Findings Of Fact Cirilo Alvarez, at all times pertinent to the allegations in the complaint, operated an adult congregate living facility in Lake City, Columbia County, Florida, Briar's Haven Adult Care Center, under license number 03-12- 0128-BPS, issued by the Florida Department of Health and Rehabilitative Services. In late July or early August, 1982, Respondent, who is a psychiatric nurse specialist and who works full time at North Florida State Mental Hospital (Hospital) at Macclenny, Florida, took Woodrow Harrison, an elderly patient at that institution, into his home, Briar's Haven Adult Care Center, on pass status from the Hospital for periodic short visits. Ultimately, on July 30, 1982, Harrison was released from Macclenny and began living full time at Respondent's facility. On August 3, 1982, Sharon Stucky, a registered nurse case manager for the North Florida Mental Health Center (Center) in Lake City, Florida, did an intake interview with Harrison, who had just been released from the Hospital and who was living at Respondent's facility. Mr. Harrison was brought into the Center by Respondent's wife. Records from the Hospital pertaining to Harrison, which came to the Center, reflected that he suffered from a seizure disorder and a diabetic condition. His medication consisted of 300 mg. of Dilantin daily and 30 mg. of phenobarbital daily, and he was to receive a daily insulin injection. At the time of his release from the Hospital, he was furnished with a thirty-day supply of these medications. On the afternoon of August 13, 1982, Mr. Alvarez went into the Center with Mr. Harrison and asked to see Ms. Stucky. Respondent indicated that Mr. Harrison was having many physical problems. Earlier in the day, he had taken Harrison back to Macclenny to have him readmitted for seizures, incontinence, etc., even though he was taking his medications, but officials at the Hospital refused to admit him. Mr. Alvarez wanted him admitted to some facility in Lake City. Stucky, indicating she would have to talk with Harrison before taking any action, did so and felt she could see no change in his condition since her first interview of him on August 3, and she decided she could not justify having him recommitted to the mental hospital. Since Stucky wanted to find out if the seizures were the result of a physical problem, and she could not do a physical herself, she requested that Respondent take Harrison to a doctor for an examination. The Respondent again demanded that Harrison be admitted and, when Ms. Stucky refused, stated he would take Harrison to the hospital and leave him. Ms. Stucky talked with her supervisor to see if there was any way that Harrison could be readmitted to Macclenny, and it was determined there was not. When the information was related to Mr. Alvarez, he departed with Mr. Harrison. Respondent then took Harrison to the emergency room at Lake City's Lake Shore Hospital. After a chart was prepared on Harrison, Alvarez departed, leaving Harrison there without his medications. When Alvarez first took Harrison in, he was told there would be an hour wait before Harrison could be seen. Alvarez asked if Harrison could sit there and wait, and the person on duty said, "Yes." Once that was arranged, Respondent left without Harrison. According to a report of the doctor on duty, Harrison was confused and incapable of giving a complaint or history. As a result, evaluation of him was difficult, and his well-being was compromised. Respondent subsequently made no effort to get Harrison's drugs to him by delivering them to Ms. Stuckv, nor did he inquire where Harrison was. Respondent's actions in dropping Mr. Harrison off at the Lake Shore Hospital unsupervised, and only calling to check on his status somewhat later, constitute an intentional abandonment which could have seriously affected Harrison's health, safety, and welfare. Somewhat later the same day, Respondent called Lake Shore Hospital to find out what Harrison's status was, but Harrison had already been placed in another adult care facility by Ms. Stucky when the hospital called her and told her of Harrison's situation. Respondent did not make any other calls. Ms. Stucky visited Harrison daily at this new facility and administered his insulin shot. He appeared to be doing well there and wanted to remain, but on August 17, 1982, he was readmitted to Macclenny, where he currently resides. Harrison is incapable of taking care of himself. He has a poor memory and is somewhat retarded and childlike, according to Stucky. He has no concept of time and could not administer his medicines to himself. He could not understand the need to take his medicine or remember to take it if he could. Since Mr. Harrison was dropped off at Lake Shore without either his medicines or a change of clothing, Stucky made several telephone calls to the Respondent to retrieve them. Mr. Alvarez was always out when she called, and Stucky talked with several different females who answered the phone and with whom she left messages requesting him to call her back. Alvarez did not return any of the calls, but he states he never received them. This is rossible since, he says, neither his mother nor his wife, two of the people at home who may have received the original calls from Stucky, speaks much English. Respondent provided Mr. Harrison with all the clothes he had except those he was wearing when he came from Macclenny. Upon the advice of individuals at Macclenny who he could not remember to identify, Respondent applied for Social Security benefits to support Harrison while he was at Respondent's facility. Because Harrison had no family, Respondent sought the counsel of the legal aid office in Lake City to see if he could be appointed Harrison's legal guardian and was told he could not. In late January or early February, 1983, Respondent received one Social Security check in the amount of $1,900 made out to Harrison and Mrs. Alvarez. This check was not cashed because Harrison was no longer with the Respondent, but was returned to the Social Security Office. Harrison's medicines that were in Respondent's possession when Harrison was taken to the hospital were discarded. Respondent worked with Harrison at Macclenny for about a year before taking him to his own facility. During that time to his knowledge, Harrison never had any seizures. Respondent gave him his medications at Macclenny and knew he needed drugs. When he took Harrison to his facility, he took Harrison's drugs as well.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Secretary of the Department of Health and Rehabilitative Services enter a final order revoking the Adult Congregate Living Facility License of Cirilo Alvarez, doing business as Briar's Haven Adult Care Center. RECOMMENDED this 1st day of April, 1983 in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of April, 1983. COPIES FURNISHED: James A. Sawyer, Jr., Esquire District III Legal Counsel Department of Health and Rehabilitative Services 2002 NW 13th Street, 4th Floor Gainesville, Florida 32601 Mr. Cirilo Alvarez Post Office Box 2392 Lake City, Florida 32055 Mr. David H. Pingree Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue In its petition, Florida Psychiatric Centers (FPC) alleges that HRS seeks to grant a CON to Florida Residential Treatment Centers, Inc. (FRTC), based on the agency's unpromulgated policy that ". . . at least one residential treatment center should be approved in each of DHRS' eleven health planning districts in Florida, regardless of the need for such facilities." (Petition, page 2, paragraph 6.) FPC argues that the policy is a "rule" and is invalid as a rule because it has not been adopted pursuant to Section 120.54, F.S., and because it conflicts with Sections 381.493, F.S., and 381.494, regarding need criteria. Further, FPC argues the "rule" is arbitrary and violates due process because the agency predetermines need regardless of the availability of like and existing services. HRS and Intervenor, FRTC, argue that the policy is incipient and needs not be promulgated. Further, the policy does not obviate a determination of need. HRS and FRTC claim that FPC lacks standing to bring this action, as its facility is a hospital and not the same as an intensive residential treatment program. HRS admits that the alleged policy has not been promulgated under Section 120.54, F.S. The issues for determination in this proceeding are summarized as follows: Whether FPC has standing to bring this action; Whether HRS has a policy regarding CON approval of intensive residential treatment programs, and whether that policy is a "rule"; and If the policy is a rule, is it an invalid rule?
Findings Of Fact FPC is a partnership which has received CON #2654 to construct a 100- bed psychiatric hospital in the Plantation/Sunrise area of West Broward County. The facility is under construction and will include 80 short-term psychiatric beds (40 geriatric, 15 adolescent, and 25 adult beds) and 20 short-term substance abuse beds. FPC anticipates an average length of stay of approximately 28 days for adults and less than 60 days for adolescents. FRTC is owned by Charter Medical Corporation. It proposes to build and operate a 60-bed intensive residential treatment program for children and adolescents in Broward County. The proposed facility will treat children and adolescents in need of psychiatric services. Its anticipated average length of stay is approximately one year. If it is awarded a certificate of need, FRTC intends to obtain licensing by HRS pursuant to Chapter 395, F.S., and Chapter 10D-28 F.A.C. No other facility licensed as an intensive residential treatment program, as defined in subsection 395.002(8), F.S. (1987), is available in Broward County. On March 11, 1987, HRS issued CON #4851 to FRTC for its 60-bed facility. A challenge to that CON is pending in DOAH consolidated cases #87- 2046/87-2400/87-2401. FPC is a petitioner in the case, with Florida Medical Center and South Broward Hospital District. Section 395.002(8), F.S., defines "Intensive Residential Treatment Programs for Children and Adolescents as: . . . a specialty hospital accredited by the Joint Commission on Accreditation of Hospitals which provides 24-hour care and which has the primary functions of diagnosis and treatment of patients under the age of 18 having psychiatric disorders in order to restore such patients to an optimal level of functioning. When completed, FPC will be accredited by the Joint Commission on Accreditation of Hospitals; it will provide 24-hour care and will have the primary function of diagnosis and treatment of patients with psychiatric disorders and problems of substance abuse. Unlike the other psychiatric hospitals in Broward County, FPC will have a campus-like setting and separate buildings for the various services. FPC will not be a locked facility. With the exception of the length of stay, the services provided by FPC for its adolescent patients will be essentially the same as an intensive residential treatment program, as defined above. Until recently, HRS has had very few CON applications for intensive residential treatment programs. HRS has considered that these programs must undergo CON review only if they seek licensure as a specialty hospital. In considering need for intensive treatment programs, HRS does not consider unlicensed residential treatment programs to be like and existing services because HRS is not required to review unlicensed facilities; HRS would not have any way of knowing all the programs in operation and would have no control over the services offered. This policy is similar to the policy HRS employed in conducting CON review of ambulatory surgery centers. In those cases, HRS did not consider the outpatient surgery being performed in physicians' offices. Because the legislature has created a special definition of intensive residential treatment facility, and because the State Health Plan seeks a continuum of mental health services, HRS presumes there is a need for a reasonably sized intensive residential treatment facility in each planning district. This presumption can be rebutted with evidence in a given case, such as the fact that the district has few children with mental illnesses, or that such programs have been tried and failed, or that parents in the area prefer to send their children outside the district. Moreover, any applicant for a CON for an intensive residential treatment facility must evidence compliance with the myriad criteria in Section 381.705, F.S. (1987), and in Chapter 10-5, F.A.C. Although there is no specific bed need methodology adopted by HRS for intensive residential treatment facilities, other psychiatric services, such as long-term psychiatric care, are also evaluated without a numeric bed need methodology. HRS has applied its presumption of need policy in intensive residential treatment program CON reviews at least since 1983. One reason why the policy has not been adopted as a rule is that there have been so few applications in that category. In the experience of Elizabeth Dudek, Health Facilities and Services Consultant Supervisor, the first level supervisor for CON review, there were merely three applications of this type prior to a recent batch of three more applications. FPC's Petition to Determine Invalidity of Agency Rule(s) alleges that HRS' policy is ". . . at least one residential treatment center should be approved in each of DHRS' eleven health planning districts in Florida, regardless of the need for such facilities." (paragraph 6) FPC further alleges that HRS construes Chapter 395 as requiring it to ". . . automatically approve at least one residential treatment center in each DHRS health planning district regardless of whether the statutory criteria for need in Section 381.494(b), F.S. [renumbered and amended as Section 381.705, F.S., in 1987] would be met by the applicant." (paragraph #7) These allegations were not proven in this proceeding and are rejected in favor of the less rigid presumption of need policy described in findings of fact #7 and #8, above.
The Issue Whether the Respondent discriminated against the Petitioner by failing to promote the Petitioner as set forth in the claim.
Findings Of Fact The Petitioner was an employee at the South Florida State Hospital (the Hospital) from October 15, 1979, until approximately October 31, 1998. On the latter date, a private company assumed full management of the hospital. From that time neither the Respondent nor its predecessor (Florida Department of Health and Rehabilitative Services) has maintained management or administration of the facilities. Prior to October 31, 1998, the Hospital was operated by a State of Florida agency. As of October 31, 1998, the Petitioner ceased to be a State of Florida employee. The Petitioner is a black female. On or about May 6, 1997, the Petitioner applied and interviewed for a job at the Hospital. She sought the position of Unit Treatment and Rehabilitation Director. At that time, the Hospital advertised two open positions for Unit Treatment and Rehabilitation Director. Three applicants were ranked for the open positions. Among the three, the Petitioner was ranked third by the selection committee. At or near the same time, the administrator of the Hospital received notice that he would have to cut positions from his budget. This slashing of employee positions was in response to budget demands created at the agency level. It had nothing to do with the job performances of employees at the Hospital. In fact, the Petitioner has always received favorable employee performance evaluations. She was a valued employee at the Hospital and was considered to be hard working by peers and supervisors alike. Nevertheless, when faced with the directive to cut positions, the administrator elected to eliminate open or unfilled positions. Pertinent to this case is the slot that the Petitioner would have filled had it not been eliminated. At least under one theory, the Petitioner would have been promoted to Unit Treatment and Rehabilitation Director had the position not been deleted. The promotion would have happened because one of the higher-ranked applicants for the job chose to reject the Hospital's offer of employment. Thus as the third-ranked applicant, the Petitioner would have been selected. Notwithstanding the foregoing, the Petitioner maintained she should have received the position of Unit Treatment and Rehabilitation Director that was filled by an individual named Driscoll. She maintains that although Driscoll was the highest-ranked applicant, she was equally or better qualified for the promotion. Driscoll is a white male. Prior to his employment at the Hospital, Driscoll had served as the director of a short-term residential facility. He had also been the director of case management for a hospital and had supervised other case managers and support staff. The Petitioner had no similar or equivalent supervisory experience. The Petitioner had never supervised employees to any level of supervision as demonstrated by Driscoll at the time of the selection process. The advertised opening sought an individual with "a bachelor's degree and four years of professional direct services experience in a social, rehabilitative or health care treatment program, two of which must have been in a supervisory capacity." The Hospital's consideration of the Petitioner's role as a "lead worker" was a generous allowance. Technically, the Petitioner did not meet the job description requirements. Additionally, the Petitioner's advanced degree did not qualify her for the position of Unit Treatment and Rehabilitation Director. The advertisement for the position of Unit Treatment and Rehabilitation Director provided that a: . . . masters degree in health, special education or one of the behavioral or rehabilitative sciences can substitute for one year of the required [sic] nonsupervisory experience. A doctorate degree in health, special education or one of the behavioral or rehabilitative sciences can substitute for the required [sic] nonsupervisory experience. The Petitioner did not hold either the referenced master's degree or doctorate degree. The Petitioner was not an equally qualified or a superiorly qualified applicant for the position of Unit Treatment and Rehabilitation Director. Nevertheless, when she was not chosen for the position the Petitioner wrote a memorandum to the Commission to complain about the selection of Driscoll. The memorandum stated: A blatant campaign of racism reigns at South Florida State Hospital. Most recently, the hospital advertised for the position of Unit Treatment and Rehabilitation Director. Two (2) positions were to be filled as a result of that advertisement. Qualified applicants were interviewed from within the hospital. There were two (2) Afro-American and three (3) Anglo-Saxon applicants. Of the two (2) Afro-American applicants applying, I met all of the qualifications to fill one (1) of the positions. Over the dissent of others on the interviewing committee, Patricia Espinosa Thomson (acting hospital administrator) re-advertised the position(s). On September 12, 1997, the Commission acknowledged receipt of the Petitioner's Memorandum of June 27, 1997, and, in accordance with a Worksharing Agreement with the Equal Employment Opportunity Commission (EEOC), the complaint was forwarded to the Miami District Office of the EEOC. This complaint became the subject matter of the instant case. The Commission's notice to the Petitioner provided: Within 35 days of notice of EEOC's Letter of Determination regarding the above referenced complaint, you may request the FCHR to review the final finding and orders of the EEOC by requesting a Substantial Weight [sic] Review. There is no evidence regarding whether the Miami District issued a Letter of Determination. It is undisputed, however, that the Commission did not issue its Notice of Determination until October 9, 2001. The Notice of Determination represented that the Respondent was advised of the Petitioner's claim in January of 1998. The Notice of Determination also recognized that the Respondent had asserted that the claim was "time-barred" and that it would not provide information regarding the claim. Based upon the inference found in Rule 60Y-5.003(4), Florida Administrative Code, the Commission entered a determination of cause. The Commission apparently did nothing to timely investigate the complaint, did not act within 180 days of its filing, and did not notify the Hospital that its records should be maintained in connection with the allegations of this case. When the Hospital went to private management all public records that had been maintained were stored or destroyed according to agency rules. There was no effort to conceal or destroy records related to this matter. The Hospital administrators faced the daunting tasks of trimming the Hospital FTEs, preparing for and transitioning to the private company, and organizing records for storage. There was no effort to single Petitioner out for discriminatory purposes. When eventually questioned regarding this case, the Department elected not to participate in the investigation as under the then known precedent it was not required to do so. The Department's decision predated Joshua v. City of Gainesville, 768 So. 2d 432 (Fla. 2000). Both parties claim prejudice as a result of the delays in pursuing this cause. The Petitioner maintains that records that would have helped her assessment of the matter have been either lost or destroyed. The Respondent maintains that witness unavailability, loss of records, and the fact that it does not even manage the Hospital anymore compounds its inability to appropriately respond to the Petitioner's claim. What is certain is the fact that the Department cannot award the position to the Petitioner. Further, even at the time in question, the Hospital could not have awarded the position to the Petitioner since the position had been eliminated. The only way the Petitioner could have gotten the position would have been if Driscoll had been removed. And, as previously noted, the Petitioner was not equal to or superior to Driscoll in her qualifications for the position. In June 2002, the instant case was heard on a motion to dismiss. That motion was granted. The conclusions of law from the Recommended Order of Dismissal found that the Division of Administrative Hearings does not have jurisdiction over the subject matter of this proceeding. Despite that conclusion, the Commission entered an Order Remanding Petition for Relief from an Unlawful Employment Practice. Accordingly, this matter was re-opened and scheduled for hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing the Petitioner's claim. DONE AND ENTERED this 25th day of March 2003, in Tallahassee, Leon County, Florida. ___________________________________ J. D. Parrish Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Hearings 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 this 25th day of March, 2003. COPIES FURNISHED: Paul Flounlacker, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Randy A. Fleischer, Esquire 4801 South University Drive, Suite 3070 Davie, Florida 33328 Sondra R. Schwartz, Esquire Department of Children and Family Services 201 West Broward Boulevard, Suite 502 Fort Lauderdale, Florida 33301
Conclusions THIS CAUSE comes before the State of Florida, Agency for Health Care Administration. (the "Agency") regarding the approval of certificate of need ("CON") applications 10170 and 10171 filed by Oglethorpe or Orlando, Inc. (“Oglethorpe”). 1. Oglethorpe filed CON application No. 10170 to establish a 28-bed adult inpatient psychiatric hospital in Osceola County, Service District 7. The Agency approved Oglethorpe’s CON application 10170. 2. Oglethorpe also filed CON application 10171 to establish a 14-bed adult inpatient substance abuse hospital in Osceola County, Service District 7. The Agency approved 1 Filed October 21, 2013 3:45 PM Division of Administrative Hearings Oglethorpe’s CON application 10171. 3, University Behavioral, LLC, d/b/a University Behavioral Center (*UBC”) filed petitions for formal hearing challenging the Agency’s approval of both of Oglethorpe’s CON applications. 4, La Amistad Residential Treatment Center, LLC, d/b/a Central Florida Behavioral Hospital (“CFBH”) filed petitions to intervene contesting the Agency's approval of both of Oglethorpe’s CON applications. 5. The parties have since entered into the attached settlement agreement. (Ex. 1) IT IS THEREFORE ORDERED: 6. The parties’ settlement agreement is approved and the parties shall comply with the terms of the settlement agreement. 7. The approval of Oglethorpe’s CON application 10170 is UPHELD in accordance with the terms and conditions set forth in the parties’ settlement agreement. 8. The approval of Oglethorpe’s CON application 10171 is UPHELD in accordance with the terms and conditions set forth in the parties’ settlement agreement. ORDERED in Tallahassee, Florida on this wha day of Crfolee. 2013. Elizabeth Agency for Hpalth Care Administration
Other Judicial Opinions A party who is adversely affected by this final order is entitled to judicial review, which shall be instituted by filing the original notice of appeal with the agency clerk of AHCA, and a copy along with the filing fec prescribed by law with the district court of appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review proceedings shall be conducted in accordance with the Florida appellate rules. The notice of appeal must be filed within 30 days of the rendition of the order to be reviewed. CERTIFICATE OF SERVICE 1 HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been furnished by U.S. Mail or electronic mail to the persons named below on this day of Cet OF er. 2013. Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308 (850) 412-3630 Janice Mills Facilities Intake Unit Agency for Health Care Administration (Electronic Mail) James McLemore, Supervisor Certificate of Need Unit Agency for Health Care Administration (Electronic Mail) W. David Watkins Administrative Law Judge Division of Administrative Hearings (Electronic Mail) Lorraine M. Novak, Esquire Assistant General Counsel Agency for Health Care Administration (Electronic Mail) Michael J. Glazer, Esquire Ausley McMullen 123 South Calhoun Street Tallahassee, Florida 32301 Counsel for Oglethorpe (U.S. Mail) Geoffrey D. Smith, Esquire Smith & Associates 2834 Remington Green Circle, Suite 201 Yallahassce, Florida 32308 Counsel for UBC and CFBH (U.S, Mail)
