The Issue Whether Petitioner is entitled under Florida’s workers’ compensation laws to payment for professional services to an injured worker for the billings identified by the three notices of disallowance at issue in this consolidated proceeding.
Findings Of Fact The claimant, a male, was born July 21, 1961. On February 17, 1995, the claimant sustained a severe traumatic brain injury (TBI) and other injuries during the course of his employment with the City of Hollywood, Florida. At all times relevant to these proceedings, the claimant has been receiving benefits pursuant to the Florida workers’ compensation laws. At all times relevant to this proceeding, the carrier has been the workers’ compensation carrier for the employer. At all times relevant to this proceeding, the claimant has lived in a home purchased for him by the carrier. The claimant has a life estate in the home and the carrier has the remainder interest. The claimant lives in the home with his mother and has 24-hour attendant services paid for by the carrier. The carrier has purchased a van for the claimant, which his attendant uses to transport the claimant to therapy and other appointments. The claimant has a history of mental illness dating to his teenage years, when he was diagnosed with schizophrenia. As a result of his injury and his illness, the claimant acts out periodically and becomes physically resistive to those trying to care for him. At all times relevant to this proceeding, Petitioner has been a provider of rehabilitation services to various patients, including those with TBI. Dr. Marie DiCowden, a psychologist, is the founder and director of Petitioner. Dr. DiCowden described Petitioner as being a health care community that provides an integrated administration for a long continuum of care post acute rehabilitation through community reintegration using health promotion, prevention, and integrated primary care. Petitioner is accredited by two national accrediting organizations referred to by the acronyms CARF (Commission on Accreditation of Rehabilitation Facilities) and CORF (Commission on Outpatient Rehabilitation Facilities). Petitioner is also certified by the Florida Division of Vocational Rehabilitation (formerly housed in the Department of Labor and now housed in the Department of Education), the Florida Division of Workers’ Compensation, and by the Florida Brain and Spinal Cord Injury Program.4 As a result of his accident, the claimant was in a coma for several weeks. He was hospitalized (first in an acute care facility and subsequently in two different rehabilitation hospitals) until December 28, 1995, when he was placed in Whitehall Nursing Home. Whitehall was not an appropriate placement for the claimant because of his behavior and his need for rehabilitation services. On March 27, 1996, Yvonne Beckman, a rehabilitation nurse consultant employed by the carrier, referred the claimant to Petitioner for an evaluation. Shortly before that referral, the claimant had been evaluated by two neuropsychologists (Dr. Jorge A. Herra and Dr. Lee. H. Bukstel), who had opined that the claimant would benefit from rehabilitation services. Ms. Beckman asked Dr. DiCowden to recommend a neurologist who practiced in South Florida. In response, Dr. DiCowden gave Ms. Beckman the names of three neurologists, one of whom was Dr. Paul Wand. Ms. Beckman authorized Dr. Wand to provide services to the claimant. Dr. Wand prescribed continued rehabilitation services for the claimant at Petitioner’s facility. The services at issue in this proceeding were provided by Petitioner pursuant to prescriptions from Dr. Wand.5 Prior to accepting the claimant, Dr. DiCowden informed a representative of the carrier that Petitioner would accept the claimant as a patient in its brain injury program and estimated the annual costs to be $200,000.00. The claimant began receiving rehabilitation services from Petitioner five days a week beginning August 1, 1996. The claimant received from Petitioner’s staff physical therapy, occupational therapy, cognitive retraining, speech training, language training, psychological services, art therapy, music therapy, and yoga therapy. The claimant continued to receive those rehabilitation services from Petitioner (five days a week) from August 1996 to the date of the hearing (and presumably to date). The authorization for the provision of rehabilitation services to the claimant was periodically reviewed by the carrier. In November 1998, the carrier had the claimant examined by Dr. Richard Bailyn (a neurologist) and by Dr. Kevin Lapinski (a neuropsychologist). Those doctors opined that the claimant was not benefiting from cognitive retraining, occupational therapy, speech therapy, or language therapy at Petitioner’s facility. They further opined that the claimant required an activity program to satisfy his recreational and stimulation needs, but that such a program did not require Petitioner’s facility since the claimant’s aide could be trained to provide those services. Dr. Bailyn was of the opinion that as of November 1998 the various therapies provided by Petitioner’s facility to the claimant were not reasonable and were not medically necessary. Section 440.13(6), Florida Statutes, requires a carrier to review bills by providers of medical services as follows: (6) UTILIZATION REVIEW.--Carriers shall review all bills, invoices, and other claims for payment submitted by health care providers in order to identify overutilization and billing errors, including compliance with practice parameters and protocols of treatment established in accordance with this chapter, and may hire peer review consultants or conduct independent medical evaluations. Such consultants, including peer review organizations, are immune from liability in the execution of their functions under this subsection to the extent provided in s. 766.101. If a carrier finds that overutilization of medical services or a billing error has occurred, or there is a violation of the practice parameters and protocols of treatment established in accordance with this chapter, it must disallow or adjust payment for such services or error without order of a judge of compensation claims or the agency, if the carrier, in making its determination, has complied with this section and rules adopted by the agency. As required by Section 440.13(6), Florida Statutes, the carrier conducted a utilization review of the services provided by Petitioner to the claimant beginning in late 1999. The carrier retained Dr. Thomas G. Hoffman to review the claimant’s medical records and to express opinions pertaining to the services provided to him by Petitioner. On April 10, 2000, Dr. Hoffman submitted a report that included several conclusions, including those that follow. The claimant has severe, residual deficits as a result of his accident. He requires 24-hour attendant care. There is no reasonable expectation for further improvement. The therapy he was receiving at that time (and still receives) was not reasonable or medically necessary. The therapy was excessive in frequency and duration. Dr. Hoffman’s deposition testimony was consistent with his written report. The carrier retained Dr. Victor B. Robert to review the claimant’s medical records and to express opinions pertaining to the services provided to him by Petitioner. On June 19, 2000, Dr. Robert submitted a report that included several conclusions, including those that follow. The treatment rendered by Petitioner was excessive in frequency and duration. The claimant reached an improvement plateau in early 1997 and therapy was thereafter needed only for maintenance reasons. Dr. Robert’s testimony was consistent with his written report. The carrier retained International Assessment Systems, Inc. (IAS), a professional association of various medical practitioners, to conduct an independent neurological, neuropsychological, and psychological examination of the claimant. On September 22, 2000, IAS submitted a report (Intervenors’ Exhibit 8) based on the examinations of claimant and the review of his medical records by Dr. Kenneth C. Fischer, Dr. Alan J. Raphael, and Dr. Charles J. Golden. The report included several observations and conclusions, including those that follow. The testimony of Drs. Fischer, Raphael, and Golden was consistent with the written report they prepared for IAS. Pages 12-13 of the IAS report contain the following: [The claimant] was oriented to person, but not to place or time. He did not know the current day, date, month, or year. His sensorium was significantly impaired. His mood was volatile, ranging from normal to agitated. His affect was similarly labile, at times he was placid, laughing, and able to converse at a basic level, however he was also quite violent. Attention and concentration were significantly impaired. His receptive, expressive and fluency language capabilities were similarly impaired, although, as noted, he was capable of basic/functional [sic] communication. There were no direct indications of hallucinatory or delusional phenomena, however, based on his behavior, it is likely that some hallucinatory or delusional phenomena were present. His reality testing and insight were significantly impaired. During his repeated fits of anger, he often uttered suicidal and homicidal threats, however there was no evidence of actual intent or plan. He showed no ability to monitor his own safety. Page 15 of the IAS report contains the following: From a neuropsychological and psychological perspective, there were gross impairments noted in his cognitive abilities and emotional functioning. . . . He has been afforded considerable time to maximize his cognitive recovery at this point. It is clear that he has plateaued with regard to cognitive improvement. He will not benefit from continued rehabilitation efforts, although he will require continued stimulation to avoid further cognitive decline. His mood and labile affect may also be benefited by continued stimulation in terms of recreational activities to provide appropriate quality of life.6 Page 17 of the IAS report contains the following under the heading “Neurologic Impression”: . . . I [Dr. Fischer] would recommend that he be placed in a supervised residential setting which will give better protection for him and his caregivers than his present home setting. As the patient is four and a half years status post-injury, specific rehabilitative and therapeutic endeavors will have no benefit and are unwarranted. This would relate to hyperbaric oxygen and cognitive rehabilitation was well as any form of physical, occupational, or speech therapies. Page 19 of the IAS report contains the following: [The claimant] was certainly aided by initial removal from the nursing home and receiving cognitive and physical therapies at Biscayne. However, he has long since reached a plateau in his improvement and no further improvement can be expected at this time. Maximum medical improvement should have been reached within 18 to 24 months post-injury. Any treatment after that time would be palliative or maintenance-oriented (sic). Therefore, the treatment prescribed by Dr. Wand became unreasonable and medically unnecessary several years ago. Page 20 of the IAS report reflects the opinion that while the treatments at Petitioner’s facility were excessive in all respects, the claimant does require maintenance rehabilitation services. It is opined that cognitive retraining is no longer appropriate, but that cognitive tasks and games are appropriate in a recreational setting. By letter dated October 27, 2000, the carrier, through its counsel, advised Petitioner that based on its Utilization Review investigation, it had concluded that as to the identified dates of service “. . . there has been overutilization and/or misutilization since the treatment has been excessive and not medically necessary.” This Letter of Disallowance was the first of a series of letters sent by counsel for the carrier to Petitioner, and frames the issues for all of the disallowances at issue in this proceeding. Thereafter, Petitioner timely disputed the carrier’s basis for disallowing its services to the claimant and petitioned the Respondent to resolve the dispute. The total amount disallowed and at issue in this consolidated proceeding is $615,587.00. Respondent employed four Expert Medical Advisors (EMAs) to perform peer review and assist it in resolving the dispute involving the rehabilitation services provided the claimant by Petitioner. Respondent employed Dr. Fernando G. Miranda, Dr. Jorge Villalba, Dr. Gerard P. Garcia, and Dr. David McCraney to serve as EMAs.7 Each of these doctors prepared a report following his review and each sat for deposition. Dr. Miranda’s report, dated September 17, 2001, is attached to his deposition (Intervenors’ Exhibit 17). The report included several conclusions, including those that follow. The referral for intensive multi-disciplinary treatment at Petitioner’s facility is no longer medically necessary. The services provided by Petitioner are excessive in frequency and duration and he will not further improve with speech therapy, cognitive retraining, occupational therapy, or individual psychotherapy. Maintenance physical therapy is recommended. Dr. Miranda testified in his deposition that the recommended physical therapy could be performed by the claimant’s attendant. Dr. Miranda’s deposition testimony was consistent with his written report. Dr. Villalba’s report dated October 15, 2001, is attached to his deposition (Intervenors’ Exhibit 19). The report included several conclusions, including those that follow. The claimant reached maximum medical improvement between February 1996 and October 1997. Dr. Villalba described the services provided by Petitioner to claimant “clearly not medically necessary” after October 1997. He also opined that the claimant will require maintenance physical therapy, occupational therapy, and speech and language therapy on a continuing basis. Dr. Villalba’s deposition testimony was consistent with his written report. Dr. Garcia’s undated report was prepared during the second week of October, 2001, and is attached to his deposition (Intervenors’ Exhibit 16). The report included several conclusions, including those that follow. The claimant should be on a maintenance program and Petitioner’s treatment was excessive. The claimant is unlikely to make further neuropsychological improvement, but he should be treated by a psychiatrist for his schizophrenia. Dr. Garcia’s deposition testimony was consistent with his written report. Dr. McCraney’s report dated November 18, 2001, is attached to his deposition (Intervenors’ Exhibit 18). The report included several conclusions, including those that follow. While the care provided Petitioner appears to be excellent, the claimant is far beyond the point where Petitioner’s therapies would be reasonable or medically necessary. Dr. McCraney’s deposition testimony was consistent with his written report. Dr. DiCowden testified at length about the various services her facility provides the claimant and the records her staff generates as a result of those services. Dr. DiCowden testified that her staff is well-trained in assessing the functional status of rehabilitation patients using nationally recognized assessment methodologies. FIN-FAM, acronyms for “Functional Independence Measures” and “Functional Assessment Measures” is one assessment measure used by Petitioner’s staff. The FIN-FAM measure purports to quantify a patient’s progress or lack thereof and can be used by staff as a tool in developing treatment strategies. Dr. DiCowden presented a chart of the FIN-FAM scores for the claimant for the periods at issue in this proceeding. The chart, prepared for this litigation, reflects steady functional improvement of the claimant. Dr. DiCowden further testified that Petitioner’s staff uses a scale of cognitive functioning developed by a rehabilitation facility known as Rancho Los Amigos Hospital, which measures a patient’s response to stimuli on a scale of Ranch Level I (no response) to Ranch Level VII (appropriate response). She asserts that the measurement of the claimant’s status using the Rancho methodology reflect that the claimant has improved over the years. In support of its position that the claimant steadily progressed while undergoing therapy at its facility, Petitioner presented the testimony of Drs. Antonio Puente, Vernando Batas, and Richard Kishner who observed the claimant at Petitioner’s facility on June 23, 2003, September 13, 2003, and February 24, 2004, respectively. Each of these witnesses had the subjective impression that the claimant was benefiting from therapy at Petitioner’s facility. Petitioner asserts that the FIN-FAM scores, the Rancho Levels, and the testimony of its experts establish that the claimant is benefiting from therapy. That assertion is rejected as being contrary to the greater weight of the credible evidence. The FIN-FAM scoring and the Rancho scale depend on the subjective impressions of the various therapists who treat the claimant at Petitioner’s facility and the record reflects that the scoring was done on an irregular basis.8 Dr. DiCowden adamantly disagreed with the contention that the rehabilitation services provided by her facility is not reasonable or medically necessary. All evidence presented by Petitioner, including Dr. DiCowden’s testimony, has been carefully considered by the undersigned in resolving the conflicts in the evidence. At best, Petitioner established that the claimant made some unquantified amount of progress in the highly structured therapeutic setting at Petitioner’s facility. Intervenors’ experts clearly established that any progress made by the claimant in therapy did not transcend that therapeutic setting to the real world. Petitioner failed to establish by a preponderance of the evidence that the rehabilitation services it provided the claimant were appropriate and medically necessary. To the contrary, the greater weight of the credible evidence established that at all times relevant to this proceeding the rehabilitation services provided by Petitioner to the claimant have been excessive and that those excessive services have been neither reasonable nor medically necessary.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration issue a final order that sustains the disallowances at issue in this consolidated proceeding. DONE AND ENTERED this 15th day of June, 2004, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of June, 2004.
Findings Of Fact Petitioner has had a relationship with his wife since they were 16 years old. At the time the hearing was conducted, husband and wife were 24 years old. They had been married for approximately three years and had a child who was four years old. Beginning February 1995, Petitioner became suspicious that his wife was having an affair with another man. Around that time, the couple argued several times a week. This would cause Petitioner to leave their home. In addition, Petitioner and Mrs. McCall would not speak to each other for a couple of days following these arguments. On March 16, 1995, the man with whom Petitioner's wife was having the relationship called the couple's home. On that occasion, Mrs. McCall would not say who was speaking to her on the telephone and appeared secretive. It led to a further argument between Petitioner and Mrs. McCall. Petitioner then grabbed his keys and started to leave. Mrs. McCall struggled with him to get the keys out of his hand. During the struggle, Mrs. McCall was scratched on her chest. The noise that the couple made was sufficiently noticeable that the neighbors called the police to investigate. When the police arrived at Petitioner's home on March 16, 1995, Petitioner was sitting on the couch. The police noticed the visible marks on Mrs. McCall's chest. Consequently, Petitioner was charged with battery under Section 784.03, Florida Statutes. On March 18, 1995, Petitioner pled no contest to the offense of battery for the incident that took place on March 16, 1995 involving his wife. He was given two days unsupervised probation and required to pay $75.00 in court costs. The court adjudicated Petitioner guilty of the offense. After the March 16, 1995 incident the McCalls continued to argue. On April 11, 1995, when Petitioner left home to go to work that morning, he told Mrs. McCall that he was going to leave work in the afternoon and travel to Deland, Florida, to see his father. Instead, Petitioner went home that afternoon to get some papers before making the trip to see his father. When he arrived at his home a person named Renee, Mrs. McCall's friend, was watching the McCalls' child in one room, while Mrs. McCall was in bed with her male acquaintance in the McCalls' bedroom. When Petitioner discovered his wife with another man, he began to scream and yell and picked up his son to leave the home. Mrs. McCall tried to intervene and stop Petitioner from leaving the home with her son. During the course of this incident, Petitioner grabbed his wife by the arms and pushed her aside, causing her to fall against the wall. The areas upon which she was grabbed by Petitioner were bruised. Mrs. McCall is prone to bruising because she is a hemophiliac. Their child was not harmed during this physical exchange between the couple. After the exchange, Petitioner left the home and went to Deland, leaving the child with his mother. Before discovering his wife in bed with the other man, Petitioner did not know, as a matter of fact, that his wife was having a relationship with that person. When Petitioner discovered his wife in bed with the other man, he did not threaten her, notwithstanding the yelling and screaming. Renee had called the police when Petitioner arrived at the home, but the police did not arrive for one-half hour to one hour after Petitioner had left the home. Mrs. McCall was concerned about how her husband would react beyond the point where he had discovered her with another man. Therefore, she determined to make a complaint about her husband's physical activity in which he bruised her arms. Based upon that complaint, the police determined to arrest Petitioner. Following the trip to Deland Petitioner came back that night and spent the night with a friend in Jacksonville, Florida. The next morning Petitioner called Mrs. McCall and inquired concerning the circumstances of their exchange. Mrs. McCall told him that she had called the police after he left because she was afraid of what he might do to her and that made her "press charges". Petitioner responded by telling his wife where he was located and telling her to have the police come to that location and pick him up, which they did. When the police arrested Petitioner for the events on April 11, 1995, they again charged him with a violation of Section 784.03, Florida Statutes, and made mention that the battery for which he was accused was associated with domestic violence. Following the arrest, Mrs. McCall spoke with the state attorney's office to have them drop the charges for the battery that occurred on April 11, 1995. The state attorney's office was unwilling to drop the charges in view of the prior charge dating from March 16, 1995. Petitioner pled no contest to the battery offense related to the April 11, 1995 incident. He was given a 30-day sentence, credited with serving two days of the sentence, and the remaining 28 days of that sentence were suspended, conditioned upon the successful service of probation. The probation was served for nine months. Petitioner was adjudicated guilty for the offense and was required to participate in a program for individuals who had committed offenses involving domestic violence. The program emphasized controlling one's aggression. Petitioner completed the program related to management of his aggression. In the program to deal with domestic violence, Petitioner and other participants were required to discuss the experiences they had concerning domestic violence. The McCalls lived apart from April, 1995 until January, 1996. During that time, Petitioner kept their child for the most part because his living arrangements were more suitable than those under which Mrs. McCall existed. While they were estranged, initially, the couple did not do things together and would separately spend time with their child. At the end of their estrangement the couple began to do things as a family unit. Subsequent to being reunited, the McCalls had been seeing a marriage counselor for about a month at the time the hearing was conducted. The McCalls had been to four sessions with the counselor and intended to continue seeing a marriage counselor in the future. The McCalls described their relationship as improving since they have been reunited. Prior to the events in March and April, 1995, in which Petitioner battered Mrs. McCall in the manner described, Petitioner had never struck his wife. As explained at the hearing, Mrs. McCall is not concerned that her husband will batter her in the future. Petitioner holds a bachelor's degree in psychology. He has one year of study in sociology in a bachelor's-level program. In the past, he worked two and one-half years for ARA Living Centers, providing direct care to adults. He left that position and took employment with an organization known as New Directions. This was a mental-health position, working with children on an out- patient basis. Petitioner held this job for approximately two years. Beyond that point, Petitioner took a position as a child-guidance case worker in a mental-health capacity. It was that position that prompted the screening that was conducted in January, 1996, leading to the decision to disqualify him from that employment. The procedures followed in the disqualification are as detailed in the preliminary statement above. Petitioner contested the decision to deny him an exemption from disqualification. His request to be heard before the Respondent and to seek a formal hearing to contest the preliminary decision by Respondent denying the exemption from disqualification were both timely filed. Before being terminated from his position as a child-guidance counselor based upon the disqualification, Petitioner had worked voluntarily at a group home for children. In the past, when working with children and adults, Petitioner has never been disciplined or reprimanded concerning his conduct in providing that care. Mr. George Robinson is an HRS Protective Services worker. He began work with Respondent on June 12, 1995. Prior to that employment, Mr. Robinson worked in the Mental Health Center in Jacksonville, Florida, as a discharge planner. Mr. Robinson knew Petitioner when they attended college. He considers Petitioner his friend and speaks highly of Petitioner's character. In addition, Mr. Robinson is familiar with Petitioner's work history and recommended that Petitioner receive a position at the Mental Health Center of Jacksonville, Florida, where Petitioner was employed from November 15, 1993 through November 30, 1995. Jane Escobar, M.S.W., Manager, Children's Department for the Mental Health Center of Jacksonville, Inc. refers to Petitioner's work history with that organization. Among the duties Petitioner performed with the organization was as an individual assigned to the Therapeutic Group Home within the Mental Health Center, in which position Petitioner worked with emotionally-disturbed children. This work entailed association with counseling groups, individual social skills training, chart documentation, and recreational activities. It also involved interaction with families and other treating professionals. Following receipt of his bachelor's degree, Petitioner was promoted to a position of mental-health counselor within the Mental Health Center, a position which required him to carry a case load of approximately 15-18 clinical cases, involving individual counseling with children, family work, and often involving seeing the children in their homes, as well as at their schools, and in his office. Petitioner left the position with Mental Health Center of Jacksonville in good standing to pursue a career-enhancing position. Ms. Escobar considers Petitioner to be a well-liked and a highly-respected clinician. Ms. Escobar indicates that the Mental Health Center would willingly return Petitioner to employment if a position were available at the Center. Mr. Val Thomas has written to commend Petitioner for his work as a counselor for Mr. Thomas' son. Mr. Thomas attributes Petitioner's good works for helping the Thomas family to correct problems which their son was having. Ms. Nancy Edmonds, a clinical social worker, speaks favorably of Petitioner, whom she has known in a professional and personal capacity for two years. She is impressed by Petitioner's moral character and finds Petitioner to be an understanding and caring person. She has found him capable of dealing with the most difficult circumstances in their work, without losing his composure. She finds that he works well with children and adolescents. Mr. Brian J. Maxson is the First Step Coordinator at Hubbard House, the facility in which Petitioner participated in group sessions concerning his conduct toward his wife, as a condition of his probation. Mr. Maxson confirms that Petitioner completed that program. At present, Petitioner works with AT&T in soliciting customers to use its services. He had held that position for two months when the hearing commenced.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered granting Petitioner an exemption from disqualification to work with children in positions of special trust. DONE AND ENTERED this 14th day of June, 1996, in Tallahassee, Florida. CHARLES C. ADAMS, 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 14th day of June, 1996.
Findings Of Fact At all times material to this proceeding, the Petitioner has been in the custody of the Respondent pursuant to an Order entered by the Circuit Court in Pinellas County, Florida, pursuant to Chapter 917, Florida Statutes. Petitioner is presently housed at the Florida State Hospital in Chattahoochee, Florida, where he is receiving treatment in the hospital program for mentally disordered sex offenders. The Respondent has informally determined that it has exhausted all appropriate treatment of the Petitioner in its program. The program for mentally disordered sex offenders at Florida State Hospital and at other institutions requires a high degree of motivation on the part of the patient. The primary treatment program is group therapy. The Petitioner has participated in group therapy sessions and adjunctive therapy programs, such as Alcoholics Anonymous, school, and leather "occupational therapy. His condition has been diagnosed as borderline mental retardation, possible organic brain syndrome as epilepsy, personality disorder sexual deviation, and a seizure disorder. The patient's participation in the adjunctive therapy programs has been adequate. His participation in group therapy, however, which is of primary importance, has not been adequate. He has attended sessions regularly, but has participated very little. He has not talked about his own or other people's difficulties. At times during group sessions he laughed inappropriately. In order to improve his communications skills, the petitioner was referred to a communications skills assertiveness training group in January, 1980. He attended the program and was cooperative, but it did not improve his participation in the primary group therapy program. The Petitioner has not been an overt management problem at the hospital, but he has been resentful, argumentative, and uncooperative. He appears comfortable with his life-style at the hospital, and with his propensity to commit sex offenses. The Petitioner was presented to a staff disposition conference which consisted of members of the treatment team in the program for mentally disordered sex offenders. The consensus of the staff was that the Petitioner had not shown distress about his problems and did not appear motivated to change. The Petitioner's case was presented to representatives of other programs for mentally disordered sex offenders in Florida, but noise of the participants felt that the Petitioner would benefit from their programs. It appears that the Respondent has exhausted all of the treatment possibilities that could be of benefit to the Petitioner. The Petitioner has complained of numerous physical ailments, for which he asserts he has received inadequate attention at the hospital. He contends that had he received better treatment for his medical difficulties, he would have participated more freely in the primary treatment program. The Petitioner also contends that if he were placed in a program near to where his family lives, he would be more motivated to treatment. The Petitioner's effort to blame his lack of motivation on the staff at the hospital rather than on himself indicates further that it is not likely that he would receive benefit from a program that requires a high degree of motivation.
Findings Of Fact Petitioner applied to the Board of Medicine for licensure by endorsement as a physician in the State of Florida. The Board of Medicine is the regulatory agency in the State of Florida charged with the duty to regulate the practice of medicine in the state, including the licensure of physicians. Petitioner has been in psychotherapy as a patient of Dr. Stanley G. Garner since 1986. Dr. Garner was qualified and accepted as an expert witness in the speciality of psychiatric medicine. Petitioner began psychotherapy with Dr. Garner and has remained in therapy with him on a voluntary basis. The purpose and emphasis of Petitioner's psychotherapy has been the identification and resolution of ongoing family problems, including marital and divorce issues, which have been imposed upon an earlier history of being raised in a dysfunctional family. Petitioner was very upset when she first saw Dr. Garner in 1986 due to events that resulted in protracted divorce proceedings. The purpose of Petitioner's therapy has never been to assess or ensure Petitioner's fitness to practice medicine since this was never a therapeutic issue to either the Petitioner or to Dr. Garner. Petitioner's psychotherapy has been directed towards improving her comfort, happiness, and quality of life. Dr. Garner has spent over 400 hours in therapy with Petitioner and has diagnosed Petitioner as having Dysthymia, which is a fairly recent term for a depressive condition that used to be called neurotic depression or depressive neurosis. Dysthymia was described by Dr. Garner as being an extremely common condition and one that is shared by many of his physician patients without impairment of their ability to perform as physicians with reasonable care and skill. According to the Diagnostic and Statistical Manual of the American Psychiatric Association, the diagnosis of Dysthymia has to include the presence of at least two of the following conditions while depressed: (1) poor appetite or over eating, (2) insomnia or hypersomnia, (3) low energy or fatigue, (4) low self esteem, (5) poor concentration or difficulty making decisions, (6) feelings of hopelessness. Dysthymia does not usually lead to sudden changes in personality or behavior, and Dr. Garner has noted no sudden changes in Petitioner's personality during the course of his treatment of her. Petitioner's application reflected that she had undergone psychotherapy as a patient of Dr. Garner since 1986. In response to the application, Respondent required information from Dr. Garner as to Petitioner's treatment. By his letter of July 17, 1991, Dr. Garner provided Respondent with historical information as to Petitioner's condition and her psychotherapy and advised Respondent, in pertinent part, as follows: Dr. Shienvold has been in psychotherapy with me, on a regular basis, since 9/13/86 for treatment of her depressive disorder. She is currently being seen weekly in individual psychotherapy and weekly in group psychotherapy. The frequency of her visits has varied during the course of her treatment. Currently, she is taking Prozac 20 mg. each morning; this medication seems to be helping her cope with the many pressures of her current life situation. She was not on medication during most of her time in therapy. * * * Dr. Shienvold's diagnosis is Dysthymia (300.40 DSM III-R). She has never shown any evidence of a psychotic disorder and has no history of, nor propensity for, substance abuse. Her prognosis is excellent, but she definitely needs ongoing psychotherapy for the foreseeable future. There are still many current vocational, financial, familial, and parental pressures which impede her more rapid progress. I have no doubt, however, that she will overcome these obstacles and continue to be a dedicated and hard working physician. This applicant for medical licensure, in my professional opinion, will certainly be able to practice medicine with reasonable skill and safety. Given her very high level of intelligence and her rapidly increasing fund of knowledge and experience, along with her genuine caring devotion to her patients, I am convinced that Dr. Shienvold will become a truly outstanding physician and do honor to our profession. If my comments seem flowery and excessive, it is because in my almost 35 years as a physician, and as a psychiatrist to a large number of fellow physicians, I have only rarely seen someone as qualified to practice Medicine as Frances Shienvold. As part of the application process, Respondent arranged for the Physician's Recovery Network (PRN) to have Petitioner examined by an independent psychiatrist. This examination was performed in January 1992 by Dr. Burton Cahn. On February 24, 1992, Dr. Cahn submitted his report to Dr. Goetz by letter. Dr. Cahn's letter provided, in pertinent part, as follows: At the present time, I see no reason why Dr. Shienvold would be unable to practice medicine because of a mental or emotional condition. She is not psychotic. She is not a substance abuser. She is not at this time significantly depressed. She does not represent a danger to herself or to others. I therefore find no reason on a mental or emotional basis that Dr. Shienvold is unable to practice medicine. The record in this proceeding is not clear when the idea that a monitoring contract with the PRN would be deemed necessary by the Board of Medicine. It is apparent from Dr. Garner's follow-up letter to the Board of Medicine on January 16, 1992, that Petitioner was aware at that time that such a condition may be imposed on her licensure by Respondent. Dr. Garner's letter of January 16, 1992, provided, in pertinent part, as follows: It is my professional opinion that the assignment of Dr. Shienvold to the Physicians Recovery Network was an error. The requirement that she sign an Advocacy Contract with "PRN" is inappropriate for her situation, and would be for anyone else with her particular medical/psychological history. There is certainly no need for any kind of "monitoring" of her continuation in psychotherapy. . . . * * * In summary, I believe that Dr. Shienvold should be granted her Florida license to practice medicine without any special conditions or restrictions. . . . * * * Her diagnosis remains the same (Dysthymia), and her prognosis is excellent. By letter dated February 26, 1992, Dr. Goetz advised the Board of Medicine that "Dr. Cahn finds no reason why Dr. Shienvold would be unable to practice medicine with reasonable skill and safety." Dr. Goetz's letter of February 26, 1992, also provided the following: "If the Board chooses to license this applicant, I would be pleased to monitor Dr. Shienvold's continuing treatment with a PRN contract." By Order dated March 16, 1993, the Board of Medicine approved Petitioner's application for licensure by endorsement with a condition. The Board's Order provided, in pertinent part, as follows: You are hereby notified pursuant to Section 120.60(3), Florida Statutes, that the Board of Medicine voted to APPROVE with certain requirements your application for licensure as a physician by endorsement. The Board of Medicine reviewed and considered your application by endorsement on October 2, 1992, in Miami, Florida and has determined that said licensure by endorsement be APPROVED with the requirement that you establish a monitoring contract with the Physician Resource Network (PRN). The Board stated as grounds therefore: That you have a history of successful psychotherapy for a depressive disorder that requires ongoing treatment. Although your ability to practice medicine has not been compromised, it is appropriate to establish monitoring to ensure continued successful treatment. At its February 6, 1993, meeting in Jacksonville, Florida, the Board denied your request for reconsideration of this matter. The requirement set forth herein is a requirement for licensure and should not be interpreted or applied as disciplinary action by the Board. The Physician's Resources Network referred to by the foregoing Order is the same organization as the Physician's Recovery Network. The PRN is also referred to as the Impaired Practitioner Program. The purpose of the PRN program is to protect the public by assuring the health and well being of licensed health practitioners in the State of Florida. Dr. Garner's testimony at the formal hearing was consistent with the opinions he expressed in his two letters to Respondent. Petitioner has been responsible in securing appropriate medical care for herself including psychiatric care, and has been a cooperative patient while under Dr. Garner's care. For most of her psychotherapy, Petitioner has been seeing Dr. Garner twice a week. At the time of the formal hearing, she was seeing him once a week. Dr. Garner has no reason to believe that she would irresponsibly discontinue her therapy or become uncooperative in the foreseeable future. Petitioner has not suffered severe Dysthymia, but she has been at times severely depressed. Those occasions when she was severely depressed were in reaction to her mother's death and in reaction to her abandonment by her father and by her husband. Prior to entering medical school, Petitioner held a Ph.D. in cell biology and anatomy. Over the past seven years she has gone through a divorce, reconciled with her mother, suffered the death of her mother, become estranged from her father and stepmother, and completed medical school. At the time of the formal hearing, she had almost completed her residency. Petitioner has never been found to be unfit to practice medicine with requisite levels of skill and care at any time during her residency. Petitioner has participated in a residency program at Jackson Memorial Hospital for approximately three years. The residency program includes participation in out patient clinics at Mt. Sinai Hospital and service in regular hospital wards, the emergency room, intensive care units for both neonatal patients and other pediatric patients. As a resident, Petitioner worked under the general supervision of a licensed physician, but she had ample opportunity to independently exercise her professional responsibilities and judgment. Petitioner's ability to practice medicine with fitness and safety has not been impaired by Dysthymia, any other mental or emotional condition, or the medication she takes for the Dysthymia. Her memory has not been impaired. At any given time, a person suffering from depression can have difficulty in concentrating or in making decisions. The evidence in this proceeding established that Petitioner's ability to concentrate and to make decisions in the day to day practice of her profession has not been impaired. Her interest in her patients has not been impaired. She does not suffer from unusual fatigue. Petitioner has various medical conditions that add stress to her life. She suffers from sinus problems which have resulted in surgery and ongoing treatment for infections, hypertension, hyperthyroidism, gastritis which includes duodenitis, and esophageal reflux. Petitioner continues to suffer financial and family problems relating to her father, stepmother, brother, and son. Petitioner can still become very upset at times. It is anticipated that Petitioner will remain under Dr. Garner's care for at least one more year. Petitioner intends to continue in psychotherapy until her symptomology is fully resolved. Dr. Garner considers Petitioner's prognosis to be excellent, but is of the opinion that she needs ongoing psychotherapy for the foreseeable future. Dr. Garner is of the opinion that Petitioner could practice medicine with the requisite skill and safety if she were to discontinue psychotherapy completely. At the time of the formal hearing, Petitioner had been taking Prozac for approximately two years. Prozac is an antidepressant which helps Petitioner keep her mood at a high level while she deals with difficult problems in psychotherapy. Dr. Garner is of the opinion that Petitioner can practice medicine with the requisite level of skill and safety without Prozac. He is of the opinion that it is best for her to continue to take Prozac and that there are no significant side effects to the medication. Dr. Roger Goetz is the director of the PRN program and was accepted as an expert in Respondent's impaired practitioner program. The purpose of a monitoring contract with the PRN is to monitor whether there is a failure of a participant to progress in psychotherapy, if there is a change in medication, if there is any discontinuance of therapy, or if there is a change of treating professionals. Dr. Goetz considers the monitoring contract to be the least intrusive way to establish a relationship between the participant and the PRN program. Dr. Goetz is of the opinion that it is in Petitioner's best interest and the best interest of the public that she be in a monitoring contract with the PRN as a condition of her licensure because the contract would provide confirmation that Petitioner is doing well in her therapy before it became necessary to institute a disciplinary action or investigation, the contract would ensure that no abnormal transference was going on, and the contract would, in light of her psychiatric treatment, give assurance that she poses no problem to the public welfare. Dr. Goetz made it clear that he was testifying as the Director of the PRN and that he was not attempting to speak on behalf of the Board of Medicine. He also made it clear that it was the responsibility of the Board of Medicine to decide whether a practitioner needs services from the PRN and that the PRN becomes involved after the Board of Medicine determines that a practitioner needs its services. The terms and conditions of the monitoring contract would be negotiated by the parties after the Board of Medicine enters a Final Order that requires the imposition of a monitoring contract. Because those negotiations have not occurred, Dr. Goetz could only testify as to the terms he would expect to be contained in a monitoring contract. In addition to the reports required of the treating psychiatrist, the contract would confer on the PRN the authority to require Petitioner to withdraw from practice for evaluation if the PRN determines that "any problem" has developed. The monitoring contract is expected to be of at least five years duration and, according to Dr. Goetz, be imposed as long as Petitioner is in therapy without regard to the purpose or the nature of her therapy. Dr. Garner is of the opinion that PRN monitoring would impede rather than ensure Petitioner's progress in therapy because it would diminish the underlying confidentiality of therapy. From the proceedings before the Board of Medicine, it is apparent that the board considered the information contained in Petitioner's application file, including the opinions expressed by Dr. Garner and by Dr. Cahn before entering its Order of March 16, 1993. At the formal hearing, there was no articulation of the reasons the Board of Medicine had for determining that Petitioner's history of psychotherapy and the fact that the psychotherapy was ongoing justified the imposition of the monitoring contract with the PRN.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order which unconditionally grants Petitioner's application for licensure to practice medicine by endorsement. DONE AND ENTERED this 29th day of November, 1993, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of November, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3038 The following rulings are made on the proposed findings of fact submitted by Petitioner. The proposed findings of fact in paragraphs 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 22, 25, 26, 27, 29, 32, 33, 34, and 40 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 2 are adopted by the Recommended Order or are subordinate to the findings made. The proposed findings of fact in paragraphs 19, 20, 21, 23, 24, 28, 30, 31, 35, 36, 37, 42, and 43 are subordinate to the findings made. The proposed findings of fact in paragraphs 38 and 41 are rejected as being unnecessary as findings of fact, but are consistent with the conclusions reached. The proposed findings of fact in paragraph 39 are rejected as being speculative. The proposed findings of fact in paragraph 44 are rejected as being unnecessary to the conclusions reached. The following rulings are made on the proposed findings of fact submitted by Respondent. The proposed findings of fact in paragraphs 1, 2, 3, 4, 5, 7, 8, 10, 11, 13, and 14 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 6 and 9 are adopted in part by the Recommended Order. These proposed findings of fact are, in part, rejected as being inconsistent with the findings made. The proposed findings of fact in paragraph 12 are adopted as being opinions expressed by Dr. Goetz. COPIES FURNISHED: Howard J. Hochman, Esquire 1320 South Dixie Highway, Suite 1180 Coral Gables, Florida 33146 Claire D. Dryfuss, Esquire Assistant Attorney General Office of the Attorney General The Capitol, PL-01 Tallahassee, Florida 32399-1050 Dorothy Faircloth, Executive Director Board of Medicine Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0770 Jack McRay, Acting General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0770
The Issue The issue posed for decision herein is whether or not the Petitioner, Johnny Eddines, should be transferred from the Ft. Lauderdale Try Center. At the hearing, the Petitioner appeared on behalf of himself and also called Bernard Rubrecht, a rehabilitation counselor, and Estella Reid, Petitioner's mother. Petitioner was afforded the opportunity to cross-examine other witnesses who appeared and testified on behalf of Respondent. Respondent presented the testimony of Herbert Burrows, a program specialist employed by Respondent for approximately 17 years, presently with the Children's youth and Family Division; Michelle Parrish, a group treatment leader at the Try Center; Veda Hamilton, a community control employee of Respondent since approximately 1975; Willie Hamilton, a district intake supervisor employed with Respondent approximately nine years; and Gregory Johnson, a supervisory employee of the Ft. Lauderdale Try Center and an employee of Respondent for approximately 12 years.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received, and the entire record compiled herein, the following relevant facts are found. As stated above, Petitioner was placed in the Ft. Lauderdale Try Center on March 19, 1982. At the time of his assignment to the Try Center (Center herein) Petitioner was advised of the requirement that he abide by the rules and regulations of the Center (testimony of Parrish, Burrows, Veda and Willie Hamilton, and Gregory Johnson). Petitioner was given an orientation of the Center at the time of his commitment and was thoroughly apprised of the Center's rules and regulations. In this regard, Petitioner signed an agreement expressing his obligation to abide by the Center's rules and regulations. Petitioner was given an entrance test when he was enrolled in the Center and he tested out on the "top level." Immediately upon his enrollment at the Center, Petitioner was counseled respecting his attitude ad behavior and the necessity of his being able to get along with other enrollees at the Center. On April 4, 1982, it was necessary for Petitioner to again have a conference with Ms. Parrish about his "obnoxious behavior." Approximately two months after Petitioner was enrolled at the Center, he was made a house manager by Ms. Parrish in an effort to foster better relations and such that he would be regarded as a role model by other enrollees. During a beach trip during early April of 1982, Ms. Parrish requested that Petitioner perform certain chores, as other enrollees were requested to do, whereupon Petitioner engaged in a lengthy emotional outburst involving the use of profanity and displaying of offensive behavior directed toward Ms. Parrish. Following that incident, Ms. Parrish recommended that Petitioner be demoted from house manager as he was not a proper role model for other enrollees. On April 7, 1982, Ms. Parrish called in Veda Hamilton to discuss Petitioner's behavior and his failure to abide by the Center's rules and regulations. Also, on April 15, 1982, Petitioner left the Center and returned, according to Ms. Parrish, under what appeared to be an influence of drugs. On April 28, 1982, Petitioner was arrested for uttering at Taylor's Liquor Store. Throughout this period of time, Ms. Parrish had numerous consultations with Petitioner wherein he (Petitioner) used profanity and other abusive language. Following these incidents, Ms. Parrish recommended that Petitioner be transferred from the Try Center program. During late May, 1982, when Petitioner was arrested at Taylor's Liquor Store for uttering, Ms. Hamilton observed Petitioner at a bar drinking a beer. At that time, Ms. Hamilton discussed with Petitioner the recommendation that his assignment at the Try Center would likely be revoked and the further recommendation that he be sent to the Eckerd Youth Development Center at Okeechobee, Florida. On June 21, 1982, a hearing was held with Petitioner and representatives of Respondent wherein the recommended transfer of Petitioner to the Eckerd Youth Center was considered. Petitioner was afforded the opportunity to present witnesses and to cross-examine other witnesses who appeared on behalf of Respondent. Following that hearing, on June 21, 1982, an Order of Transfer was issued by Respondent transferring him (Petitioner) from the Try Center's program based on, inter alia, Petitioner's continued acts of delinquency and his failure to abide by the rules and regulations of the Try Center's program.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Respondent enter a Final Order transferring Petitioner from the Ft. Lauderdale Try Center to a higher-restrictiveness category treatment program more consistent with his needs. RECOMMENDED this 17th day of January, 1983, in Tallahassee, Florida. JAMES E. BRADWELL, 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 17th day of January, 1983. COPIES FURNISHED: Johnny Eddines 222 North West 22nd Ave. Ft. Lauderdale, Florida 33311 Lawrence Francis Kranert, Jr., Esquire 1000 South Federal Highway (Suite 103) Ft. Lauderdale, Florida 33316 Alicia Jacobs, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32301 Mr. David H. Pingree Secretary Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32301
Conclusions THE PARTIES resolved all disputed issues and executed a Settlement Agreement. The parties are directed to comply with the terms of the attached settlement agreement. Based on the foregoing, this file is CLOSED. DONE and ORDERED on this the ----3_ day of J--+Ni 1_c..y....,....,_-..._.{_· , 2014, m Tallahassee, Florida. /\ /' f ' .' C \ ).;'-(/ '((l /r- ELIZABETH DUDEK, SECRETARY (Agency for Health Care Admforstration A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. (OPPOSING COUNSEL) Peter A Lewis, Esquire 302 North Shannon Lakes Drive Suitel0l Tallahassee, Florida 32309 (Via U.S. Mail) Bureau of Health Quality Assurance 2727 Mahan Drive, Mail Station 9 Tallahassee, Florida 32308 (Interoffice Mail) Stuart Williams, General Counsel Agency for Health Care Administration 2727 Mahan Drive Building 3, Mail Station 3 Tallahassee, Florida 32308 (Interoffice Mail) Shena Grantham, Chief Medicaid FFS Counsel Agency for Health Care Administration 2727 Mahan Drive Building 3, Mail Station 3 Tallahassee, Florida 32308 (Interoffice Mail) Karen Chang, Bureau Chief Medicaid Program Analysis 2727 Mahan Drive Building 2, Mail Station 21 Tallahassee, Florida 32308 (Interoffice Mail) Agency for Health Care Administration Bureau of Finance and Accounting 2727 Mahan Drive Building 2, Mail Station 14 Tallahassee, Florida 32308 (Interoffice Mail) Zainab Day, Medicaid Audit Services Agency for Health Care Administration 2727 Mahan Drive, Mail Station 21 Tallahassee, Florida 32308 (Interoffice Mail) Kristin M. Bigham Office of the Attorney General The Capitol PL - 01 Tallahassee, FL 32399-1050 (Via US Mail) State of Florida, Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (Via U.S. Mail) CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to the above named addressees by U.S. Mail on this the of -;,;;-D, 2014. Richard Shoop, Esquire Agency Clerk State of Florida Agency for Health Care Administration 2727 Mahan Drive, Building #3 Tallahassee, Florida 32308-5403
