell precisely how long a patient may need to stay. T. 89-91. A patient may begin as identified for short term treatment, but may later have long term treatment needs identified. T. 90-91. The adolescent portion of the proposed psychiatric facility at University Psychiatric Center is expected to experience an average length of stay of from 45 to 60 days per patient, with the greater probability of longer lengths of stay. T. 432. The average length of stay for adolescents at Tampa Heights Hospital may be about 47 days. T. 253. Tampa Heights Hospital provides short term psychiatric services. Tampa Heights is not certified for long-term care under the CHAMPUS program. T. 253. But Dr. Rene Haney, a psychiatrist and the adolescent services chief at Tampa Heights Hospital, T. 246-247, has observed some patients staying longer than 90 days, and some of his patients have stayed more than 90 days, receiving essentially the same kind of care. T. 248-49, 255. One patient stayed over 1.4 months. T. 251. During the current fiscal year, Tampa Heights will earn approximately $4 million from adolescent Patients, and approximately 36.3 percent of that $4 million will[ be derived from adolescent patient days from patients that stay over 90 days (or $1.6 million). T. 334. (TH PFF 2.) (TH PFF 1, that Dr. Haney had a "substantial" number of patients is rejected for lack of quantifying evidence in the record.) Thus, while there are some differences between a facility devoted to short term psychiatric care and a facility intended for long term psychiatric care, there is a significant overlap with respect to the manner in which both types of facilities provide the same service for patients staying in the midrange of lengths of stay. For these patients, a short term inpatient psychiatric hospital provides a service that is the same as that provided by a long term inpatient psychiatric hospital. (P. PFF 6 and 8. the remainder of P. PFF 8 is rejected as cumulative.) A loss of as much as 10 percent of long term adolescent revenue would cause Tampa Heights to increase patient charges. T. 335. (Th PFF 2.) Given the ultimate finding that a substantial need exists for the facility proposed by the Petitioner, it cannot be concluded that Tampa Heights will in fact lose 25 percent of its adolescent patient days to Petitioner. For this reason, TH PFF 2 is rejected. Given the overlap in treatment, however, Tampa Heights would probably lose some patient days to Petitioner, but the degree of lost patient days cannot be determined on this record. Tampa Heights Hospital and University Psychiatric Center both have a substantial interest that could be affected by this proceeding. The Health Council for West Central Florida, Inc., is the local planning council for HRS District VI, which consists of Hardee, Highlands, Hillsborough, Polk, and Manatee Counties. Tampa Heights Exhibit 2. The local health council has adopted a health plan for the district, which is Tampa Heights Exhibit 2. The local health plan, as corrected, shows that there are expected to be 134 excess psychiatric beds in the District by 1990. Ibid. at page 119; T. 286. Additionally, the District has a number of non-hospital residential beds, some of which are exclusively for adolescents and children, and others of mixed ages. Tampa Heights Exhibit 2, page 113; T. 311. The local health plan adopted a policy to encourage use of the least restrictive, non- hospital facility wherever possible. Tampa Heights Exhibit 2, page 112-114; T. 303-305. Thus, in these respects, the proposal of the Petitioner is not consistent with the local health plan. (TH PFF 4 and 13.) The local health plan estimates of need are not consistent with actual need as will be discussed ahead. There is no direct evidence in the record of the occupancy levels of the one long term psychiatric facility in District VI, Northside Community Mental Health Center, which has 16 beds. (TH PFF 5.) An occupancy level for Northside may be inferred from the testimony of Ms. Marsha Lewis, Deputy Director of that facility. Ms. Lewis stated that the facility has 16 licensed long term beds, and ran an average length of stay of 349 days in 12 beds. This means that the facility had 4188 patient days (12 times 349) out of a possible 5840 (16 times 365), which converts to an occupancy level of 72 percent in 16 license beds. T. 320. The 1984 occupancy rates for some short term psychiatric facilities in District VI were below 80 percent, and were as follows: 66 percent, Tampa Heights Hospital; Memorial, 76 percent Lakeland Regional, 54 percent; Winter Haven, 71 percent; Palmview, 27 percent. T. 213-216, 117. (The occupancy rate for Hillsborough County Hospital Authority was not provided by the witness.) (TH PFF 6 and 39.) The relevance of these figures is not clear, since the evidence does not state whether these occupancy rates are for adult psychiatric patients, adolescents, or both. The Petitioner projects that it would reach 80.6 percent occupancy by March 1988, and would be at 72 percent occupancy in September of that year. Petitioner's Exhibit 2, table 10; T. 49- 50. In fact, the Petitioner predicted 80 percent occupancy in the second year of operation, based upon the analysis of Mr. Braeuning of Petitioner's needs analysis, the gross population, and the number of adolescents in the District, T. 50, as well as comparisons to the HMA Arlington Texas, facility, analysis of District competition, availability of physicians, and information provided by children, family, and youth of the Department of Health and Rehabilitative Services. T. 49. Mr. Braeuning had not previously staffed or administered an adolescent psychiatric center in Florida. T. 61. He had conducted a socioeconomic profile study of Hillsborough and Highlands Counties, but not for Polk, Manatee, or Hardee Counties. T. 63-64. Mr. Braeuning was not personally aware of whether District VI psychiatrists would use the program proposed by HMA, and was not aware in any great detail of the existing programs in the District. T. 64-66. The Petitioner does not currently operate an adolescent psychiatric facility in Florida. T. 61. Mr. Braeuning is an expert in health care administration and operations. T. 25. It is the further finding of the Hearing Officer that the projections of the Petitioner that an 80 percent occupancy rate will be achieved by this projected depend primarily upon the Petitioner's evidence as to need provided by other witnesses. Since, as will be discussed ahead, that evidence was sufficient to demonstrate need, the projection of an 80 percent occupancy rate is accepted as based upon sufficient evidence. (TH PFF 7 through 11.) Children ages 0-17 are reasonably expected to require long term inpatient psychiatric hospital care at a rate of 103 per 100,000 persons in that age group. T. 159-161, 461-464; Petitioner's exhibit 5, pp. 21-22, 35. The age group that the Petitioner proposes to serve is ages 12 to 18. T. 35-36. This is a medically appropriate age group to be served by the planned facility. T. 97, 397. No party presented evidence as to the precise rate of need for long term inpatient psychiatric hospital care for ages 12-18, the ages which Petitioner proposed to serve. The Petitioner relied upon the rate for ages 0-17 adjusted by 0.96. T. 160-161. Tampa Heights relied upon the rate for ages 0- 17, unadjusted. T. 465. The method employed by Tampa Heights was much less reliable than that used by the Petitioner, and is rejected. Within the group of persons ages 0-17, the need for long term psychiatric hospital care is greatly skewed toward older persons in the group. Persons in the first 9 ages, from 0-9, account for only 3.596 of the need; in the next 5 ages, 10-14, there is 31 percent of the need; and in the last 3 years, 15-17, there is 6596 of the need. T. 160. These statistics follow a curve of accelerating need as children increase in age. The composite rate of 103 per 100,000, which includes a very large number of persons in the 0-11 age group with very little need, thus is much too low to be used as a predictor of need for the 12-18 age group. T. 578-579, 582-583. Petitioner's method of adjustment also has a flaw, but the flaw is less unreasonable than that proposed by Tampa Heights. Petitioner proposes that the rate of 103 per 100,000 be adjusted so that it reflects that portion of the rate attributable to persons ages 10-17. This includes need of children ages 10 and 11, and thus includes need which Petitioner does not propose to serve. Second, it fails to include 18 year olds, and thus underestimates need in that regard. The net result, however, is probably to underestimate need slightly. As discussed above, the need for long term hospital care seems to increase at an accelerated rate. If, for ages 0-9, only 3.5 percent of the need is represented, it is unlikely that the need of 10 year olds or 11 year olds will be all that much, and thus, inclusion of those ages probably has not contributed greatly to an overstatement of need. On the other hand, the failure to include 18 year olds, given the fact that persons 15-17 represent 6596 of the total need in the 0-17 age group, probably results in an underestimation of need. In all probability, the overinclusion and underinclusion problems with Petitioner's method cancel out. At ,worst, if one assumed a completely linear distribution of need between the ages 10-18 (which, as discussed above, is contrary to the evidence), the 0.96 adjustment would be evenly distributed throughout all the ages from 10-17. Thus, since there are 8 ages in that group, each age would account for 0.12 of the need, assuming linear distribution. Subtracting ages 10 and 11, and adding age 18, would result in an adjustment factor of 0.84. The calculations which follow will use both the 0.96 and 0.84 factors, although it is the conclusion of the Hearing Officer that the 0.96 factor is most reasonable. District VI consists of Hillsborough, Manatee, Polk, Highlands, and Hardee Counties. Tampa Heights Exhibit 2. The population for 1990 in District VI of persons ages 12-18 is predicted to be 135,627. T. 456. The population for ages 0-17 is predicted to be 380,583. (This is derived by reversing the calculations on pages 157-158 of the transcript, i.e., dividing 392 by 103 and multiplying by 100,000.) As explained above, it would be statistically incorrect to multiply the rate for ages 0-17 times the population for ages 12-18, as proposed by Tampa Heights, since the rate of 103 per 100,000 is much lower due to the inclusion of ages 0-11 in calculating the rate. Petitioner's method is mathematically sound. It requires the multiplication of 103 times the projected population for District VI in 1990 for ages 0-17, which is 380, 583, divided by 100,000, and then adjusted by multiplying the adjustment factor discussed above, by 0.96. The result is 376, which represents the number of persons, ages 10-17, who are expected to require long term inpatient psychiatric hospital care in 1990, and on this record, represents also the best estimate of the number of such persons in age group 12-18 predicted for District VI in 1990. (Assuming that 0.84 is the correct adjustment factor, and performing the same mathematical computation, the number of such persons is 329.) Calculation of the gross bed need for these 376 patients depends entirely upon the choice of length-of stay estimated for such patients. The Petitioner proposes a length of stay at its facility of from 120 days to 180 days. T. 158; 36. Petitioner's expert, Mr. Britton, admitted that he used the range of 120 days to 180 days in his estimates of need because "they were the lengths of stay that were indicated for the Applicant's project as it related to specific program they intended to utilize . . . ." T. 265. Thus, to this extent, these length of stay are inappropriate for determining projected need for the District in 1990. As Mr. Brittion admitted, these lengths of stay are only those patients which Petitioner seeks to attract and serve. Mr. Britton testified that there is no definitive length of stay for adolescents in the expert literature, hut that one study reported a range from one month to nine months, with an average of 108 days. T. 242. Tampa Heights' expert, Howard E. Fagin, Ph.D., was of the opinion that an average length of stay of 90 to 120 days would be appropriate. T. 466. Tampa Heights thus used this range in its estimates. Tampa Heights Exhibit 8. Dr. Max Sugar felt that the length of stay could be six months or longer. T. 88. Northside Community Mental Health Center, the only facility (apparently) that has a certificate of need in District VI for long term adolescent inpatient hospital psychiatric beds, had an average length of stay of 349 days for 12 of 16 long term beds. T. 320. Finally, and most persuasive to the Hearing Officer, Tampa Heights presented the testimony of Peter Michael Kreis, Program Director, Children, Youth and Families Program Office, of the Department of Health and Rehabilitative Services. Mr. Kreis was the District Administrator of District VI for five and one-half years, T. 342, and was accepted as an expert on the issue of the availability and adequacy, from the perspective of the Children, Youth and Families Program, of facilities in District VI and the central Florida area for children and adolescents eligible for that program. T. 348-352. As will be discussed ahead, Mr. Hreis identified some 320 beds in District VI that could be categorized as residential beds (including hospital beds) available to provide long term mental health care to CYF adolescents, and his testimony has been accepted as fact in the paragraph ahead. Mr. Kries testified that the normal length of stay in these facilities is "probably closer to nine months," and that the majority of them are "90 days and beyond." T. 354. Thus, the best evidence of length of stay is the actual length of stay now experienced, as shown by Mr. Kreis and the experience of Northside Community Mental Health Center, the only long term adolescent facility in the District. A length of stay of 180 days as proposed by the Petitioner is probably conservative, and is accepted as a reasonable basis for calculating need. The gross bed need for District VI for adolescent long term inpatient psychiatric hospital beds is thus calculated as follows. In 1990, 376 patients will stay an average of 180 days, resulting in 67,680 patient days. Divided by the number of days in the year, 365, this is 185 patient years, which is also the annual bed need. This figure is adjusted by dividing by 80 percent to assure that the 80 percent or less occupancy standard contained in the rule is met, which results in a gross bed need in 1990 of 231 beds. Performing the same calculation, but using the figure derived from using the 0.84 adjustment factor, the result is a gross bed need in 1990 of 202 beds. As will be seen ahead, the net bed need, insofar as the application of this Petitioner is concerned, is not materially affected, regardless whether the 0.96 (the factor chosen by the Hearing Officer) or a factor of 0.84 is used. It must be reiterated that the factor of 0.84 is rejected for the reasons stated in paragraph 22 above. Camelot Care Center is erroneously carried by HRS in the inventory of District VI long term child and adolescent psychiatric beds. T. 164, 536. Camelot Care Center is not in District VI, but is in Pasco County, which is not in District VI. T. 163-166. The only long term inpatient hospital psychiatric beds currently in District VI for children and adolescents are 16 beds located in Hillsborough County at Northside CMHC. Tampa Heights Exhibit 7. Thus, if only long term beds in District VI were to be considered, there would be a net need of 215 beds by 1990. As will be discussed ahead in the conclusions of law, both the statutes and the rules adopted by HRS require that the availability of short term inpatient psychiatric facilities to provide care for some of the long term inpatient psychiatric patients of the District must be considered in determining net bed need. This conclusion was reached, following the language used by the rules, without regard for asserted differences in treatment modalities. But even if treatment differences were relevant, the Petitioner has not proven that the short term Inpatient psychiatric hospital facilities in District VI do not provide, in part, services "like" those provided in a long term facility. It is true that the short term facility will tend to treat acute problems, and that a patient having deeply seated mental problems may not reveal such problems in a short treatment period. T. 92. But Petitioner's own expert noted that the psychiatric treatment itself is the same for short and long term patients, and that the physician sometimes needs a period of time of evaluation to determine the patient's longest term needs. T. 89-90, 92. The treatment program at Tampa Heights is very similar to that proposed by the Petitioner. T. 326. The treatment program at Palmview Hospital seems to be quite similar to that proposed by the Petitioner. T. 115. Moreover, short term facilities in fact provide treatment for those "long term" patients who experience the shorter stays. Rule 10-50.11(26)(a), Florida Administrative Code, defines long term services as those averaging a length of stay of 90 days. Thus, at least some of the need for long term services is a need for hospital care (in gross number of days) of less than 90 days, and these stays could just as easily be provided by short term facilities. In fact, such potential "long term" patients are, in part, being served by such facilities as Tampa Heights, which observed lengths of stay of 90 days and longer, one patient for 14 months, and 2 patients for 8 months at the time of the hearing in August. T. 248-249, 255, 334. For these reasons, as well as the findings in paragraph 10 above, it is the conclusion of the Hearing Officer that short term inpatient psychiatric hospital facilities in District VI have the capability of providing a portion of long term services to adolescents, and in fact do so to some extent, and thus must be considered as a "like and existing health care service" as defined by section 381.494(6)(c)2, Fla. Stat. The record does not contain high quality evidence as to what portion of existing and approved short term hospital inpatient psychiatric facilities for adolescents in District VI should be deemed to be "like" long term facility. The only attempt at quantification of this issue is found in the evidence presented by Tampa Heights that 36.3 percent of its revenues in the current fiscal year derived from adolescents were from adolescents who stayed longer than 90 days. There was no evidence as to the proportion of patient days represented by this revenue, and there was no evidence that this percentage holds for other short term facilities in the District. However, the percentage is conservative in one way: it includes only such stays that are more than 90 days, and does not include those who stayed less than 90 days. As discussed above, some of those adolescents who stay less than 90 days can be characterized as both a "long term" and a "short term" patients due to the definitions adopted by HRS in its rules. Rather than reject the only data available, it is concluded that approximately 36 percent of adolescent short term hospital inpatient psychiatric beds are available for the needs of "long term" adolescent patients. District VI currently has 124 licensed and approved free standing short term inpatient psychiatric hospital beds, and 19 licensed and approved beds in a general hospital, for a total of 143 short term inpatient psychiatric beds. T. 459; Tampa Heights Exhibit 7. Since 36 percent of these beds are available to serve the needs of some of the long term patients in the District, the short term beds in the District provide an additional 51 beds. Thus, the total number of psychiatric beds in District VI available to provide for the needs of long term adolescent psychiatric patients is 67, which includes 51 short term beds and 16 long term beds. (The 32 long term beds at Camelot Care Center have been excluded because not located in District VI.) Since 231 long term adolescent psychiatric beds are needed in District VI by 1990, and 67 such beds exist, there is a net long term psychiatric bed need of 164. Even if the lower bed need number is used (which was 202, derived from using the 0.84 adjustment factor), the net bed need shown by the Petitioner is at least 135 beds by 1990. The Respondent, the Department of Health and Rehabilitative Services, proposes to apply non-rule policy to the application of the Petitioner. The non-rule policy is that consideration should be given to the availability of like and existing services that are within two hours driving time of the site of the facility proposed by the applicant, even though some of those facilities are outside the District. T. 534. The Department justifies this policy to prevent overbuilding, T 535, to allow focus upon a standard metropolitan area, rather than upon a District, T. 536, and because patients for long term psychiatric hospital care cross county lines, T. 543, 550. The policy makes sense. Long term psychiatric care, in all probability, does not need to be located by District, but could be sited regionally, to serve larger numbers of people than those in just a District, since by definition, such care ought not involve acute emergencies. The policy is reasonable and has been justified by the Respondent. Intervenor Tampa Heights demonstrated that there are perhaps 270 long term psychiatric hospital beds within two hours drive of the site proposed by the Petitioner. T. 475-478; Tampa Height Exhibit 10. FIRS presented similar, if less precise, testimony. T. 535-536, 545-552. But neither the Respondent nor the Intervenors provided evidence as to how many of the beds outside District VI are actually available to serve the needs of persons in District VI. It is probable that facilities located in Orlando, Sarasota (Tampa Heights Exhibit 10) and St. Pet-ersburg (T. 536) are located in those cities to serve persons needing such services in those cities and Districts. There was no evidence that any of these out-of-District facilities were granted certificates of need to serve the needs of persons living in District VI. Moreover, without evidence to show to what extent these 270 out of District beds are needed to serve the needs of non-District VI patients, it is factually impossible to determine to what extent some of these 270 beds might be used to meet the needs of District VI. For this reason, the 270 beds identified as being within two hours of the site of the facility proposed by the Petitioner cannot be considered to be available to serve District VI needs. The Children, Youth, and Families (CYF) program of the Department of Health and Rehabilitative Services helps place eligible children and adolescents in psychiatric or other mental health programs. T. 346. Mental health programs exist in outpatient and residential facilities as well as licensed general and specialty hospitals. T. 346-347. The Department prefers not to use the more restrictive hospital setting for placement of these children. T. 353. The majority of facilities providing mental health care to children and adolescents in District VI provide such care on a long term basis, that is, for more than 90 days, and normally about nine months. T. 354. District VI has the following facilities which do provide or can provide such long term mental health care for CYF children and have the following approximate number of beds: (T. 355-357): Childrens' Home 68 Northside CMHC 24 (This is 8 more than TH. Ex. 7) FMHI 28 Childrens' Services Cen. 24 Tampa Heights 38 (This is 2 less than TH. Ex. 7) Hillsborough C. Hosp. 12 Memorial 10 University of S. Fla. 24 (Devoted to adolescents) Peach R. CMHC 34 Palmview 18 Winter Haven Hospital 30 Manatee Memorial 10 TOTAL 320 All of the above programs are residential programs, not outpatient programs. See T. 353-357. All, or a substantial portion, of these 320 beds are available in District VI to meet the need by 1990 in that District for long term psychiatric beds. T. 354. However, this inventory of 320 beds includes residential programs (such as perhaps the "Childrens' Home" listed above) that are not hospitals as characterized by Tampa Heights Exhibit 7. It should be remembered that the need for 231 long term psychiatric hospital beds was derived from data used by all parties from table 13, page 35, Petitioner's Exhibit 5. The rate of 103 per 100,000 was derived from that table by adding only the predicted number of psychoses and neuroses for the age group 0-17 needing "24-hour institution" care. Excluded from that rate were persons needing "acute hospital" care and "special programs." One cannot meaningfully assess the availability of the 320 beds listed above for long term care until the need for such beds for acute care and residential care has been calculated. Since there has been no expert testimony in this case to calculate the total need in District VI for adolescent mental health care (including long term 24 hour beds, acute care beds, and other types of residential beds), the testimony of the "availability" of the 320 beds is rejected as an irrelevant and statistically incorrect correlation of bed inventory with "need." It is possible, however, to test the meaningfulness of the testimony that 320 beds are "available" for long term care in District VI by reference to statistics contained in Petitioner's Exhibit 5. Since this exhibit and the date contained therein is heresy, the Hearing Officer cannot make a finding of fact by reference to the statistics contained in Petitioner's Exhibit 5, in the absence of expert opinion, which is lacking in this record. However, a relatively simple calculation can be made, using exactly the same method used by all the experts in this case. That calculation will be made in findings of fact 42-46, however, not as a finding of fact per se, but as explanation for why the 320 beds must be ignored absent some evidence that such beds are indeed available to serve long term patient needs (or, are unavailable because currently serving many other needs). Turning to Petitioner's Exhibit 5, table 13, the following predicted incidence of mental illness by treatment facility for the age group 0-17 is recorded therein: Special Programs Acute Hospital 24 Hour Psychoses 128 210 30 Neuroses 123 253 73 The total of these numbers is 817. Excluded from the above are "outpatient" statistics. "Outpatient" as used in table 13, Petitioner's Exhibit 5, is concluded to mean the same as "ambulatory" as described on pages 21 and 22 of the same exhibit, and "special programs" on table 13 are concluded to be "partial hospitalization" as described on the same pages. "Partial hospitalization" and "special programs" include halfway houses, group homes, day care centers, boarding homes, foster homes, and congregate care facilities. Id. at page 21. Thus, the commination of data with respect to "special programs," "acute hospital," and "24-hour institutions" much more reasonably approximates the types of facilities and care included in the 320 beds identified by Mr. Kreis. Adding these numbers, the total predicted incidence of psychoses and neuroses for persons ages 0-17 needing partial hospitalization, acute hospital care, and 24 hour hospital care, would be 817 per 100,000. This number should also be modified by the factor 0.96 to convert it to a better estimate of the rate per 100,000 for the age group 12-18, which is a rate of 784 per 100,000. Using this rate, it might thus be predicted that 2984 adolescents in District VI in 1990 (ages 12-18) will need special programs, acute hospital care, and 24 hour care, for psychoses and neuroses. This number is based upon the predicted 1990 population of the District of 380,583. Mr. Kreis testified that the majority of the 320 beds are used by adolescents staying longer than 90 days, and that the norm for these beds was about nine months. T. 354. Using a more conservative average length of stay for all of these beds of 180 days, and apply an 80 percent occupancy standard, the following calculation can be made, using the same need formula used above. The 2984 adolescents needing special programs, acute care, and 24 hour institutional care, will need 537,120 patient days of care per year at an average length of stay of 180 days. Dividing by 365, this converts to an annual bed need of 1472. Assuming the need to maintain 80 percent or less occupancy, the gross bed need is 1840 beds to provide special programs, acute care, and 24 hour institutional care. Subtracting the 320 beds now available, there would be a net need by 1990 of 1520 beds. Thus, the 320 beds identified by Mr. Kries would not adequate to fulfill the need identified in earlier parts of this order. While it is the conclusion of the Hearing Officer that a length of stay of 180 days for the combined 320 beds is appropriate, given the testimony of Mr. Kreis, it would be useful to recalculate the above figures assuming only a 60 day average length of stay for all of these beds. (This length of stay is far too low, given the probability that adolescents assigned to residential settings are, for reasons of continuity of care and for lack of parental availability to cope with the adolescent's problems, destined to spend far more than 60 days per year in such programs.) At a length of stay of 60 days, 2984 persons would generate 179,040 patient days annually, which converts to a bed need of 491 annually. At 80 percent occupancy, 614 beds would be needed by 1990, a net need (subtracting 320 beds) of 294 beds. This calculation is not correct, given the testimony of Mr. Kreis as to normal length of stay, and is not adopted by the Hearing Officer. It is performed, however, to show that even if Mr. Kries were wrong about the length of stay, the 320 beds he identified still do not meet predicted need, even if a 60 day average length of stay is used. Based upon all of the foregoing, there is a need for the 60 beds proposed by the Petitioner in District VI. George Britton, who testified on behalf of the Petitioner with respect to calculation of need, was tendered as an expert in health care planning. Mr. Britton received a master's degree in business administration in health care administration in 1979. During his master's work, Mr. Britton took a course in health economics. T. 139. In part that course concerned health care regulations at the national level. T. 140. The primary focus of his master's degree was hospital administration. T. 137. There were no courses available specifically dealing with planning for psychiatric services, and he took none. T. 137. He has had experience with various methodologies for determining bed need for a new health service both in his academic work and in practical experience. T. 140- 141. He also has attended seminars over the past five years concerning planning for new health services. T. 141. He worked as a health care administrator in a middle level position at George Washington University Medical Center between his undergraduate degree and his master's degree. T. 128. He served as assistant to the executive director, University of Florida Medical Center, Shands Teaching Hospital, from 1979 to 1982. T. 129. From 1982 to late 1984, Mr. Britton worked as vice president operations, University Community Hospital, in Tampa, Florida. Id. At Shands, Mr. Britton was also in charge of planning, and in that job, worked on several applications for certificates of need. T. 131. These certificates of need were quite substantial, one involving about $70 million for a proposed new hospital, and another for about $30 million in renovations. T. 132. Other certificates of need applications that he worked on included applications for neonatal services, radiology, and for helicopter service. T. 132. As vice president at University Community Hospital, Mr. Britton was similarly responsible for certificate of need applications, and worked on applications for cardiac catheterization, open heart surgery, and nuclear magnetic resonance imaging. T. 133. One of the applications for a certificate of need for which Mr. Britton was responsible concerned renovation of a children's mental health unit, but did not involve new beds. T. 138. All of his work with certificate of need applications involved work with need methodologies based upon the demographics of a service population. Id. Mr. Britton has been qualified on one prior occasion as an expert in emergency medical services or hospital administration. T. 135. He had not testified previously with respect to need for psychiatric services. T. 138. Mr. Britton's testimony covered areas well within his general expertise. First, Mr. Britton selected the same rate of incidence of psychoses and neuroses among persons ages 0-17 in need of 24 institutional care as selected by the Tampa Heights expert. Thus, there was no dispute as to that basic rate and its genesis from Petitioner's Exhibit 5. Second, Mr. Britton applied a factor of 0.96 to reduce that rate, deriving this factor from Petitioner's Exhibit 10. Dr. Fagin was less conservative, proposing to use the 103 per 100,000 prevalence rate without adjusting for ages 0-11. If Mr. Britton erred, the error is not in the favor of the Petitioner. Third, Mr. Britton used the same mathematical formula as used by Dr. Fagin, including use of the 80 percent occupancy standard. Fourth, there was no dispute as to the accuracy of the population figure used, and as discussed above, Dr. Fagin seriously erred in using a population figure for only ages 12-18. Fifth, the length of stay was primarily established by Mr. Kreis and testimony from Northside Community Mental Health Center, and Mr. Britton's expertise only corroborated that primary evidence. It is the conclusion of the Hearing Officer that Mr. Britton is as an expert in health planning for the testimony that he rendered in this case. TH PFF 30 is rejected for these reasons. and finding of fact 48. Mr. Britton was deposed on July 5, 1885. He was questioned about several methodologies, and thought that he had been asked about three methodologies. T. 216. But it is clear from the cross examination of Mr. Britton during the hearing that none of the deposition testimony amounted to his opinion on July 25, 1985, as to need, with the exception of one statement: on July 25, 1985, Mr. Britton apparently was of the opinion that there was a net need for 105 beds. T. 219-220. All of the other deposition testimony appears to have simply been Mr. Britton responding to questions by counsel as to the results if various other methodologies were used; at no point did Mr. Britton admit that any of the alternative methodologies were ones that he adopted. He said that he considered various age ranges, and ultimately refined his opinion as he gathered data from professional literature. T. 204. In the deposition, Mr. Britton reviewed one version of inventory of available beds, but he never stated that the 479 beds identified were in fact available to serve long term adolescent needs. He clearly stated that "there was a great deal of confusion about that at that particular time, which I indicated I was in the process of sorting out" with respect to "what constituted inventory." T. 207 He characterized the list of 479 beds as a "mixture of facilities," Id. He later said that these beds were in short term facilities. T. 213. It should be remembered that earlier Mr. Britton had stated that he considered 8 wide variety of facilities in the District, and that due to various statistical problems, it was not possible to develop a precise number of beds available for long term patients, T. 153-155. The second method explored in the deposition was based upon the District VI local health plan of 1985, and was simply something that Mr. Britton "took into consideration." T. 218. In the deposition, he went through the local health plan and verified the numbers, T. 218, and stated that there was other information not yet available on July 25, 1985, upon which he intended to rely. T. 219, 223-224. This second method was the method used to determine need for short term psychiatric facilities. T. 224. None of the foregoing detracts from the ultimate credibility of Mr. Britton. It only reflects that various types of methodologies that he considered and ultimately rejected. (TH PFF 31.) At a deposition on July 25, 1985, Mr. Britton testified that it was not possible to establish the number of beds available in District VI for long term adolescent care, and on cross examination, Mr. Britton explained that when he was asked that question, he had under consideration a wide variety of facilities throughout the District. He further explained that due to the practice of combining adult and adolescent beds and reporting irregularities, plus the inclusion of short term beds, it was not possible to develop a precise number of such beds as long term beds. T. 153-155. Rather than detract from the credibility of Mr. Britton as a witness, this answer adds to his credibility. As discussed above in other findings of fact, none of the parties presented evidence of high quality as to the availability of beds to provide long term adolescent care. Tampa Heights proposed to extrapolate from its own revenue experience to apply a 36.3 percent figure to all other facilities, and did so without any specific evidence to justify such as extrapolation. See findings of fact 11 and 32. HRS asked the Hearing Officer to consider the availability of beds within a two hour driving time without providing any evidence as to the actual availability of out-of-District beds to serve District VI needs. And Tampa Heights applied the prevalence rate of psychoses and neuroses for adolescents needing 24 hour institutional care to the bed inventory provided by Mr. Kreis, which included halfway houses and acute care hospitals. In sum, Mr. Britton's candor concerning the problems of precisely determining the availability of beds to serve the long term need of District VI adolescents adds to his credibility. (TH PFF 31.) As discussed above, Mr. Britton considered and rejected several age groups in arriving at his final opinion. T. 204. That he did so is normal for an expert in arriving at an opinion, and his testimony coupled with his deposition testimony ultimately does not detract from his credibility on this point. He admitted that he looked at various lengths of stay, including 45 days (when he was analyzing short term bed need, T. 241 and Tampa Heights Exhibit 1), and 87.2 days, T. 242, but, as found earlier, Mr. Britton testified that there is no one definitive length of stay in the professional literature. T. 242. Moreover, Tampa Heights' expert, Dr. Fagin, used two lengths of stay, without explaining a detailed basis for either. Finally, it is true that Tampa Heights Exhibit 1 contains an analysis performed by Mr. Britton as of August 9, 1985, which contains a prevalence rate of 1,010 per 100,000. T. 237. But that rate is correct for the analysis performed on Tampa Heights Exhibit 1, which shows an analysis of short term (acute hospital) bed need. As Mr. Britton stated, it was not "his" rate, it was the rate for such need derived form the GMENAC study, Petitioner's Exhibit 5. T. 238. Tampa Heights Exhibit 1 is marked "working - notes," and, as discussed in earlier parts of this recommended order, it would be appropriate to use a rate for acute care psychiatric hospitals to determine need for such hospitals as one step in an analysis of determining to what extent such short term hospitals might in fact be available to serve long term needs. That Mr. Britton performed such an analysis is to his credit. For these reasons, TH PFF 32 is rejected. The following are specific rulings upon the proposed findings of fact of the Petitioner which have not previously been identified in the above findings of fact, or which may contain sentences that have not specifically been addressed. The numbers which follow correspond to the numbers of Petitioner's proposed findings of fact: Rejected because not factual in nature. The facts proposed herein are dealt with in findings of fact 36- 38. All of the facts proposed by Petitioner in proposed finding of fact 13 are true, but irrelevant, since the methodology of Dr. Fagin, and his result, have been rejected for the reasons stated in findings of fact 18-35, and findings of fact 21 and 26 in particular. Petitioner's proposed finding of fact 14 is adopted by reference. Petitioner's proposed finding of fact 15 is adopted by reference. Petitioner's proposed finding of fact 16 is adopted by reference. Petitioner's proposed finding of fact 17 is a summary of Mr. Britton's calculations of need. The majority of these calculations were adopted, except that the average length of stay was found to be 180 days. Findings of fact 18-38 deal with Petitioner's proposed finding of fact 17. Adopted by findings of fact 29, 30 and 47. The following are specific rulings upon the proposed findings of fact of Tampa Heights which have not previously been identified in the above findings of fact, or which may contain sentences that have not specifically been addressed. The numbers which follow correspond to the numbers of Tampa Heights' proposed findings of fact: TH PFF 14 is adopted by reference, except the last sentence. The testimony of pages 529-530 of the transcript was that "the need for care is greater than those people who demand care" because people who need care sometimes do not receive it. It cannot be concluded that calculations of need based upon estimates of need are overstated, or that demand statistics are more suitable, since the point of calculating "need" is to estimate the number of people who are in need, and not to exclude those who need care but are unable to obtain it. Rejected for the reasons stated in findings of fact 18 through 38, and particularly 21 and 26. TH PFF 16 is adopted by reference. The first and last sentences were adopted in findings of fact 19 and 23. The second sentence was rejected by findings of fact 21 and 25. TH PFF 18 was adopted, except that the adjustment factor of 0.96 was also adopted; see findings of fact 18 and 22. Most of TH PFF 19 has be rejected in findings of fact 20 through The rate of 103 per 100,000 cannot be applied solely to the population ages 12-18 for the reasons stated in finding of fact 21 and 25. The average length of stay is not as low as 90 or 120 days for the reasons stated in finding of fact 26. TH PFF 20 uses a correct mathematical formula, but reaches an incorrect result for the reasons stated in the preceding paragraph. TH PFF 21 is rejected for the reasons stated with respect to TH PFF 19, except that the 80 percent occupancy standard was adopted. TH PFF 22, which concerns the correct inventory of beds available to serve the need, is rejected for the reasons stated in findings of fact 29 through 34. TH PFF 23 is rejected as stated in finding of fact 30 and findings of fact which precede that finding. TH PFF 24 has been adopted by findings of fact 31 through 34, to the extent that 36 percent of the short term beds identified by Tampa Heights were counted as available to serve long term needs. However, the resulting net bed need is rejected for the reasons stated above with respect to TH PFF 18-22. TH PFF 25 is rejected by finding of fact 29. TH PFF 26 is rejected due to differing calculations adopted above, see paragraphs dealing with TH PFF 18-22. and 37. TH PFF 27 is adopted to the extent stated in findings of fact 36 TH PFF 28 was adopted by finding of fact 38 to the extent that such facilities exist, but the conclusion reached, that these facilities were shown by evidence to be available to serve District VI needs, is rejected for the reasons stated in finding of fact 38. TH PFF 29 is rejected for the reasons stated in findings of fact 39 through 46. TH PFF 30 was rejected in findings of fact 48 and 49. TH PFF 31 was rejected in findings of fact 50 and 51. TH PFF 32 was rejected in finding of fact 52. TH PFF has been considered and ruled upon in findings of fact 20, 21, 25, and 31 through 34. 34-38. TH PFF 34, 35, 36, 37, and 38 are cumulative, and were completely contained in earlier proposed findings which have already been ruled upon. TH PFF 39 has been adopted and rejected for the reasons stated in finding of fact 16. TH PFF 40 has been adopted, in essence, in finding of fact 31. TH PFF 41 is adopted by reference to the extent that there is no evidence that there are access travel to and from) problems with existing psychiatric facilities in District VI. TH PFF 42 is adopted by reference. However, even with the addition of 22 long term beds, under any of the above calculations, there would still be a net need for the facility proposed by the Petitioner. Further, there was no evidence that Tampa Heights in fact intends to add 22 beds to its facility. Absent such evidence, the inference in TH PFF that 22 beds would be available to serve the needs of District VI is rejected. TH PFF 43 is rejected as irrelevant, given the calculations of need contained in earlier protions of this - recommended order. TH PFF 44 has been rejected for the reasons set forth in findings of fact 39 through 46. There was no evidence of need for additional teaching or research facilities to be served by Petitioner, nor was there evidence of the adequacy of existing teaching or research facilities. TH PFF 45 is rejected as worded, and the above sentence is adopted as an alternative. TH PFF 46 is rejected for the reasons stated in findings of fact 7 and 3. The testimony as to a national shortage of child psychiatrists was not sufficiently detailed to result in a finding that the Petitioner could not attract psychiatrists to provide treatment at its facility. In fact, the Petitioner showed consulting affiliation with one psychiatrist, Dr. Sugar, end a plan for attracting staff. The vast majority of staff shown in Petitioner's Exhibit 2 are not psychiatrists, in any event. There was no other evidence of a shortage of other types of staff. TH PFF 47, to the extent that it proposes that long term financial feasibility has not been shown, is rejected based upon the findings in finding of fact 17, since financial feasibility is largely determined by the existence of patients needing the service. Failure to present evidence from a financial expert does not cause a finding of a lack of financial feasibility where need is clearly demonstrated in the record. Although Mr. Jaffe questioned the amount that Petitioner stated it would receive per patient from the CYF" program, Mr. Jaffe did not correlate this with any evidence of the actual amount of CYF payments that should be substituted in place of Petitioner's estimates, and did not quantify the estimated revenue shortfall. Commitment from a bonding authority is not essential to show financial feasibility, since such commitment could not be expected until a certificate of need is granted. TH PFF 48 is rejected based upon finding of fact 12. TH PFF 49 is the same as proposed findings in TH PFF 37 and 42, which already have been ruled upon. TH PFF 50 is rejected due to the analysis of need contained in the findings of fact above, finding a need for an additional 151 long term adolescent inpatient psychiatric hospital beds by 1990 in District VI, and finding of fact 16.
Recommendation It is RECOMMENDED that the Department of Health and Rehabilitation approve the application of Petitioner and issue to it a certificate of need for the establishment and operation of a new 60 bed adolescent long term psychiatric hospital in Hillsborough County, Florida. RECOMMENDED this 20th day of January, 1986, in Tallahassee, Florida. WILLIAM C. SHERRILL, 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 20th day of January, 1986. COPIES FURNISHED: Robert S. Cohen, Esquire Haben, Parker, Skelding, Costingan, McVoy & Labasky P. O. Box 669 Tallahassee, Florida 32302 Jay Adams, Esquire Department of Health and Rehabilitative Services 1317 Winewood Boulevard Building One, Suite 406 Tallahassee, Florida 32301 George N. Meros, Esquire Carlton, Field, Wars, Emanuel, Smith & Cutler, P.A. 410 Lewis State Bank Building Tallahassee, Florida 32301 Susan Greco Tuttle, Esquire Moffit, Hart & Miller 401 South Florida Avenue Tampa, Florida 33602 David Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue The issue is whether Respondent discriminated against Petitioner based on his race and/or disability by terminating his employment in violation of Section 760.10, Florida Statutes.
Findings Of Fact Respondent manufactures rubber hoses for the automotive industry. Petitioner is a black male who began working for Respondent on February 17, 1999. Petitioner's job as a molder required him to work with his hands and arms pinning rubber hoses onto metal pins and removing the hoses from the pins after they cooled down. The job was dangerous and physically stressful to Petitioner's hands and wrists. After working for Respondent for approximately three months, Petitioner suffered a job-related injury. Respondent sent Petitioner to a physician who diagnosed Petitioner as having sprained hand and wrist muscles. The physician prescribed anti-inflammatory medicine for Petitioner and recommended that he return to work on light duty. For the next several months, Petitioner worked as a molder in an area of Respondent's plant that caused less physical stress on the muscles and ligaments in Petitioner's hands and wrists. Petitioner had no problems working in that area. In time, Respondent began to experience a decrease in the number and type of orders that it received from its customers. The change in demand for Respondent's products resulted in a reorganization of the production line, a smaller number of available positions, and in some cases, layoffs of employees. Eventually, Respondent moved Petitioner's work station back to his original position which was physically more stressful. After a couple of months, Petitioner suffered another work-related injury. Respondent told Petitioner that he would have to continue working as assigned because there was no other work or lighter duty available. Petitioner continued to work in the more physically stressful area of Respondent's plant. On one occasion, Respondent took Petitioner to the hospital because he was experiencing pain. Petitioner did not go back to work until he saw a physician who specialized in treating Petitioner's type of injury. Petitioner eventually was diagnosed as having bi- lateral carpel tunnel syndrome. The doctor recommended that Petitioner work on light duty until he could have surgery. Respondent accommodated Petitioner's needs by allowing him to work on light duty pending the proposed surgery. Respondent has a substance abuse policy to maintain a work place that is free from the use of illegal drugs and the use of alcohol. The policy provides for assistance for employees who develop an addiction to drugs or alcohol and who voluntarily seek assistance before the company has knowledge of the problem. If an employee tests positive for illegal drugs or alcohol use while on the job, the employee is subject to immediate termination. Respondent's substance abuse policy provides for drug and alcohol screening under the following circumstances: after any injury that requires outside medical attention; after any incident that results in damage to other associates, company property, or a pattern of personal injuries; upon observance of abnormal or erratic behavior while at work or a significant deterioration in work performance; upon reasonable suspicion due to observable phenomena, direct observation of use, or a report of use by a reliable and credible source; and (e) pursuant to random drug screening. Petitioner never tested positive for illegal drugs or alcohol use while he was working for Respondent. He never even went to work under the influence of illegal drugs or alcohol. However, on August 22, 2000, Petitioner voluntarily advised Respondent that that he had a substance abuse problem and that he desired to participate in the assistance referral program. On August 23, 2000, Petitioner met with Respondent's human resource manager and occupational nurse. The nurse reviewed the company's substance abuse policy and assistance referral program with Petitioner. Additionally. the nurse advised Petitioner as follows: (a) he would have to enroll in a treatment program; (b) he would have to provide Respondent with weekly letters from the treatment program, furnishing information about Petitioner's progress in the program; and (c) he would be subject to random drug screens for two years. The human resource manager advised Petitioner that he would be discharged if he failed to comply with and successfully complete the treatment program. Petitioner indicated that he understood Respondent's requirements for participation in the assistance referral program. Petitioner elected to enroll in an outpatient substance abuse treatment program sponsored by Marion Citrus Mental Health. Petitioner missed his first appointment at the treatment center because he lacked transportation. Petitioner eventually began attending the treatment program three nights a week. He continued to work light duty at Respondent's plant during the day. Petitioner did not furnish Respondent with documentation showing that he had enrolled in the substance abuse treatment program. Instead, Petitioner advised Respondent's occupational nurse that he had signed a release at Marion Citrus Mental Health so that she could call his mental health counselor to verify his attendance in the program. Meanwhile, Respondent continued to reorganize and downsize its operations. When there were more employees restricted to light duty than light duty positions available, Respondent assisted the employees in filing workers' compensation claims and allowed them to stay at home on medical leave for up to 12 weeks. In time, Respondent could no longer accommodate Petitioner's physical injury with a light duty position. Petitioner filed a workers' compensation claim and began staying at home on medical leave on September 11, 2000. On September 11, 2000, Respondent's occupational nurse called Petitioner's mental health counselor at Marion Citrus Mental Health. The nurse learned that Petitioner had kept an appointment at the mental health facility on September 7, 2000. The nurse also learned that Petitioner had not signed a release of information form that would allow the counselor to share any other information about Petitioner's treatment program. On September 12, 2000, Respondent's occupational nurse sent Petitioner a letter. The purpose of the letter was to remind Petitioner that he was required to furnish Respondent with a written statement from the substance abuse treatment facility each week. According to the letter, the written statement was supposed to include Petitioner's treatment plan schedule. The letter advised Petitioner that to remain employed, he would have to keep Respondent fully informed about his progress in and completion of the treatment program. On September 14, 2000, Petitioner called Respondent's occupational nurse to advise her that he could not keep his appointment at Marion Citrus Mental Health that week. Petitioner advised the nurse that he was taking medication that made him dizzy and that he had transportation problems, which made it difficult for him to attend the treatment program. On September 15, Petitioner went to Respondent's plant to see the occupational nurse. Because he claimed that he had not received the letter dated September 12, 2000, the nurse read the letter to him and gave him a copy of it. Once again the nurse explained Respondent's assistance referral program to Petitioner, advising him that Respondent would not tolerate future missed appointments at Marion Citrus Mental Health. The nurse also gave Petitioner a rapid drug screen, the result of which was negative. On November 15, 2000, Respondent sent Petitioner another letter regarding his failure to furnish Respondent with evidence of his attendance at and completion of a treatment program. The letter advised Petitioner that he had to furnish the information on or before November 27, 2000, or risk having his employment terminated. Petitioner received Respondent's November 15, 2000, letter but did not furnish Respondent with the requested information. Petitioner did not call Respondent to explain his failure to do so. In a letter dated November 27, 2000, Respondent advised Petitioner that he was discharged. Petitioner furnished Respondent with a letter dated December 4, 2000, from Marion Citrus Mental Health. The letter states that Petitioner had been enrolled in substance abuse outpatient counseling beginning August 31, 2000, and that he was progressing well. There is no evidence that Respondent applied its substance abuse policy to non-minority employees differently than it did to Petitioner or other minority employees. Additionally, there is no evidence that Respondent treated non-minority employees who had workers' compensation claims differently than it treated Petitioner or other minority employees who were home on medical leave due to a workers' compensation injury. In fact, Petitioner admitted during the hearing that he had no proof that Respondent discriminated against him based on his race. During the relevant time period, Respondent had approximately 52 employees (half black and half white) that suffered a workers' compensation injury. Employees with workers' compensation injuries were allowed to remain on family medical leave for 12 weeks. Employees who returned to work within the 12-week period were guaranteed a job. Subsequent to the 12-week period, employees with workers' compensation injuries were not officially terminated unless they were unable to return to work after 12 months.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 10th day of October, 2002, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (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 10th day of October, 2002. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Ray Mayo 708 Southwest Second Street Ocala, Florida 34471 Kade Spencer Dayco Products, Inc. 3100 Southeast Maricamp Road Ocala, Florida 34471 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issues presented for resolution in the two consolidated cases are whether Rule 10E-16.004(27), Florida Administrative Code, is an invalid exercise of delegated legislative authority, and whether Petitioner violated that rule on a specified occasion and is subject to fine or other penalty.
Findings Of Fact Petitioner, Associated Counselling and Education, Inc., doing business as Substance Abuse Family Education (SAFE), is a Florida corporation doing business in Orange County, Florida. SAFE provides substance abuse treatment to adolescents, mostly within the ages of twelve (12) to eighteen (18) years, with a few young adults who have turned nineteen while in treatment. The Department of Health and Rehabilitative Services (HRS) is the state agency with statutory authority to license and regulate certain treatment programs, including SAFE. At all times material to this proceeding HRS has licensed SAFE to provide substance abuse treatment services in a category titled "non-residential day and night treatment with a host home component." SAFE is not licensed as a secure facility or an addictions receiving facility. SAFE uses a program similar to the Alcoholic Anonymous twelve-step program as a tool for rehabilitating drug abusing juveniles. The program includes five phases through which the clients progress at varying rates. The "first phase" describes clients who are new to the program. As clients progress they enter into stages of increasing responsibility and freedom, until they are able to graduate and return to the everyday world. The program requires that the youths' parents or legal guardians admit them into treatment, even when children are referred by a court, by HRS or another source. The program requires rigorous participation by the parents and any siblings of the client. SAFE's contract for treatment includes a voluntary withdrawal provision which requires that the client request withdrawal through a "chain of command." The purpose of the deliberate, several-step process is to avoid withdrawal on an impulsive or transitory whim of the client. SAFE's rules, including the withdrawal provision, are explained at the beginning of treatment and are reviewed daily with the clients. Clients who are just starting in the program, "first phasers," spend their days at the program and are placed at night with host parents, generally parents with experience in the program through their own children's participation. Staff and host parents are trained in crisis intervention and aggression control techniques through an HRS-sanctioned training program. The techniques are progressive; they range from verbal intervention, to putting an arm around a client's shoulder, to physically forcing a client to the floor when the client has threatened to injure himself or others. SAFE contends that when a client attempts to leave treatment without going through the withdrawal process and without involving the parents or guardians in the process, the client is in serious danger of injuring himself or others immediately following departure from the program. SAFE uses physical intervention as a last resort to prevent clients from leaving the program without going through the "chain of command." At night, however, such intervention is used by host parents only to restrain dangerously aggressive behavior. SAFE instructs its host parents to not physically stop a child from leaving the host home. S. B. was a "first phaser" in SAFE's program in August 1993. During dinner one evening he had been staring or glaring at other clients and acting in a provoking and disruptive manner. After dinner, during an organized "rap" session, several clients were called on to confront S. B.'s behavior. He reacted by throwing a chair, across several rows of clients, at the client who was confronting him. Then he bolted, or attempted to bolt, from the room through the exit door. He was restrained by staff, was calmed, and he returned to his seat. Very shortly after he returned to his seat S. B. began staring or glaring at a client by the exit door. He jumped up and ran for the door. Again, he was physically restrained as he kicked, fought and yelled with anger. Staffperson Pamela Mardis was one of the persons who participated in the restraint of S. B. on August 27, 1993. She considered the client to be in harm's way if he were permitted to leave the program without the assurance of proper safeguard for his well-being and safety. The January 12, 1994 amended notice of violation provided by HRS to Loretta Parrish, SAFE's owner and executive director, states, in pertinent part: As an amended complaint, the following incidents have been found to be in violation of 10E-16, F.A.C., requirements and are therefore subject to administrative fines: * * * August 27, 1993, 5:20 p.m., (report written August 27, 1993, 6:45 p.m.) in which a client was restrained in an effort to keep the client from leaving treatment, your agency will be fined $100 for non-compliance with 10E-16.004(27)(a), F.A.C., requirements. (Petitioner's exhibit no. 6) HRS interprets its rule to prohibit restraint when the perceived danger to the client is in leaving and getting back on drugs. SAFE contends that to let one client leave voluntarily without going through the withdrawal procedures would mean that all of the clients, adolescents with poor decision- making skills, would walk out. There is a program in Palm Beach County, Florida, purportedly similar to SAFE, called Growing Together, Inc. On January 22, 1994, HRS and Growing Together, Inc., entered into a stipulated Final Declaratory Judgement in case no. CL93-9599-AO, in the Circuit Court of the Fifteenth Judicial Circuit, in and for Palm Beach County, Florida, which provided, in pertinent part: In the absence of a Court Order restricting the rights of a parent or legal guardian to control decisions affecting the health and welfare of a minor, Growing Together, Inc., may act upon the request of a parent or legal guardian in accepting a minor client for substance abuse treatment regardless of the minor's objections. In the absence of a Court Order limiting the authority of a parent or legal guardian to control decisions affecting the health and welfare of a minor, Growing Together, Inc., may reasonably restrict minor clients from terminating their participation in treatment contrary to the express direction of a parent or legal guardian. So long as the minor's rights to challenge the reasonableness of restrictions imposed at the express direction of a parent or legal guardian are protected -- that is, so long as the minor is informed of his or her rights and is provided a practical means by which to exercise those rights -- Growing Together, Inc., may continue to act in loco parenti in declining to release a minor from treatment where such release is against the will of a parent or legal guardian and no court order has been issued to direct otherwise. The State of Florida , Department of Health and Rehabilitative Services is hereby prohibited from taking any action contrary to the legal principles enunciated herein and is expressly prohibited from enforcing any interpretation of F.S. Section 397.601 which interpretation is contrary to the findings of this Judgement. (Petitioner's exhibit no. 7) CONCLUSIONS OF LAW The Division of Administrative Hearings has jurisdiction in this matter pursuant to Sections 120.56 and 120.57, Florida Statutes. The two cases consolidated above present two separate issues which must be addressed in separate orders, as one issue (the validity of Rule 10E- 16.004(27), Florida Administrative Code) is determined by the Hearing Officer, and the other issue (whether SAFE violated the rule) is determined by the agency upon a recommended order by the Hearing Officer. Notwithstanding the parties' earnest desire to obtain a resolution of the issue of when a program like SAFE can use physical restraint to prevent withdrawal, the Hearing Officer has no authority to issue a "declaratory statement." That function, addressed in Section 120.565, Florida Statutes, is reserved to the agency. Rule 10E-16.004(6)(a), [Florida Administrative Code], provides that "[t]he department shall impose a penalty of no more than $100 per day against a licensed program that commits a [significant violation pertaining to the health and safety of the clients.] ..." [emphasis added] Rule 10E-16.004(27)(a), Florida Administrative Code, provides: (27) Aggression Control Techniques. Programs which use verbal, psychological and physical intervention methods for managing client behavior shall be required to implement the procedures established under HRS Regulation Number 205-1 regarding the use of Aggression Control Techniques (ACT), or other techniques, as approved by the department. (a) Justification and Documentation of Use. In the event that physical intervention is used to restrict a client's movement, clinical justification shall be documented in the client record, and a complete, detailed report of the incident shall be maintained as part of the program's administrative records and reported to the department's district administrator. Physical intervention techniques shall be employed by trained adult staff to prevent a client from injuring himself or others, or to prevent serious disruption of the therapeutic environment. HRS contends that SAFE violated Rule 10E-16.004(27)(a), Florida Administrative Code, when the program restrained its minor client, S. B., from attempting to bolt without going through the "chain of command" described in SAFE's voluntary withdrawal procedures. HRS has the burden of proving the alleged violation. Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977) HRS does not claim that the techniques used on S. B. were by other than trained adult staff or that the required reports were not made to the agency and properly maintained by the program. Rather, HRS claims that a program such as SAFE cannot detain a child against his or her will. The rule cited by HRS simply does not include that prohibition. It states in the affirmative two circumstances in which a program shall use appropriate physical intervention: to prevent injury to the client or others, or to prevent serious disruption of the therapeutic environment. SAVE contends that permitting a child to leave at will, without following established withdrawal procedures would cause a serious disruption of the therapeutic environment. SAFE presented some competent credible testimony by its director to support its contention. HRS presented no evidence on that subject. HRS, moreover, has failed to justify its policy determination and interpretation of the rule in this case. It argues, for example, that parents do have a right to admit their children to a secure facility and to obtain a court order or alternative involuntary assessment. SAFE is not classified as a secure facility. The procedures and statutes referenced in HRS' proposed recommended order, however, were not in effect at the time of the incident at issue. Chapter 397, Florida Statutes, was substantially revised in 1993 and the revisions became effective October 1, 1993, after the incident at issue. See, Chapter 93-39, Section 51, Laws of Florida. The arguments made by HRS were specifically rejected by the court in Department of Health and Rehabilitative Services v. Straight, Inc., 497 So.2d 692 (Fla. 1st DCA 1986), a case decided prior to the 1993 amendments and therefore more relevant to the instant case. The determination that HRS has failed to meet its burden of proof in this case does not resolve for the parties their more global issue of whether a non-secure program such as SAFE can detain a child involuntarily placed by his or her parents or guardian. That issue is not resolved in Straight, supra, decided under a different statute; or by HRS' rule Chapter 10E-16.004, Florida Administrative Code, in its current form. Nor, contrary to SAFE's assertions, is the issue resolved in the stipulated judgement entered in the Palm Beach case referenced in paragraph 14, above, affecting a program which is not described in any competent evidence in this record. The conclusion in this case is properly limited to the facts and circumstances presented, and to consideration of a rule and statute in existence at the time of the incident at issue. The conclusion is merely that HRS failed to meet its burden of proving that by detaining S. B. on August 27, 1993, SAFE violated Rule 10E-16.004(27)(a), Florida Administrative Code.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Health and Rehabilitative Services enter its final order dismissing the January 12, 1994 amended complaint. DONE and ENTERED this 2nd day of April, 1996, in Tallahassee, Florida. MARY CLARK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of April, 1996. COPIES FURNISHED: Paul D. Newnum, Esquire TURNBULL, ABNER, DANIELS and ROOKS 147 West Lyman Avenue, Suite 100 Winter Park, Florida 32790-0100 James A. Sawyer, Esquire Department of Health and Rehabilitative Services 400 West Robinson Street, Suite S-827 Orlando, Florida 32801 Richard Doran General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-1600 Sandy Coulter, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-1600
The Issue Whether disciplinary action should be taken against Respondent's license to practice medicine based on the administrative complaint in this case, which charges, in general, that he obtained his license through fraudulent misrepresentations and is unable to practice medicine safely because of illness or use of drugs he prescribed for himself illegally under the names of fictitious patients?
Findings Of Fact The Parties Petitioner, the Board of Medicine, created by Chapter 458, Florida Statutes, (the "Medical Practice Act,") is the regulatory authority charged with regulating the practice of medicine in the State of Florida. The Board is within the Agency for Health Care Administration, Section 20.42, Florida Statutes, which, in turn, is within the Department of Business and Professional Regulation. Id. In particular, as is pertinent to this case, the Board has the power to impose disciplinary penalties on a licensee when it finds guilt of any of the grounds set forth in subsection (1) of Section 458.331, Florida Statutes, the "grounds for disciplinary action" section of the Medical Practice Act. Respondent, John Mark Pennington, M.D., is currently a licensee of the Board of Medicine. He has been continuously licensed as a physician in Florida since March 11, 1994. Currently residing in Terra Ceia, Florida, Respondent has a specialty in anesthesiology. He does not, however, presently practice in his specialty. He practices, instead, as a physician in a walk-in medical clinic where he is closely monitored and his access to drugs and medication is completely restricted. The reason for not presently practicing as an anesthesiologist and being closely monitored at the walk-in clinic is the same: an addiction to narcotics. In recovery from the disease of chemical dependency at the time of hearing, and as long as he remains in recovery, Dr. Pennington is not presently impaired as the result of his addiction. Respondent's Checkered Past History of Drug Use Dr. Pennington's use and abuse of drugs spans many years. His illegal drug use began when he was a teenager in high school. In addition to drinking, he was using marijuana, cocaine and other drugs. He continued in college to use drugs, including amphetamines. In 1981, Dr. Pennington graduated from pharmacy school and began work as a pharmacist licensed by the State of Georgia in the City of Savannah. During his employment, he would take from the pharmacy, without the benefit of a medical prescription and without authorization from the pharmacy, certain drugs for his personal use. These included opiate derivatives, Hydrocordone, for example, which are classified as narcotics, as well as amphetamines and amphetamine-like medications such as Ritalin. Sometime in 1981, shortly after he began using narcotics, Dr. Pennington became addicted to them. Dr. Pennington managed to conceal his narcotic addiction from his closest associates, including his former wife, who was employed as a fellow pharmacist with him at the pharmacy in Savannah. In 1985, following an inventory at the pharmacy that indicated a discrepancy in narcotics, Dr. Pennington admitted his drug usage. He went directly into treatment at Willingway Hospital in Statesboro, Georgia where he remained for six weeks until his release. As the result of the discovery and Dr. Pennington's admission, disciplinary proceedings were brought against Dr. Pennington by the Georgia State Board of Pharmacy. The Georgia Administrative Hearing At the hearing during those proceedings, Dr. Pennington acknowledged his addiction. He testified that he knew that he would have to deal with addiction the rest of his life. But, he further testified, thanks to being in recovery as a result of the program at Willingway and a continuing program of treatment, that he was then drug-free and committed to remaining so. Moreover, he testified, that he felt there was no pressure too great to cause him to return to illicit use of drugs. In his view, no pressure was too great because he was committed to the ongoing drug treatment program in which he was then involved. He found the program to be an effective method for dealing with the addiction, a method he had not even known existed prior to his entry into the Willingway program. With regard to the effect the addiction and his behavior had on his life and others, Dr. Pennington testified: There is no way I can really express the guilt I feel and the remorse I feel for what I have done. I just want to do my best, and whatever the Board wants I will follow any direction they want me to go into. I embarrassed my profession by doing this. I almost lost my life, and my family, and my job and everything else. Regardless of what decision is made, I am going to go in the right direction to get my life back to the way it's supposed to be. Petitioner's Ex. No. 4, pgs. 46 - 47. At this same hearing on the Georgia disciplinary proceeding, Dr. Pennington called as witnesses on his behalf his then current employer, Mr. Rupert Heller, and his then wife, Kim Pennington. Mr. Heller testified that he had allowed Dr. Pennington to return to work at his pharmacy as a pharmacist. But the return was subject to certain conditions. The conditions included weekly random urinalyses, direct supervision by other pharmacists, no access to medications and lie-detector tests when requested. Mr. Heller also testified that Dr. Pennington was a competent, conscientious pharmacist who always performed well the duties of his employment. Kim Pennington testified that she had been unaware that Dr. Pennington had used drugs prior to the revelation of early 1985. She also testified about her involvement in Dr. Pennington's treatment program at Willingway, including spending five days at the facility to integrate her into his care and attendance at family counseling sessions. Persuaded by the testimony of Dr. Pennington, his employer and his wife, Kim, and recommendations by the Attorney for the Board, the hearing officer wrote the following in his Initial Decision: The State produced evidence through testimony and the Respondent produced evidence through testimony of witnesses that the Respondent made a mistake in his life and is coping with that mistake in an attempt to overcome his use of drugs and drug abuse. The Respondent moved on his own volition with the help of others to search out and take advantage of programs that would rehabilitate him with respect to overcoming ... drug abuse ... . The Hearing Officer was persuaded to consider any recommendations which were made by the Attorney for the Board in these matters due to the goodwill effort on behalf of the Respondent as well as the assistance and guidance that has been given to the Respondent b[y] said Respondent's present employer.... Exhibit No. 6 attached to Petitioner's Ex. No. 2. Georgia Discipline Following the hearing in Georgia and the initial decision of the hearing officer, the Georgia Board imposed a suspension of Dr. Pennington's license to practice pharmacy for six months, just as the hearing officer had initially decided. But further, again following the lead of the hearing officer's initial decision, the Board suspended enforcement of the suspension for two years during which Dr. Pennington was to be on probation with conditions. Among other conditions of the probation, Dr. Pennington was required to submit to random urinalyses and to attend professional aftercare treatment and counseling. The probationary period was set from December 1985 until December 1987. Medical School After being on probation for a period of eight months, Dr. Pennington, in August of 1986, entered a medical school in the Caribbean on the island nation of Grenada. Dr. Pennington requested the Board of Pharmacy that the conditions of probation be lifted while he was in medical school because of the difficulty in complying with them in Grenada. The request was granted. After his second year of medical school in Grenada, Dr. Pennington transferred to the Medical College of Georgia in Augusta, Georgia. While in medical school in Georgia, Dr. Pennington began working part-time as a pharmacist again. Dr. Pennington did not resume compliance with the conditions of probation imposed by the order of the Georgia Board of Pharmacy. As to its role in overseeing Dr. Pennington, the Georgia Board apparently simply lost track of his case. In any event, the Georgia Board did not follow up to ensure that Dr. Pennington had completed his probation successfully. Resumption of Drug Use During his third year of medical school, while working as a pharmacist again, Dr. Pennington began drinking. Before long, he was taking drugs from the pharmacy at which he was working for his own personal use, again without authorization from the pharmacy or a prescription. Following graduation from medical school, Dr. Pennington undertook his residency at the Ochsner Clinic in New Orleans. His drug use continued. But instead of taking drugs from a pharmacy inventory, Dr. Pennington opted for a method not subject to pharmacy inventories. He wrote prescriptions for them in the names of other persons. Access to More Powerful Narcotics as an Anesthesiologist Respondent began his residency in internal medicine but switched to anesthesiology. The switch was not helpful to Dr. Pennington in terms of controlling his addiction. Now, different drugs, often more powerful, were readily available to him. Among them was Sufenta. To narcotic addicts subject to monitoring who want to resume narcotic use, Sufenta is a drug of choice because it is difficult to detect in bodily fluids. Listed as a controlled substance under Schedule II, Section 893.03(2), Florida Statutes, Sufenta is used primarily for analgesia in surgery. In addition to eliminating physical pain, it produces feelings of well-being and stops emotional pain. It has an effect similar to hydrocodone but it is shorter-acting and much more potent. In fact, Sufenta is the most potent opiate used in medicine today. Dr. Pennington began using Sufenta while a resident in anesthesiology either by injecting it or by inhaling it nasally. His use of this extremely powerful narcotic continued throughout the first half of this decade. Application for Florida Licensure as an M.D. In July of 1993, Dr. Pennington's fiance, Rachel, (now his wife,) assisted him in filling out his application for licensure by the Board of Medicine. Just as Dr. Pennington's previous spouse and other family members had been unaware of his narcotic addiction while a pharmacist prior to entering medical school, Rachel Pennington, too, was unaware that Dr. Pennington was using narcotics. Moreover, she did not know of his past history of drug use or his discipline in Georgia. Rachel Pennington typed the application for Dr. Pennington. Questions 4, 9 and 10 on the application were these: Have you ever been notified to appear before any licensing agency for a hearing on a complaint of any nature, including, but not limited to, a charge or violation of the medical practice act, unprofessional or unethical conduct? Are you now or have you ever been addicted to or excessively used alcohol, narcotics, barbiturates, or any other medication? Have you ever voluntarily or otherwise been a patient in a hospital, institution, clinic or medical facility for the treatment of mental/ emotional illness, drug, addiction/abuse, or excessive use of alcohol? Although the correct answer to each of the three questions in Dr. Pennington's case is "yes," the answers he gave on the application to each were "no." Dr. Pennington reviewed and signed the application. At this moment of opportunity to reveal the truth to his fiancee, Dr. Pennington chose to continue to conceal his addiction and past history of both drug use and discipline. The falsified application was submitted to the Board of Medicine in November of 1993. During the hearing in this case, Dr. Pennington was asked on cross examination about his awareness that the application contained misrepresentations: Q You were aware at the time you filled out your licensure application that the answers to those three questions were incorrect, weren't you? A ... I don't think it is adequate to answer the question saying that because of my denial of the disease that I didn't know the question was wrong. I definitely, at some level, knew the question was wrong. Q ... You knew that you had been disciplined before?. A Yes. Q And you knew that you had been in a treatment facility before. A Yes. Q ... Did you consider that you were in a treatment facility because you were excessively using drugs? * * * A Well, I guess to answer that ... I have to say yes, at some level I definitely did. I was not willing to admit that but to answer your question I have to say yes. (Tr. 201). Practice in Florida and Continued Drug Use Dr. Pennington was licensed by the Board of Medicine on March 11, 1994. He continues to hold that license, license number ME 0065888. In June of 1994, Dr. Pennington completed his residency. Shortly thereafter, he moved to Florida to begin practice as an anesthesiologist. He continued to use narcotics. In order to stave off withdrawal symptoms, the onset of which can occur within several hours of using a powerful opiate like Sufenta, Dr. Pennington was forced to use narcotics throughout the day, including while at work. Moreover, he was unable from time-to-time to avoid the side effects of withdrawal, which included chills and diarrhea. To control those symptoms, he used drugs such as Lomotil. Lomotil, like Sufenta and the other opiates Dr. Pennington has used, requires a prescription. Self-prescribing and Fictitious Patients In order to obtain some of these drugs, Dr. Pennington wrote out prescriptions for Bob Pennington (his father), Rachel Pennington (his wife), and Kim Patrick (his ex-spouse), none of whom were patients of his. For example, between November, 1994, and February, 1995, he wrote or called in at least fourteen prescriptions for Hycodan, Lomotil and Tussionex, in the names of the three fictitious patients. In reality, the prescriptions were for himself. The Self-prescribed Medications Hycodan contains hydrocodone bitartrate, and is a Schedule III controlled substance under Section 893.03(3), Florida Statutes. It is used for cough-relief. The maximum recommended daily dose is 30 milliliters, or six tablets, which consists of thirty milligrams of hydrocodone. Tussionex contains hydrocodone polistirex, and is a Schedule III controlled substance under Section 893.03(3), Florida Statutes. It is used for cough relief and upper respiratory symptoms associated with allergies or colds. The maximum recommended daily dose is ten milliliters consisting of twenty milligrams of hydrocodone. Hydrocodone is a semisynthetic narcotic antitussive and analgesic with multiple actions qualitatively similar to those of codeine. It is a narcotic with potential, of course, for abuse. It has the potential for abuse because it is an opiate derivative, one that, attached to the morphine or opiate receptor in the brain, produces effects of somnolence and euphoria, as well as suppressing other nerve impulses. Hydrocodone causes one to feel good about oneself, blurs time relationships, and changes a person's perceptions. It can cause lack of attention or cause one to be easily distracted, traits that pose extreme danger to patients under the care of an anesthesiologist. Once a certain level of tolerance is reached with hydrocodone, it causes twitching, nervousness, diarrhea, flushing, chills, goosepimples, and other classic symptoms of narcotics withdrawal. Lomotil contains diphenoxylate hydrochloride, and is a Schedule V controlled substance under Section 893.03(5), Florida Statutes. It is used in the management of diarrhea, a common symptom of narcotics withdrawal. It is also used to control other symptoms of withdrawal such as pain and twitching. The maximum recommended daily dose of Lomotil is eight tablets a day or twenty milligrams. At high doses, it is addictive, causing codeine-like effects. Between November, 1994, and March, 1995, Dr. Pennington was taking approximately 15-20 hydrocodone tablets, that is, 75- 100 milligrams, per day, and 30 to 50 Lomotil tablets or 75 to 125 milligrams per day. These levels of consumption are three to five times the recommended maximum daily dosage. Dr. Pennington was self-administering these substances for several purposes: satisfying his addiction, fending of withdrawal symptoms and controlling withdrawal symptoms he could not avoid. Caught Again On March 24, 1995, Dr. Pennington was questioned by an official of the Drug Enforcement Agency (DEA) and a Pinellas County Sheriff's Office detective regarding the fourteen prescriptions for fictitious patients written in late 1994 and early 1995. The interview took place immediately after Dr. Pennington had completed administering anesthesia during an operative procedure on a patient. Dr. Pennington admitted writing the fraudulent prescriptions. Furthermore, he provided the officers with a syringe containing approximately one cubic centimeter of Sufenta. Dr. Pennington admitted that he had used Sufenta about two hours earlier before administering anesthesia to the patient. Talbott-Marsh On March 25, 1995, the day after the DEA discovered Dr. Pennington was illegally using narcotics, he was admitted to the Talbott-Marsh Recovery System in Georgia, having been referred because of his chemical dependency by the Physicians Recovery Network. An inpatient chemical dependency treatment facility, Talbott-Marsh is specifically designed to meet the treatment needs of chemically addicted health care professionals, especially physicians. Five months after admission, on August 25, 1995, Dr. Pennington was discharged from Talbott-Marsh. He had completed the program successfully. Once again, just as upon successful completion of the program at Willingway, Dr. Pennington was in recovery from the disease of chemical dependency. Addiction: the Disease of Chemical Dependency The Disease and its Stages Chemical dependency or addiction is a chronic illness. An identifiable disease recognized by the medical profession, it is not the result of voluntary behavior. Rather, it is the result of a biogenetic defect, one with which the addicted person is born. Together with introduction into the person's system of a sufficient amount of a mood altering substance, this defect produces addiction. Initially, the disease manifests itself in abuse of the drug. In this early stage, addiction has not yet occurred. As use recurs, however, at some point the person crosses the threshold of addiction. After addiction, the individual becomes more and more preoccupied with obtaining the drug, primarily to avoid withdrawal symptoms when the addiction is not satisfied. The more preoccupied the individual becomes with obtaining the drug, the more avoidance there is of external responsibilities: those related to family, work and self. The disease is characterized by the continued use of the drug in the face of ongoing adversity as the result of the avoidance of external responsibilities. Left untreated, the disease leads to serious consequences: institutionalization due to a number of factors which may include brain damage or uncontrollability, disability, and, in extreme cases, death. Crossing the Wall As the disease progresses, eventually it takes control of not only the individual's use of the drugs but all of the individual's thinking as well. This point is referred by practitioners of addictionology as "crossing the wall." When the addict crosses the wall, the disease is in control. It is not uncommon for an addict who crosses the wall to conceal the drug use from everyone including spouse, other family members, friends, and employers. It is common for an addict who has crossed the wall to lie about drug use and minimize the extent of its effects on the addict's life. The acts of denying, concealing, and lying about drug use are common manifestations of the disease of chemical dependency. They fall into a continuum of symptoms of the disease ranging from denial, which relates to the negative consequences the use is having on the addict, to lying. Physicians as Addicts It is common for physicians addicted to drugs to steal them, divert them, write prescriptions for their own use or engage in other deceptive means of obtaining drugs. The manner used by physicians to obtain drugs is often dependent upon the physician's specialty. Nonetheless, self- prescribing medications is found in almost all of the cases of addicted physicians. Consuming massive quantities of drugs is not unusual for the addicted physician, often, in part, because of ready access to drugs. It is, moreover, a sign of tolerance of the drugs. Even in cases of great consumption, and despite the characteristics of narcotics and opiates, when physicians develop tolerance, they remain able to function well while under the influence of the substance. It is common, therefore, for drug usage to go undetected for long periods of time. Furthermore, with regard to opiates and narcotics, it is often difficult to determine whether a person is using them. There tends to be much less muscular coordination, slurred speech and recent memory deficits as would be observed of persons under the influence of other drugs. An individual addicted to and under the influence of opiates, even a physician practicing in a specialty as demanding as anesthesiology, can appear to be functioning as well as a person not under the influence of drugs. This is the case, in part, because a person addicted to opiates can develop tolerance rapidly. The more powerful the opiate, the sooner tolerance may be developed, as in the case of Sufenta. A physician under the influence of Sufenta can take a massive dose and appear to be basically normal to the untrained eye. Dr. Pennington's Stage of Addiction at the Time of Application Prior to the fall of 1993, that is, the time when Dr. Pennington made out and submitted his application to the Board of Medicine, he exhibited all the symptoms of a person who has crossed the wall. He had concealed his drug use, which at that time had become quite advanced, from his fiancee, his family, friends, and colleagues. He was taking massive quantities of narcotic opiates, yet, to the untrained eye, he was not exhibiting symptoms of a person under the influence. At the time of application, Dr. Pennington was well- thought of by his colleagues in the residency program in Louisiana. He was highly recommended for licensure to the Board of Medicine by the instructors of his residency training program. Treatment, Care and Aftercare Treatment is an important phase of the recovery process. Those suffering chemical dependency generally do well in treatment because of the controlled and structured nature of the treatment environment. The environment is safe. The patient is surrounded by others with similar problems. There is a lot of support both from those suffering the disease as well as from professionals. A successful treatment program must insist that the patient be rigorously honest in order to attain full recovery. Rigorous Honesty Because lying is an integral part of the disease of chemical dependency, a program of recovery demands rigorous honesty. In an effective recovery program, such as the one Dr. Pennington participated in at Talbott-Marsh, the physician is required to face the consequences of addiction and participate in psychotherapy when needed. During the treatment phase, the physician is required to go through identification with the family, have a fourth and fifth step of identifying the history of past defects and telling them to another human being. The Physician Recovery Network The Physician Recovery Network is the program used by the Board of Medicine to monitor physicians impaired by addiction in the State of Florida under Section 455.261, Florida Statutes. The Physician Recovery Network ("PRN,") assists the physician in developing and maintaining a manner of living which demands rigorous honesty. PRN does this by requiring the physician to enter into an Advocacy Contract, a five year contract that can be extended if necessary. The Advocacy Contract is designed to serve as a deterrent, promote honesty, to verify through face-to-face conferences and monthly and weekly meetings and periodic urine screens, that a physician is progressing or improving and is not endangering the public or him or herself. Physicians are required to identify the consequences of their drug use and admit their powerlessness over their ability to stop using drugs. Rigorous honesty is demanded by PRN from its participants because it is absolutely required in order to break denial and to prevent rationalization and denial from returning to the behavioral patterns of the addicted physician. PRN educates physicians about the negative behavioral patterns of their disease and monitors the physicians for the return of erratic behavior or evidence of returning denial or evidence of lying. PRN educates physicians about their own indicators for relapse so that they avoid positions likely to produce relapse and so that they will not be unconsciously driven to resume drug use to relieve personal discomfort. PRN monitors its physician participants through local group facilitators. Monitors are assigned because of geographic proximity that will allow immediate access in order to provide counseling. Initially, the PRN monitor undertakes a direct physical evaluation of the physician and becomes familiarized with the physician's specific problems to allow early identification of developing problems that would endanger the public or the physician. In addition, the monitor maintains close contact with PRN. Reports to PRN are made at least weekly providing information about general progress, insight, attentiveness, responsiveness to urine screens, participation in group sessions, openness of the physician, assessment of honesty, and assessment of coping skills. The contact between the monitor and PRN is so comprehensive that it can be characterized as an ongoing dialogue about all aspects of the physician related to management of the addiction and the medical-legal implications for the physician's practice and protection of the public. The monitor is also charged with providing the participating physician with support. If a physician fails to comply with PRN instructions or relapses, the monitor immediately reports it to PRN so that the physician can be submitted to treatment. If necessary to protect the public in such a case, PRN does not hesitate to report the matter to the Agency for Health Care Administration for entry of an emergency order suspending the license. While some number below 20 percent of physicians who enter PRN require more than one treatment to become firmly committed to recovery, 97 percent of the physicians who enter PRN practice without difficulty after five years. The ninety-seven percent success rate PRN has experienced with addicted physicians is significantly higher than the success after treatment of the general population of sufferers of chemical dependency in returning to lives committed to recovery and free of the problems of addiction. Aftercare Aftercare, the stage of recovery which follows treatment and the diseased physician's entry into recovery, is an essential phase of the recovery process, every bit as important, if not more so, than the initial program of treatment. It must consist of close monitoring with repetitive follow-up. This is provided by PRN. As an aftercare program more highly developed than the aftercare received by Dr. Pennington from Willingway in the previous decade, in part, due to advances in the study of addictionology, PRN provides the type of aftercare that supports recovery as fully as possible in light of the status of addictionology today. For example, the syndrome of "protracted withdrawal from opiates," was not even known to exist at the time Dr. Pennington participated in the Willingway program. The syndrome is the result of the body shutting off its own, natural, manufacture of endorphins and other "internal opiates," necessary to a sense of well-being while taking narcotic opiates and introducing into the body exogenous opiates. As a result, it takes the body several years, a period longer than the initial treatment phase, to begin producing its own internal opiates. In the meantime, the opiate addict will continue to suffer withdrawal symptoms, hence the term "protracted" withdrawal. Unlike the care after the Willingway program, the PRN aftercare program provides treatment for protracted withdrawal. Dr. Pennington's Experience with PRN and Adherence to the Advocacy Contract At least through the time of hearing, Dr. Pennington has maintained a strict adherence to his PRN contract. He has fully complied with monitoring by PRN. He has shown a significant commitment to his program of recovery since entering into the advocacy contract. Since late summer, 1995, PRN has considered Dr. Pennington to be safe to practice under the terms of his advocacy contract with continued monitoring. In making that determination, PRN has considered all of the Respondent's past addictive behavior including the length of his addiction, his ability to function normally while under the influence of opiates and other drugs, lying about drug use, concealing it from family, friends, work colleagues, even the Board, stealing drugs, and self-prescribing. Moreover, PRN has considered his prior discipline by the Georgia Board of Pharmacy, the treatment at Willingway and the failed aftercare in his first effort at recovery. Most importantly, PRN has considered the potential danger Dr. Pennington poses to patients and the public. Because of restrictions imposed upon him by both Talbott-Marsh and PRN, Dr. Pennington is not practicing as an anesthesiologist. He cannot resume that practice until his treatment professionals and PRN agree that it is safe for him to do so. Dr. Pennington is not permitted access to controlled substances. He must utilize triplicate prescriptions, one for the patient, one in the chart, and the other for monitoring. Since leaving Talbott-Marsh, Dr. Pennington has successfully met these requirements imposed for his aftercare from the moment he left Talbott-Marsh: Monitor and addictionologist: Dr. Roger Goetz and a local monitor, Jim Noyes, Ph. D. Primary physician of Marte Kautzler, D.O. Not to return to anesthesiology for at least one year following treatment. Return to Talbott-Marsh for reassessment. Work 40 hours per week maximum. Utilize triplicate prescription pads in his practice. Reside with wife, Rachel, and attend couples therapy as directed by Dr. Noyes. Attend Caduceus and AA, 90 meetings in 90 days, followed by attending at a frequency of four to seven times per week. See Joint Exhibit 1. Board Action Had it Been Aware of the Truth at the Time the Application Was Filed Had the Board been aware at the time Dr. Pennington filed his application that the answers to questions 4, 9 and 10 were inaccurate, Dr. Pennington would have had to appear before the Board's Credential Committee. The Committee would have required a personal appearance of Dr. Pennington and a PRN evaluation. Based on the evaluation and Dr. Pennington's explanation for the inaccuracies in the application, the Committee would have recommended either denial of licensure or issuance of the license. Dr. Pennington is in full compliance with his PRN contract and has demonstrated a strong commitment to his program of recovery and the requirements of PRN. It is likely, based on an analysis of similar cases, that if Dr. Pennington were to apply for a license today, with full disclosure, and under the current circumstances of his good standing in the PRN program, that the Board would grant him a license with conditions. Dr. Pennington's Practice Today Today, Dr. Pennington is employed as a practicing physician at a private walk-in clinic. In addition to the practice of requiring his prescriptions in triplicate, his access to controlled substances is completely restricted and the restriction is closely monitored. The nurses at the clinic maintain the keys which allow access to the drugs. An inventory is conducted in the morning when the facility opens and is matched every day with an inventory done in the evening when the facility closes. A urinalysis to check for recent drug use was performed when Dr. Pennington was hired and random urinalyses are done of all employees, including the owner, from time to time without warning. Dr. Pennington, at the time of hearing, had been subject to two urinalyses. Dr. Pennington is observed at the facility for behaviors that would indicate relapse. At the time of hearing, he had not exhibited any such behaviors. His knowledge of medicine was described by his employer as good. Moreover, Dr. Pennington has shown good clinical judgment in the cases he has encountered as well as excellent skills in dealing with his patients. The Impact of Discipline on Dr. Pennington It would be counter-therapeutic to Dr. Pennington to remove him from the practice of medicine while he is in recovery. In fact, one of the main reasons for the extremely high success rate of PRN's work with physicians suffering from the disease of chemical dependency when compared to the general population of those with the disease, is that the physician is working and his or her license is always at stake. Protection of the Public The department, in an attempt to protect the public, is seeking discipline of Dr. Pennington. Yet, the Board, by not taking emergency action against his license, has conceded that he is not impaired at the moment and so long as he is in recovery. Moreover, by allowing his practice pending this proceeding and not taking emergency action against his license, the Board has determined Dr. Pennington's practice as a physician in a walk-in clinic does not pose an imminent danger to public health safety and welfare.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That Dr. Pennington's license to practice medicine be suspended for five years; That the suspension be stayed and that he be placed on probation immediately for at least five years with probation to be extended, if necessary at the end of the five years; That appropriate conditions of the suspension be imposed by the Board to include, at a minimum: No practice of anesthesiology during the period of probation; No access to controlled substances, drugs or medicines requiring a prescription during the period of probation; and, Participation in the Physician's Recovery Network for the entire period of probation. DONE AND ENTERED this 22nd day of November, 1996, in Tallahassee, Leon County, Florida. DAVID M. MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of November, 1996. COPIES FURNISHED: Monica Felder, Esquire Agency for Health Care Administration 1940 North Monroe Street Tallahassee, Florida 32399 Grover C. Freeman, Esquire Jon M. Pellett, Esquire Freeman, Hunter & Malloy 201 East Kennedy Blvd., Suite 1950 Tampa, Florida 33602 Dr. Marm Harris Executive Director Agency for Health Care Administration Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issues are whether Respondent violated Sections 458.331(1)(m), 458.331(1)(q), 458.331(1)(s), and 458.331(1)(t), Florida Statutes, and if so, what penalty should be imposed.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of medicine pursuant to Section 20.42, Florida Statutes, and Chapters 455 and 458, Florida Statutes. Respondent is licensed to practice medicine in the state of Florida. She holds license number ME 0028693. 3 Respondent, a native of Manila, Philippines, attended medical school and received her M.D. degree in 1965 from Manila Central University. She completed an internship and residency in OB-GYN in Manila before immigrating to the United States in 1968. Respondent became a citizen of the United States in 1972. She obtained her license to practice medicine in the state of Florida in 1973. Thereafter, Respondent completed a residency in general practice in Portsmouth, Virginia, and a residency in pathology in Norfolk, Virginia. She is not board certified. Prior to October 23, 1996, Respondent was engaged in a solo practice of general and family medicine. Except for this proceeding, Respondent has never been the subject of disciplinary action in connection with her medical license. She has never had a medical malpractice claim asserted against her. Fiorinal No. 3 or Fiorinal with codeine is a legend drug as defined by Section 465.003(7), Florida Statutes. Fiorinal No. 3 is also a Schedule III controlled substance which is listed in Section 893.03, Florida Statutes. In March of 1991, Respondent began treating Patient G.C. for symptoms related to menopause and anxiety. Respondent's record of G.C.'s initial visit indicates that G.C. is allergic to penicillin and codeine. G.C. made 46 visits to Respondent's office from March 12, 1991 through February 21, 1995. On 37 of these visits, Respondent's records note G.C.'s allergy to codeine. On September 19, 1991, G.C. complained that her knee and calf on her right leg were hurting. Respondent ordered a venogram and prescribed Lorcet Plus for G.C. On December 13, 1991, G.C. complained that she had a cough, sore throat, and congestion. Respondent prescribed Lorcet Plus for G.C. in addition to other medication. G.C. made 15 visits to Respondent's office from June of 1995 through September of 1996. Respondent's records of these visits do not note G.C.'s allergy to codeine. Respondent did not charge G.C. for six of these visits. G.C. complained of pain and swelling in her left elbow on October 31, 1995. Respondent treated G.C. for bursitis and gave her a prescription for Fiorinal No. 3. Respondent did not charge G.C. for this visit. G.C. complained of pain in her elbow again on December 19, 1995. Respondent treated G.C. for bursitis and prescribed Fiorinal No. 3. Respondent did not charge G.C. for this visit. Respondent's records indicate that she saw G.C. for the last time on September 20, 1996. The records do not indicate the purpose of the visit. There is a notation which states, "Last time I'll give this Rx to her," followed by three prescriptions including Fiorinal No. 3. Respondent testified that she prescribed Fiorinal for G.C. because she had previously taken Lorcet with no problems or reactions. Lorcet, like Fiorinal, contains codeine. Allergic reactions to codeine can range from mere rashes to life-threatening problems. Accordingly, prescribing Fiorinal No. 3 for G.C. was contraindicated. Respondent concedes that G.C.'s medical chart was deficient in several ways. It failed to contain an adequate medical history, failed to reflect proper physical examinations, failed to reflect adequate tests and lab studies, and failed to fully document conditions/symptoms to warrant treatment rendered, including medications prescribed. Respondent and G.C. developed a social relationship in 1995. Respondent and G.C. were taking trips together, going out to eat together, and seeing each other quite often in a social setting. G.C. told Respondent that some investors in Sicily wanted to buy Respondent's medical practice. Respondent and the foreign investors could not agree on the terms of sale. Respondent lent G.C. a large sum of money in cash. G.C. would not re-pay the loan or acknowledge the debt. The friendship between G.C. and Respondent began to deteriorate. In March of 1996, G.C. contacted Lynn Flanders, a narcotics investigator from the Escambia County Sheriff's Department. G.C. informed Ms. Flanders that Respondent had written a prescription for Fiorinal No. 3 in G.C's name with the intention of diverting the medicine for her own consumption. The prescription was dated January 15, 1996. Respondent's records do not indicate that G.C. made a visit to Respondent's office in January of 1996. G.C. planned to meet Respondent at a restaurant on March 19, 1996. Before the meeting, Investigator Flanders had the prescription filled at a local drug store. She equipped G.C. with an audio listening device. Ms. Flanders also searched G.C.'s car and person. Finding no drugs or money in G.C.'s possession, the investigator gave the bottle of Fiorinal capsules to G.C. and sent her to meet Respondent at the restaurant. Investigator Flanders seated herself in the restaurant so that she could observe Respondent and G.C. during the meal. Respondent never left the table. Ms. Flanders was unable to observe G.C. when the confidential informant went to the ladies' room. The investigator did not see G.C. hand the prescription bottle to Respondent. After Respondent and G.C. ate lunch, they left the restaurant. Investigator Flanders subsequently discovered that the audio tape was inaudible. Ms. Flanders told G.C. to call the sheriff's office if the doctor gave her another prescription and asked her to get it filled. As referenced above, Respondent gave G.C. a prescription for Fiorinal No. 3 on September 20, 1996. Although the prescription was in G.C's name, Respondent intended to consume the medicine herself. G.C. contacted Investigator Flanders again. She told Ms. Flanders about the prescription. The investigator took the prescription and had it filled at a local drug store. G.C. planned to meet Respondent at another restaurant on September 15, 1996. Before the meeting, Investigator Flanders equipped G.C. with an audio listening device, searched her car and person, gave her the bottle of Fiorinal No. 3 capsules, and sent her to meet Respondent. Investigator Shelby and his partner arrived at the restaurant before G.C. or the Respondent. Investigator Shelby positioned himself in the restaurant so that he could observe G.C. and Respondent. Investigators located outside of the restaurant monitored the listening device. They recorded the conversation between Respondent and G.C. Investigator Shelby saw G.C. take the bottle containing 30 Fiorinal No. 3 capsules from her shirt pocket and pass it under the table to Respondent. Respondent leaned forward, accepted the bottle under the table, and placed it in her purse. Respondent left the restaurant and entered her vehicle. She was then placed under arrest. The bottle of medicine, containing 30 capsules, was recovered from her purse. Respondent's testimony that she did not intend to divert the narcotic for her own consumption is not persuasive. Criminal charges against Respondent are being processed through the Pretrial Intervention Program for nonviolent first offenders. Charges against Respondent will be dismissed if she does not commit any offense for ten months after March 27, 1997, and provided that she satisfactorily completes the program. As part of the ten-month probation, Respondent agreed to voluntary urinalysis and compliance with the mandates of her recovery program through the Physician's Recovery Network (PRN). Respondent has a history of chronic daily headaches and hypertension. She has been taking Fiorinal No. 3 which contains codeine and aspirin since 1972. Respondent was diagnosed with a bleeding ulcer just before her arrest in September of 1996. Her treating physician prescribed Fioricet which contains codeine but no aspirin. Respondent accepted this prescription without telling her treating physician about her codeine dependency. Respondent divorced her husband for the second time in August of 1996. Around the time of her arrest, Respondent experienced a lot of stress as a result of her relationship with her ex-husband. PRN is Florida's impaired practitioner program. Pursuant to contract with Petitioner, PRN offers educational intervention, treatment referral, and rehabilitation monitoring services for health care workers in Florida. The PRN's director, Dr. Roger Arthur Goetz, became aware of Respondent's arrest on October 3, 1996. On his recommendation, Respondent voluntarily agreed to undergo an evaluation by the following three doctors in Pensacola, Florida: (a) Dr. Rick Beach, an addiction specialist; (b) Dr. Doug H. Fraser, a board certified psychiatrist; and (c) Dr. Thomas Meyers, a psychologist. Dr. Beach and Dr. Meyers agreed that Respondent was impaired due to a substance abuse problem. All three doctors agreed that Respondent suffered from a depressive disorder and other psychological problems. Dr. Beach, the addictionologist, determined that Respondent had a dysfunctional relationship with her ex-husband, an unhealthy relationship with G.C., and a probable dependence on opiates. Dr. Fraser, Respondent's psychiatrist, diagnosed Respondent with generalized anxiety disorder and dysthymia. Generalized anxiety disorder is a life-long disorder from which the patient experiences a chronic sense of nervousness, tension, and worry. A patient suffering from this condition will have some physical symptoms such as gastrointestinal problems, headaches, muscle tension, or difficulty sleeping. Dysthymia is also a chronic life-long disorder which causes patients to suffer from chronic minor depression more days than not. On October 23, 1996, Respondent entered into a Voluntary Agreement to Withdraw from Practice with Petitioner. This agreement states that Respondent shall cease practicing medicine until Petitioner issues a Final Order in this case. On November 4, 1996, Respondent entered Jackson Recovery Center in Jackson, Mississippi. This facility was an in-patient substance abuse treatment center. Respondent's treating physician, Dr. Lloyd Gordon, admitted her for treatment with the following diagnosis: (a) Axis I, opioid dependence and dysthymia with anxiety; and (b) Axis II, avoidant and dependent traits. Respondent subsequently entered a residential treatment program, the Caduceus Outpatient Addictions Center (COPAC), in Hattiesburg, Mississippi. COPAC specializes in the treatment of physicians and other health care workers who abuse controlled substances. Respondent remained in this residential program for almost three months. She was discharged from COPAC on February 21, 1997. Respondent signed an Advocacy Contract with PRN the day that she was discharged from COPAC. The contract established a five-year monitoring period during which Respondent agreed to abide by certain terms and conditions, including but not limited to, the following: (a) to participate in a random urine drug and/or blood screen program; (b) to abstain from the use of controlled substances; (c) to attend group self-help meetings such as AA or NA; (d) to attend continuing care group therapy; and (e) to attend a twelve-step program for recovering professionals. In March of 1997, Respondent went to her office to see patients. She wrote prescriptions for some of these patients. She was under the impression that she could return to her practice because she had been therapeutically cleared to practice by COPAC. PRN learned that Respondent was practicing medicine in violation of her agreement to voluntarily withdraw from practice. PRN advised Respondent that she could not go into her office to see patients or write prescriptions until Petitioner gave her that right. Respondent immediately ceased her practice. Upon her discharge from COPAC, Respondent continued to see her psychiatrist, Dr. Fraser. In May of 1997, Respondent told Dr. Fraser that she was experiencing forgetfulness and panic attacks. She complained of having difficulty making decisions and sleeping. Respondent was feeling depressed and having suicidal thoughts. Dr. Fraser increased her antidepressant medication and referred her to a local counseling center. Respondent went to visit her family in California from May 25, 1997 through June 6, 1997. She did not tell Dr. Fraser that she was going out of town. However, she did tell one of the therapists from Dr. Fraser's office about the trip. Respondent saw Dr. Fraser again on June 18, 1997, when she returned to Pensacola. He made a tentative diagnosis of bipolar disorder and began appropriate treatment. Respondent was feeling better when she saw Dr. Fraser on June 25, 1997. Respondent moved to California to live with her sister on July 6, 1997. This move was necessary because Respondent had lost her home as well as her practice. While she was in California, Respondent saw a psychiatrist, Dr. Flanagan. She also attended AA meetings in California. Respondent returned to Pensacola a week before the hearing. She saw Dr. Fraser on August 21, 1997. Dr. Fraser was not aware that Respondent had been living in California and receiving treatment from Dr. Flanagan. During her visit with Dr. Fraser, Respondent admitted that she had a craving for codeine when she was tense. However, she denied use of any prescription drugs except those being currently ordered by her doctors. Respondent reported on-going mood swings even though Dr. Flanagan had increased her Depakote. She verbalized fantasies involving violent behavior toward G.C. Respondent revealed that she was experiencing grandiose delusions. She admitted that she was not ready to return to medical practice. Dr. Fraser concurs. Respondent needs intensive individual psychotherapy for at least six months on a weekly basis. At the time of the hearing, Respondent had not begun such therapy. The record indicates that Respondent was a caring and compassionate physician. Respondent's elderly patients testified that Respondent treated them with extraordinary concern when other doctors refused. Respondent's colleagues in nursing home settings attested to her skill and proficiency in the care of the elderly. None of these patients or associates were aware of Respondent's drug dependence or psychological problems before her arrest. Respondent is "in recovery" for her drug dependence. However, she is not mentally, emotionally, or psychologically ready to practice medicine with reasonable skill and safety for her patients.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Petitioner enter a Final Order indefinitely suspending Respondent's license to practice medicine until she is able to demonstrate the ability to practice with reasonable skill and safety followed by five years of probation with appropriate terms, conditions, and restrictions, and imposing an administrative fine in the amount of $4,000. DONE AND ENTERED this 22nd day of October, 1997, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of October, 1997. COPIES FURNISHED: John E. Terrel, Esquire Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 James M. Wilson, Esquire Wilson, Harrell and Smith, P.A. 307 South Palafox Street Pensacola, Florida 32501 Marm Harris, Executive Director Department of Health 1940 North Monroe Street Tallahassee, Florida 32399-0792 Angela T. Hall, Agency Clerk Department of Health 1317 Winewood Boulevard, Building 6 Tallahassee, Florida 32399-0700
The Issue The issues to be determined are whether Respondent possessed Dilaudid without a legitimate purpose, and whether Respondent is unable to practice nursing with reasonable skill and safety, in violation of section 464.018(1), Florida Statutes, as alleged in the Administrative Complaint and, if so, the appropriate penalty.
Findings Of Fact The Department of Health, Board of Nursing, is the state agency charged with regulating the practice of nursing in the state of Florida, pursuant to section 20.43, and chapters 456 and 464, Florida Statutes. At all times material to this proceeding, Lisa Michelle Jackson was a licensed registered nurse in the state of Florida, holding license number RN 9375240. Respondent’s current address of record is 2358 York Street, Jacksonville, Florida 32207. On Saturday, November 7, 2015, Respondent left work and picked up her minor son from her parents’ house. She drove home, parked at her front door, and lost consciousness. At some point, Respondent’s parents called her cell phone. The phone was answered by Respondent’s son, who advised them of the situation. Respondent’s parents went to her house, and apparently called emergency medical services. EMS personnel arrived on the scene and administered Narcan to Respondent. Narcan is a medication that blocks receptors for opioid-based drugs, and is used to reverse the effects of opioids. It is commonly used when medical personnel suspect a patient of an opioid overdose. Respondent was thereafter transported to St. Vincent’s Riverside Medical Center (Riverside), and admitted with encephalopathy and acute respiratory failure. Respondent had to be placed on a respirator. A urine drug screen was performed, which returned positive for benzodiazepines and opiates. Riverside related the encephalopathy and respiratory failure to a suspected drug overdose. Respondent denied having taken anything containing benzodiazepines. She did indicate that approximately a year earlier she had undergone a tooth extraction, for which her dentist had prescribed Percocet. She had some left over, and testified that she had taken some for back pain several days before November 7, 2015. Respondent was discharged from Riverside on November 9, 2015, at approximately 11:40 a.m. After her discharge from Riverside on November 9, 2015, but later that afternoon, Respondent was speaking with her mother on the telephone. Respondent’s mother did not like the way she sounded, and came to the house. Respondent’s mother believed that Respondent was lethargic, but Respondent admitted only to being tired from her earlier hospital stay. EMS was called, and Respondent was again transported to Riverside, where she was admitted at approximately 5:45 p.m. Her diagnosis on admission was hypertensive disorder. She self-discharged against medical advice, signing the discharge papers at 6:36 p.m. There was no evidence that Respondent’s admission to Riverside on November 9, 2015, was the result of the use or abuse of any substance. On November 20, 2015, Respondent and Carl Nesmith were at Respondent’s residence. Respondent testified that she was experiencing back pain. At some time during the evening, Respondent took three or more Dilaudid tablets. Respondent testified that the tablets belonged to Mr. Nesmith, though the evidence was not sufficient to support a finding to that effect. Nonetheless, by the time of the arrival of the EMS team and her subsequent admission to Riverside as described herein, the tablets were in her possession. Dilaudid is a brand name of hydromorphone, an opioid. Pursuant to section 893.03(2)(a)1.k., Florida Statutes, hydromorphone is a Schedule II controlled substance that “has a high potential for abuse and has a currently accepted but severely restricted medical use in treatment in the United States, and abuse of the substance may lead to severe psychological or physical dependence.” Respondent did not have a prescription for Dilaudid. At some point during the evening of November 20, 2015, Respondent passed out in her bathroom. EMS was called and dispatched to Respondent’s residence. The inference is that Mr. Nesmith called them, but since Respondent was unconscious, and Mr. Nesmith did not testify, the identity of the caller is not known. More to the point, the identity of the caller is not relevant. When EMS personnel arrived, they found Respondent unresponsive on the bathroom floor. Mr. Gorsuch recognized Respondent’s symptoms, including agonal breathing, as characteristic of an opioid overdose, and administered Narcan to counteract the effects of the suspected drug. The Narcan “worked,” and Respondent regained consciousness. EMS personnel discovered a plastic bag with loose pills in Respondent’s purse. The pills were taken with Respondent as she was transported by EMS to Riverside. Respondent was received at the Riverside emergency room shortly after midnight on November 21, 2015. Her condition was described as “drowsy but arousable with slurred speech.” Upon her arrival at Riverside, Ms. Quartano observed that Respondent was clutching a Ziplock-type bag of pills in her hand. How the pills came to be in her hand was not explained. Whether in her purse or in her hand, the pills were in Respondent’s possession. The pills were provided to Dr. McBride Johnson, who identified the pills as Dilaudid based on their shape, color, and markings. Respondent’s diagnosis upon admission was acute encephalopathy; poisoning by unspecified drugs, medicaments, and biological substances, accidental, initial encounter; and altered mental status. Respondent underwent a urine screening, which returned positive for benzodiazepines. Despite the fact that Respondent knew that she had taken “pills” during the evening in question, she denied to hospital personnel that she had taken any drugs or alcohol. As she had on November 9, 2015, Respondent self- discharged against medical advice, signing the discharge papers at 5:30 a.m. Upon her discharge from the hospital, Respondent was taken into custody by Sergeant Coleman from the Jacksonville Sheriff’s Office. Respondent told Sergeant Coleman that the Dilaudid had been given to her by a friend for back pain, and that she had them for several days. Despite her deposition testimony that she had taken pills allegedly provided to her by Mr. Nesmith, she told Sergeant Coleman that she had taken one of her previously prescribed Percocet tablets, and denied having taken any of the pills given to her by her “friend.” Respondent was then placed under arrest. Respondent’s mother had, for years, taken care of Respondent’s son while Respondent was working, often at night. Between November 2015 and January 2016, Respondent’s parents took over primary care of her son in order to provide him with a more stable environment. There is no evidence that Respondent ever diverted opioids, or any other drugs, from her employer. However, after having been visited by a Department of Health investigator, Respondent’s employer, University of Florida Health - Shands (Shands), first suspended and then, in January 2016, terminated Respondent’s employment as a registered nurse. On February 14, 2016, a Jacksonville Sheriff’s Deputy performed a traffic stop on Respondent after observing her fail to maintain her lane of traffic, stop past the stop bar at a stop light, drive up onto the curb nearly striking a pole, drive onto another curb and nearly onto the sidewalk, and while attempting to negotiate a turn, nearly strike another pole. The deputies called to the scene observed that Respondent had bloodshot eyes, slurred speech, lethargic movements, and that she was unsteady on her feet. She underwent Field Sobriety Exercises but failed to perform them to standard. Respondent testified that she had taken some over-the- counter sleeping medication at least 12 hours before being stopped. She could think of no reason why such medications would have had an effect on her by the time of the stop. Respondent stated that her erratic driving was caused by her vehicle pulling to the right and being difficult to control, which was consistent with her deposition testimony that it was because her car needed an alignment. That explanation was not believable. Respondent was arrested for driving while under the influence. The charges were ultimately reduced to reckless driving, but Respondent was required to attend DUI driving school, attend the DUI Victim Impact Panel, and perform community service. On March 15, 2016, Respondent was walking from her mother’s house to her car when she passed out in her mother’s yard. The Jacksonville Fire and Rescue Department responded, arriving at approximately 12:15 p.m. The EMS personnel administered Narcan to Respondent, and transported her to Baptist Medical Center (Baptist). By the time she arrived, she was able to communicate with medical personnel, and attributed the incident to a fight with her mother, and lightheadedness from not eating that day. Respondent testified that “they told me at the hospital that I had morphine in my system, and I had no morphine.” Respondent’s understanding of what she was told is not substantiated by the Baptist medical records. Thus, the evidence is not sufficient to support a finding that Respondent had morphine in her system on March 15, 2016. Respondent was discharged from Baptist at approximately 1:15 p.m., about an hour after her arrival. Beginning “towards the end of 2015,” and extending “maybe up until March or April [2016], maybe a little later,” Respondent went to the Jacksonville Metro Treatment Center where she received daily methadone treatments in an effort to wean herself off of controlled substances. She “somewhat” received counseling, but the substance of her testimony indicates that the methadone was the driving cause of her visits to the treatment center. She stopped attending the treatment center due to the cost. From April 2016, when she stopped receiving methadone treatment at the Jacksonville Metro Treatment Center, until June or July 2016, Respondent received outpatient Suboxone treatment at Merit Health River Region, which accepts Medicaid. Suboxone is like methadone, but it blocks opioid receptors. Respondent stopped going to River Region because it was hard for her to get there due to transportation issues. Respondent did not complete her treatment, and she was not advised that she was in remission or that she should discontinue her treatment. Respondent has received no substance abuse treatment since she stopped going to River Region. On or about March 17, 2016, Dr. Sanchez evaluated Respondent as allowed by section 464.018(1)(j). The evaluation included not only a face-to-face interview with Respondent, but included a review of records, including medical and law enforcement records, related to each of the incidents described herein. During the evaluation, Respondent advised Dr. Sanchez that she had used opioids “opportunistically” for about 10 years, with her usage being sporadic and impulsive. Respondent further advised Dr. Sanchez that she had used a Fentanyl patch three to four days prior to the evaluation. Pursuant to section 893.03(2)(b)9., Florida Statutes, Fentanyl is a Schedule II controlled substance with the same potential for abuse as Dilaudid. Respondent did not have a prescription for Fentanyl. Dr. Sanchez opined that Respondent’s use of Fentanyl that close to the evaluation, with the risk of detection in the toxicology screen, was an indication of the strength of her addiction. Respondent did not tell Dr. Sanchez about the March 15, 2016, incident during which she passed out in her mother’s yard, an incident that occurred only two days prior to the evaluation. She agreed that the incident would have been relevant to Dr. Sanchez’s evaluation. The failure to disclose the incident is indicative of an evasive attitude towards matters that would reasonably be expected to affect Respondent’s ability to practice nursing with reasonable skill and safety. Dr. Sanchez noted that Respondent had a history of emergency room visits over extended periods of time with different pain complaints, including back pain, abdominal pain related to gastric bypass surgery, and a broken tooth, all of which resulted in recommendations for short-term opiate therapy. Dr. Sanchez opined that Respondent’s actions suggested drug- seeking behavior. However, the maladies described, including a bulging disc from a car accident, and chronic tooth issues including, at the time of the evaluation, an abscess, were diagnosed by physicians, who prescribed pain management medications, and were not illusory. Regardless of whether Respondent’s use of opioids was initiated as a result of a medically-prudent prescription, the evidence is clear and convincing that Respondent’s use has passed to the stage of addiction. Dr. Sanchez opined that the incident on November 7, 2015, when Respondent took some form of opioid and picked up her child on the way home, ultimately losing consciousness at the wheel of her car, was evidence of a strong compulsion to use opioids. Dr. Sanchez’s opinion that this incident indicated a significant lack of judgment and control is credited. The incident on November 20, 2016, is further strong evidence of a growing and dangerous addition. In light of the other incidents described herein, and Respondent’s familiarity with opioids over the years, both as a patient and a nurse, Respondent’s testimony that she did not understand what she was taking that evening is simply not credible. Dr. Sanchez stated the circumstances surrounding Respondent’s February 14, 2016, arrest for driving under the influence is further evidence that Respondent was “losing control” of her addiction. The suggestion that the incident was the result of poor alignment is not credible, particularly in light of Respondent’s appearance and performance during the stop. Dr. Sanchez determined that Respondent refuses to accept responsibility for her behavior and remains in denial of her substance abuse issues, a conclusion that is supported and accepted. As a result of his evaluation, Dr. Sanchez diagnosed Respondent with severe opioid use disorder. He opined that Respondent has significantly impaired judgment due to her substance abuse, which precludes her from functioning as a registered nurse with the necessary skill and safety to patients. His testimony is credited. Dr. Sanchez further opined that Respondent requires an extended period of continuous supervision with monitoring, substance abuse treatment, random toxicology testing, and an extended period of time of documented abstinence from controlled substances before Respondent would be able to practice nursing with sufficient skill and safety to patients. He recommended that Respondent complete a full course of treatment geared to substance abuse and chemical dependency, initially as inpatient treatment, followed by an intensive outpatient program after a reasonable period of abstinence. Finally, Dr. Sanchez recommended that Respondent execute an Intervention Project for Nurses (IPN) monitoring agreement. IPN is the impaired practitioner program for the Board of Nursing, pursuant to section 456.076. IPN monitors the evaluation, care, and treatment of impaired nurses. IPN oversees random drug screens and provides for the exchange of information between treatment providers, evaluators, and the Department for the protection of the public. Respondent has not entered any form of inpatient treatment, though she indicated that she is currently on a wait- list for inpatient treatment, has discontinued outpatient treatment, and has not entered into an IPN agreement.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Nursing, enter a final order: determining that Respondent violated sections 464.018(1)(i) and 464.018(1)(j); imposing a suspension of license number RN 9375240 for one year and thereafter until such time as Respondent personally appears before the Board and can demonstrate the present ability to engage in the safe practice of nursing, with such demonstration to include at least one IPN evaluation in which the evaluator finds Respondent to be able to engage in the safe practice of nursing or recommend the conditions under which safe practice could be attained; requiring compliance with IPN recommendations and contract conditions, as imposed; imposing an administrative fine in the amount of $250.00; and awarding costs incurred in the prosecution of this case to the Department. DONE AND ENTERED this 29th day of November, 2016, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 November, 2016. COPIES FURNISHED: Lisa Michelle Jackson 2356 York Street Jacksonville, Florida 32207-3541 (eServed) Rob F. Summers, Esquire Brynna J. Ross, Esquire Prosecution Services Unit Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 (eServed) Nichole C. Geary, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 (eServed) Joe Baker, Jr., Executive Director Department of Health 4052 Bald Cypress Way, Bin C02 Tallahassee, Florida 32399-1701 (eServed) Jody Bryant Newman, EdD, EdS Department of Health 4052 Bald Cypress Way, Bin C02 Tallahassee, Florida 32399-1701
