The Issue The issue in the case is whether the allegations of the Administrative Complaint (as limited by the Notice of Limitation of Issues dated June 15, 2004) are correct, and if so, what penalty should be imposed.
Findings Of Fact At all times material to this case, the Respondent was a licensed mental health counselor, holding Florida license number ME 5853. In approximately July 2001, the Respondent began to counsel a five-year-old female, allegedly the victim of sexual abuse by an uncle, the brother of the child's mother. The Respondent believed, based on information provided by the father, that the uncle resided with the child's mother. The child's father had custody of the child, and the mother had some type of visitation rights. In approximately November of 2001, the Respondent began counseling the child's father and his girlfriend for various family-related issues. Towards the end of 2001 or early 2002, the father and his girlfriend married. Although the Respondent testified at the hearing that the couple "seemed to have plenty of money to do certain things," including personal care and entertainment expenses, she apparently believed, based on what she was told by the couple, that they had financial difficulties. The couple resided in a home owned by the child's father. Apparently based solely on the couple's representations, the Respondent believed that the father was in arrears on house payments. One of the issues addressed in counseling was the father's concern that, were he to lose his house, the child would be returned to the mother's custody, where the uncle resided. Also apparently based solely on the couple's representations, the Respondent believed that the couple wanted to purchase a new house and that they needed $7,000 to buy the house. In March of 2002, the Respondent loaned the couple $7,000. The couple repaid within a few weeks a total of $9,000 to the Respondent. At the time of the $7,000 loan, the clients owed to the Respondent a balance of approximately $3,200 in unpaid professional fees related to therapeutic services provided to them by the Respondent. The Petitioner asserts that the $9,000 repaid to the Respondent included interest charges of $2,000. Petitioner's Exhibit number one is a copy of a document dated March 20, 2002, and apparently notarized on March 21, 2002. The document appears to require that the couple repay to the Respondent by not later than May 16, 2002, a principal amount of $7,000 plus $2,000 in "interest" for a total of $9,000. The genesis of the document is unclear. At the hearing, the wife testified that the document memorialized the agreement between the Respondent and the couple. The Respondent testified that she did not require preparation or execution of any loan documentation. The Respondent testified that the funds received from the couple included repayment of the loan plus payment of $2,000 towards the unpaid professional fees. Based on the candor and demeanor of the witnesses at the hearing, the Respondent's testimony as to the basis for the payment of the $2,000 is credited. Subsequent to the loan and repayment transactions, the therapeutic situation deteriorated between the Respondent and the couple, particularly as to the wife, who began to believe that the Respondent was romantically involved with the husband. The therapeutic relationship between the couple and the Respondent dissolved acrimoniously within a few months after the loan. At the hearing, the Petitioner presented the expert testimony of Dr. Owen Wunderman, a Florida-licensed mental health counselor, and Dr. Andrew Wenger, a Florida-licensed psychologist. Both testified as to the Florida Statutes and as to ethical standards adopted by the American Counseling Association (ACA) applicable to the fact situation at issue in this proceeding. The Respondent presented the expert testimony Dr. Barbara Herlihy, a professor at the University of New Orleans and a licensed professional counselor in Louisiana and Texas. Dr. Herlihy has been involved with the adoption of the existing ACA standards and has written texts related to the issue of dual relationships in counseling situations. As identified during the hearing, the ACA standards address the issue of dual relationships as follows: Avoid when possible. Counselors are aware of their influential positions with respect to clients and they avoid exploiting the trust and dependency of clients. Counselors make every effort to avoid dual relationships with clients that could impair professional judgment or increase the risk of harm to clients. (Examples of such relationships include, but are not limited to, familial, social, financial, business, or other close personal relationships with clients.) When a dual relationship cannot be avoided, counselors take appropriate professional precautions such as informed consent, consultation, supervision, and documentation to ensure that judgment is not impaired and no exploitation occurs. Both Dr. Wunderman and Dr. Wenger testified that by making the $7,000 loan to her clients, the Respondent entered into a dual relationship (counselor and creditor) with the couple, and that in doing so, the Respondent failed to meet minimum standards of performance in professional activities when measured against generally prevailing peer performance, as well as violated the ACA standards. Dr. Wunderman testified that there was a meaningful risk of non-repayment of the $7,000 loan, given that the clients were several thousand dollars in arrears in paying professional fees, thereby increasing the likelihood that the therapist/creditor would have to take legal action against the clients for repayment, an action likely to impair professional judgment or increase the potential risk of harm to the clients, whether or not legal action was actually initiated. Dr. Herlihy testified that she did not regard the fact situation at issue in this case as a dual relationship because she viewed it as a "one-time" short-term loan and that there was no evidence that the counseling relationship between the parties was harmed. Dr. Herlihy testified that she viewed the situation as a "boundary crossing." Dr. Herlihy acknowledged that short of loaning a client a small sum for cab fare, she was unaware of any mental health counselor making a loan to a client such as occurred in this case. She also acknowledged that she was not familiar with professional performance standards as specifically applied to Florida practitioners. The weight of the evidence establishes that Drs. Wunderman and Wenger are more familiar with the minimum standards of professional performance as measured against generally prevailing peer performance within the State of Florida. The testimony of Dr. Wunderman and Dr. Wenger is credited.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a final order finding the Respondent has violated Subsection 491.009(1)(r), Florida Statutes (2002), and imposing a fine of $1,000, a reprimand, and a one-year period of probation. DONE AND ENTERED this 13th day of January, 2005, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 13th day of January, 2005. COPIES FURNISHED: Ellen M. Simon, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 William N. Swift, Esquire William N. Swift, Attorney at Law 901 Southwest Martin Downs Boulevard Suite 208 Palm City, Florida 34990 Susan Foster, Executive Director Board of Clinical Social Work, Marriage and Family Therapy & Mental Health Counseling Department of Health 4052 Bald Cypress Way, Bin C-08 Tallahassee, Florida 32399-1701 R.S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701 Quincy Page, Acting General Counsel Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701
The Issue The issue for determination is whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what action should be taken.
Findings Of Fact At all times material hereto, Bret L. Lusskin (Respondent) was a licensed physician in the State of Florida, having been issued license number ME 0007919. Respondent has been practicing medicine in Florida for approximately 33 years. Respondent is board-certified in orthopedic surgery. On January 8, 1992, the Department of Professional Regulation, Board of Medicine (Board of Medicine) filed a Final Order of disciplinary action against Respondent in DOAH Case No. 90-1565, DPR Case Nos. 89-07389, 89-011684, and 89- 011856. By the Final Order, the Board of Medicine reprimanded Respondent's license and further ordered the following: Within 60 days, Respondent must be evaluated by a psychiatrist approved by the Physician's Recovery Network and must comply with all recommendations of said psychiatrist including entering into and complying with a contract with the Physician's Recovery Network, if applicable. Respondent shall not examine or treat any female patients without a female employee who is a health care professional licensed by the Department of Professional Regulation present in the room. Respondent must complete the continuing medical education course offered by the University of South Florida and the Florida Medical Association entitled, "Protecting Your Medical Practice: Clinical, Legal, and Ethical Issues in Prescribing Abusable Drugs," or an equivalent course approved by the Board. Respondent appealed the Board of Medicine's Final Order to Florida's Fourth District Court of Appeal, Case No. 92-0251. The appellate court filed its decision, which was "Per Curiam Affirmed," on December 9, 1992, and issued its Mandate on February 26, 1993. On April 7, 1993, the Board of Medicine filed a Final Order of disciplinary action against Respondent in DPR Case Nos. 90-03022 and 92-03622, in which Administrative Complaints were filed against Respondent. One of the Administrative Complaints, Case No. 92-03622, filed on July 13, 1992, was based upon Respondent's failure to present himself for evaluation by a psychiatrist approved by the Physician's Recovery Network (PRN) within 60 days of the Board of Medicine's Final Order filed on January 8, 1992. The Final Order in DPR Case Nos. 90-03022 and 92-03622 approved a consent agreement involving the cases. The consent agreement provided, among other things, that Respondent neither admitted nor denied the allegations of fact in the Administrative Complaints, that Case No. 92-03622 be dismissed, that Respondent be reprimanded, and that an administrative fine of $2,000 be imposed. On January 29, 1993, following the appellate decision, a psychiatric evaluation of Respondent was performed at the University of Florida, College of Medicine in Gainesville, Florida, by Dr. George W. Barnard, M.D., a psychiatrist, and Dr. Michael J. Herkov, Ph.D. Dr. Barnard was a professor and Director of the Forensic Psychiatry Division at the University, and Dr. Herkov was an assistant professor at the University. Dr. Barnard was approved by PRN. Among other things, Drs. Barnard and Herkov administered several psychological tests to Respondent. The tests were the Minnesota Multiphastic Personality Disorder (MMPI), Million Clinical Multiaxial Inventory (MCMI), and the Rorschach Inkblot Test. Drs. Barnard and Herkov opined, among other things, that Respondent suffers from a "dysthymic condition" and from "characterological problems that play a considerable role in his [Respondent's] behavior." Further, Drs. Barnard and Herkov opined that Respondent denies any responsibility for his inappropriate conduct, instead blaming his patients, and that such denial places Respondent "at serious risk to continue to engage in these inappropriate behaviors." Drs. Banard and Herkov made several recommendations. Concerned with the "intransigence of [the] characterological traits and the strength and pervasiveness of his [Respondent's] current denial," Drs. Banard and Herkov recommended, among other things, that Respondent participate in a structured and intensive inpatient psychotherapy treatment program, specializing in sex offenders; that, after the inpatient treatment, Respondent receive long-term psychotherapy in his local community with a therapist trained in dealing with sexual offenders, noting that prior outpatient psychotherapy had been ineffective; that periodic reports be made to the PRN; that Respondent become a member of the local Caduceus Group; and that Respondent continue the practice of always having a female assistant present when examining a female patient. Furthermore, Drs. Banard and Herkov stated that Respondent's "motivation for change appears to be poor, and any intervention program hinges to a great extent on patient [Respondent] willingness to change" and that Respondent "may have to be faced with dire consequences before he possesses the necessary motivation to participate in such a program." Respondent desired a second opinion. On April 9, 1993, a second psychiatric evaluation of Respondent was performed at the University of South Florida, Tampa, Florida, by Dr. Anthony Reading, M.D., a psychiatrist, and Dr. Irving B. Weiner, Ph.D. Dr. Reading was the Chairperson of and a professor at the Department of Psychiatry and Behavioral Medicine at the University. Making no specific diagnosis, Dr. Reading opined, among other things, in the evaluation that Respondent does not represent an ongoing danger to female patients through inappropriate sexual behavior and that Respondent has a number of emotionally constricted personality attributes which are under control. Dr. Reading recommended, among other things, that the requirement of having a female professional present during Respondent's examination of female patients be continued and that Respondent receive outpatient psychiatric treatment, conducted by a PRN-approved individual who is trained in the therapy particularly associated with Respondent's problems and who has no prior social or professional relationship with Respondent. A copy of Dr. Reading's evaluation was forwarded to the PRN. A review of the evaluations by Drs. Banard and Reading was conducted by Dr. Raymond Pomm for the PRN. Dr. Pomm was a PRN staff psychiatrist who renders opinions to PRN's director, Dr. Roger Goetz, regarding psychiatric, chemical dependency and boundary violation cases. Based on Dr. Pomm's review, PRN took the position that Dr. Reading's evaluation was based on incomplete information and was, therefore, invalid. Wanting to obtain an independent review, PRN forwarded a copy of the two evaluations performed by Drs. Banard and Reading to Dr. James Edgar, a psychiatrist at the South Tampa Medical Center, Tampa, Florida, for his review. Having reviewed the evaluations, Dr. Edgar reached several conclusions and notified PRN of his conclusions by letter dated May 5, 1993.2 Dr. Edgar concluded that Respondent suffers from "a characterological disorder characterized by narcissistic traits of self-centeredness and relative callousness to the needs of others, denial of personal responsibility for his action and a preference for getting his own needs met without much regard for the needs of others." Dr. Edgar determined that Respondent's prognosis was "extremely guarded if not poor" and that Respondent "shows no evidence of motivation for treatment." Further, Dr. Edgar concluded that Respondent had misrepresented himself to Dr. Reading and that Respondent was a "significant risk" to patients. Moreover, Dr. Edgar concluded that, if Respondent was to be allowed to continue his practice under the auspices of the PRN, Respondent should be participating in a "well structured treatment plan." Dr. Edgar provided specifics regarding the treatment plan, including an autonomous female attendant, inpatient treatment and, after the inpatient treatment, outpatient psychotherapy. Also, Dr. Edgar indicated that he was "pessimistic" that the inpatient treatment would have any significant impact on Respondent's personality structure. Dr. Edgar's report was presented to the PRN. After reviewing the evaluations and Dr. Edgar's report, PRN required Respondent to present himself for admission for inpatient therapy and provided Respondent with a choice of facilities for the therapy. The Menninger Clinic at the C.F. Menninger Memorial Hospital in Topeka, Kansas, was chosen. It was agreed by Respondent and PRN that they would abide by the recommendations made by The Menninger Clinic. On or about May 3, 1993, Respondent presented himself to The Menninger Clinic for evaluation by Dr. Donald E. Rosen, M.D., Director of the Professionals in Crisis Program at The Menninger Clinic, and by Dr. Rosen's staff. However, inpatient admission did not occur. In his report, Dr. Rosen stated, among other things, that Respondent "clearly did not desire inpatient treatment (or treatment in general)"; that Respondent, during the initial interview, "denied the presence of any psychiatric symptoms, psychological conflicts, or presence of any treatment goals that he would hope to accomplish in a treatment process"; and that Respondent was openly cautious and withheld some information, with his withholding being "overt and in other ways, more subtle." Dr. Rosen was, therefore, unable to make any specific recommendation, stating, among other things, that "no specific recommendations for ongoing psychiatric treatment are made at this time." Further, in his report Dr. Rosen addressed the situation of a female attendant being present during Respondent's treatment and examination of female patients. Dr. Rosen was concerned with Respondent's manipulative behavior and stated that, considering Respondent's "long-standing history of sexual relations with his patients, his lack of guilt about these relationships, his inability to see this behavior as a personal ethical issue, and the overt manipulativeness that surrounded this evaluation," he could not "state with confidence that the patient [Respondent] will not attempt to make his employees allow him to see female patients without a female healthcare professional in the room at all times." It is undisputed that Dr. Rosen did not make any recommendations. By letter dated May 6, 1993, to Respondent and written at Respondent's request, Dr. Rosen confirmed that Respondent presented himself for inpatient admission but was not admitted. Furthermore, Dr. Rosen stated the reasons for Respondent not being admitted, which were because Respondent "denied the presence of any psychiatric symptoms, denied any psychological problems you [Respondent] wished to work on, and had no goals for what you [Respondent] hoped treatment would accomplish." These reasons were the same reasons expressed in Dr. Rosen's report. Inpatient treatment could not be accomplished, if Respondent refused to admit that he had psychological problems and that he needed to work on his psychological problems, and to establish goals for what he hoped the treatment would accomplish. By certified letter dated August 3, 1993, to Respondent, PRN confirmed its request made May 26, 1993, that Respondent not practice medicine until he completed inpatient treatment. Furthermore, in the letter PRN notified Respondent that, before he could return to the practice of medicine, his treating psychiatrist must confirm that he is able to return to the practice of medicine with reasonable safety to the public. By letter dated February 10, 1994, to the then Department of Business and Professional Regulation (Department), PRN notified the Department that Respondent was in violation of the Board of Medicine's Final Order filed January 8, 1992. PRN recapped, among other things, the evaluations performed, including the evaluation at The Menninger Clinic, and the results of the evaluations. Furthermore, PRN advised the Department of the request PRN made to Respondent in May 1993 that Respondent refrain from practicing medicine until he had undergone inpatient treatment at The Menninger Clinic and the same request it had made in August 1993. PRN concluded, among other things, that Respondent had violated the Final Order; that it (PRN) was unable to monitor Respondent, as to refraining from practicing medicine; that Respondent continued to need inpatient therapy at The Menninger Clinic; and that Respondent presented a danger to the public health, safety, and welfare. On July 20, 1994, Dr. Burton Cahn, M.D., a psychiatrist, wrote a letter addressed to "To Whom It May Concern," stating that Respondent "does not represent either a danger to himself or to others." Prior to writing the letter, Respondent was Dr. Cahn's patient from November 1989 through 1991. Dr. Cahn never conducted any diagnostic tests, such as the MMPI, on Respondent. Also, Dr. Cahn is a personal friend of Respondent. By letter dated September 6, 1994, the Compliance Officer for the Board of Medicine notified Respondent that he had complied with all of the requirements of the Final Order dated January 8, 1992. The letter further reminded Respondent of the restriction that a licensed female healthcare professional was required to be present when he treated or examined female patients. However, the Compliance Officer issued the letter in error. She had failed to communicate with the PRN, prior to issuing the letter, to determine whether Respondent had completed the requirements as to the PRN, such as being evaluated by a PRN- approved psychiatrist and complying with the recommendations of the psychiatrist. If the Compliance Officer had communicated with the PRN, she would have been informed by PRN that Respondent had not completed its requirements. Further, legal counsel with the Agency for Health Care Administration (AHCA)3 informed PRN that Respondent was under no obligation to comply with PRN's request of May 1993 and August 1993 to refrain from practicing medicine until he undergoes inpatient treatment at The Menninger Clinic. Moreover, the legal counsel further informed PRN that Respondent was only required to comply with the recommendations of the psychiatrist. By letter dated November 1, 1995, to the legal counsel of AHCA, the PRN again expressed, among other things, its concern that Respondent was capable of manipulating his staff when treating or examining a female patient. The PRN advised the legal counsel that it considered Respondent's impairment to affect his ability to practice medicine and that his impairment "constitutes an immediate, serious danger to the public health, safety and welfare." Subsequently, on February 22, 1996, the Administrative Complaint in the present case was filed by the Petitioner. At that time, the prevailing opinion amongst all of the PRN-approved psychiatrists, except for Dr. Rosen, was that Respondent was suffering from a psychological illness. Moreover, the prevailing opinion amongst all of the PRN-approved psychiatrists, except for Dr. Rosen, was that inpatient therapy was required. Dr. Rosen was unable to make any diagnosis or recommendations. Even though Respondent presented himself for inpatient admission, he was not admitted due to his denial that he had a psychological illness that required therapy; without Respondent admitting that he had a psychological problem, no treatment could be effectuated. Without treatment, Respondent remained ill; he suffered from a psychological illness. Without treatment, Respondent was a danger to his female patients and was unable to practice medicine with reasonable skill and safety to his patients by reason of illness.4 After the filing of the Administrative Complaint in the present case, the parties agreed that Respondent would be evaluated by a psychiatrist acceptable to the PRN. After consideration, including the location of Respondent's practice, which was on the East Coast, and Respondent's wish for a psychiatrist on the East Coast to conduct the evaluation, Dr. Ronald Shellow, a psychiatrist in Miami, was recommended by PRN, but PRN also indicated that Dr. Shellow was not an expert in the behavioral disorder with which Respondent had been diagnosed by other PRN approved psychiatrists. On August 7, 14, and 23, 1996, Dr. Shellow conducted an evaluation of Respondent, with each session lasting one hour. Dr. Shellow administered the Bender-Gestalt and the House-Tree- Person psychological tests. In his report dated September 2, 1996, Dr. Shellow states, among other things, that Respondent related to him the incident involving the female patient, on which the Administrative Complaint in the present case was filed, but that Respondent "would not say whether this had happened with other patients." Clearly, Respondent was not being forthright with Dr. Shellow because, prior to this incident, other incidents involving female patients had occurred. This additional information was not available to Dr. Shellow for his consideration in his evaluation. Again, Respondent was withholding information. In his evaluation, Dr. Shellow opined, among other things, that Respondent was not suffering from a psychiatric disturbance and that Respondent had no psychiatric disorder; however, based on Respondent's history, Dr. Shellow Respondent did have a dependent personality disorder. Dr. Shellow concluded, among other things, that the reoccurrence of the incident with another female patient was "unlikely" as long as Respondent's marriage remained "satisfying" and he continued to "see his psychiatrist on a quarterly basis." Dr. Shellow indicated that Respondent's present psychiatrist, Dr. Cahn, concurred with him. Subsequently, Dr. Shellow received a copy of the evaluation conducted by The Menninger Clinic from Dr. Cahn. Having reviewed The Menninger Clinic's evaluation, which revealed past encounters by Respondent with his female patients, by letter dated November 14, 1996, to Dr. Pomm of the PRN, Dr. Shellow notified PRN that his opinion had not changed. Dr. Cahn had begun treating Respondent again in 1995. His opinion remained, and remains, unchanged. Dr. Cahn is of the opinion that, even though Respondent was suffering from a personality disorder when he first began treating Respondent in 1989, Respondent no longer suffers from a psychological illness and, therefore, requires no psychiatric treatment.5 Dr. Cahn agrees that a personality disorder is a psychological illness. Considering the proof, the opinions of Dr. Cahn are less than persuasive, and it is concluded that Respondent continues to suffer from a psychological illness.6 Furthermore, Dr. Shellow expressed in his letter dated November 14, 1996, that he was of the opinion that Respondent could practice medicine with skill and safety under certain conditions. Dr. Shellow stated that if Respondent "is to continue practicing medicine with skill and safety, he should be in psychotherapy on some sort of sontinuing [sic] basis, and he should be supervised to prevent these actions from occurring again." Regarding the monitoring of Respondent's practice, Dr. Shellow was of the opinion that any monitoring should be devised and decided upon by the PRN and that, with Respondent being in his 60's, Respondent should enter into a contract with the PRN for as long as he practices medicine. Also, Dr. Shellow opined that some way should be developed to use Respondent's skills, but that, if Respondent prevented anyone in his office from reporting to the PRN, Respondent was not practicing medicine with skill and safety. At no time did Dr. Shellow receive or review the evaluations of Drs. Banard, Reading or Edgar. On December 2, 1996, AHCA filed an Order of Emergency Restriction of License against Respondent. His medical practice was restricted as to his treating or examining female patients, monitoring by PRN, and entering into a contract with PRN. On December 30, 1996, Respondent executed an advocacy contract with PRN. In the contract, Respondent designated, among other things, Dr. Cahn as his treating psychiatrist, with whom he would have quarterly psychiatric treatment meetings; Dr. Michael Langone, M.D., as his supervising practitioner; and Gretchen Nelson, a registered nurse, as the female chaperon during his treatment or examination of female patients. Dr. Cahn is known to the PRN. He has been a referral psychiatrist for PRN for several years. Nowhere on the advocacy contract was there a provision to identify the relationship of the supervising practitioner and the chaperon to the physician who is being monitored. Dr. Langone was an associate and employee of Respondent. Nurse Nelson was an employee of Respondent. On January 16, 1997, PRN executed the advocacy contract. By letter dated February 4, 1997, PRN notified the legal counsel for AHCA that an advocacy contract had been entered into between it and Respondent. In March 1997, PRN experienced a problem as to the female chaperon, Nurse Nelson. The PRN telephoned Respondent's office to confer with Nurse Nelson. Upon speaking with Nurse Nelson, among other things, PRN learned that she was not aware of her responsibility as the female chaperon to the advocacy contract and that she was employed by Respondent. By letter dated March 24, 1997, PRN notified Respondent that it had contacted his office several times and had problems contacting the individuals indicated in the advocacy contract; that the contract needed to be reviewed with the individuals; and that the individuals would be receiving random monitoring telephone calls from PRN to access compliance with the contract. Further, PRN notified Respondent that copies of the contract mailed to the female chaperon and the office staff person designated to handout and collect the Patient Survey Form were returned, and PRN requested that Respondent make sure that the individuals receive copies of the contract. After discovering that Respondent had designated an associate and employee as the supervising practitioner, PRN was concerned that Dr. Langone may have a conflict of interest. Also, PRN discovered that Dr. Langone was leaving Respondent's practice. PRN decided to no longer approve Dr. Langone as the supervising practitioner. By letter dated June 2, 1997, PRN notified the legal counsel for AHCA that PRN had attempted to monitor Respondent's practice without success and that Respondent was currently not being monitored by PRN. Furthermore, PRN stated that Respondent, in its opinion, continued to require monitoring by it. Respondent has not been charged with a violation of the advocacy contract. PRN has not notified the Petitioner that Respondent was not in compliance with the contract. Neither Dr. Cahn nor any individual designated in the contract has notified the PRN that Respondent was not in compliance with the contract. Dr. Cahn, Respondent's approved treating psychiatrist, is of the opinion that by having a licensed female professional present when Respondent examines or treats a female patient, Respondent can practice medicine with reasonable skill and safety. Dr. Pomm of PRN is of the opinion that, with a monitoring contract in place and compliance with the contract, Respondent can practice medicine with reasonable skill and safety. However, Dr. Pomm is also guarded as to the success of any future contract due to Respondent's history of manipulation and personality disorder.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a final order: Finding that Respondent violated Subsection 458.331(1)(s), Florida Statutes, in Count II of the Administrative Complaint. Dismissing Count I of the Administrative Complaint. Suspending Respondent's license until he is able to demonstrate that he is able to practice medicine with reasonable skill and safety. Placing Respondent on probation, under terms and conditions deemed appropriate by the Board of Medicine, for five years following the removal of the suspension. Imposing an administrative fine of $2,500. DONE AND ENTERED this 6th day of March, 1998, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 6th day of March, 1998.
The Issue Whether Petitioner's application for licensure by examination as a mental health counselor was wrongfully denied.
Findings Of Fact Petitioner attended the University of Tampa and graduated with a degree in social work and psychology in 1978. He subsequently attended Heed University in Fort Lauderdale from 1979 through 1981, graduating in 1981 with a master's degree in counseling psychology. Heed University is not accredited by an accrediting agency approved by the United States Department of Education and was not so accredited while Petitioner was there enrolled. Respondent has worked as a mental health counselor at Tampa Heights Hospital (Exhibit 3), at the Hillsborough Regional Juvenile Detention Center, Charter Hospital, as well as at other facilities, and has served on panels and given lectures at mental health related programs not only in Florida but throughout the United States. Suffice it to say, he has considerable experience as a mental health counselor (Exhibits 4 and 6). At the hearing, Petitioner submitted an original of his transcript at Heed University with impressed seal of the University. This satisfies the objection that Petitioner had not presented an original transcript of his grades at Heed University.
Recommendation It is recommended that Alan Leonard Getreu's application to sit for the mental health counselor licensing examination be denied and this appeal dismissed. ENTERED this 27th day of August, 1990, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 1990. COPIES FURNISHED: Charles Tunnicliff, Esquire Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 Salvatore A. Carpino, Esquire One Urban Center Suite 750 4830 West Kennedy Boulevard Tampa, FL 33609 Linda Biedermann Executive Director Clinical Social Work, Marriage & Family Therapy and Mental Health Counseling Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 Kenneth D. Easley General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792
The Issue The issue for determination is whether Petitioner's Medicaid provider number should be cancelled.
Findings Of Fact I.M.P.A.C.T. Institute, Inc. (Petitioner) provides primarily counseling services to residents of Broward County and the surrounding areas. The majority of the residents who receive Petitioner's services are low income, have language barriers and have little education. Petitioner provides a valuable and important service to the community that it serves. At all times material hereto, Petitioner was licensed by the Department of Health and Rehabilitative Services in accordance with Chapter 397, Florida Statutes. Petitioner was issued its regular license on December 29, 1994. At all times material hereto, Petitioner was enrolled as a community mental health provider in the Florida Medicaid program pursuant to Subsection 409.906(8), Florida Statutes. Petitioner has been enrolled in the Medicaid program for approximately three years. At all times material hereto, Petitioner has been issued a Medicaid provider number which has been continuously renewed. Petitioner is currently receiving Medicaid reimbursement for community mental health services pursuant to Subsection 409.906(8), Florida Statutes. On June 10, 1994, Petitioner executed a Medicaid Provider Agreement (Agreement). The Agreement provides in pertinent part: The provider and the Department [Depart- ment of Health and Rehabilitative Services] agree to abide by the Florida Administrative Code, Florida Statutes, policies, procedures, manuals of the Florida Medicaid Program and Federal laws and regulations. The agreement may be terminated upon thirty days written notice by either party. The Department may terminate this agreement in accordance with Chapter 120, F.S. Respondent has a handbook which describes, among other things, the community mental health services program and provider participation requirements. Effective December 1995, the handbook provides in pertinent part: Community mental health services are governed . . . through the authority of Chapter 409.906(8), Florida Statutes. * * * To be eligible to be enrolled in Medicaid, a provider must have a current contract pursuant to the provisions of Chapter 394, Florida Statutes, for the provision of community mental health services; and, if applicable, a regular (i.e., not provisional or interim) license as an alcohol prevention and treatment or drug abuse treatment and prevention program from the district Depart- ment of Health and Rehabilitative Services (HRS), Alcohol, Drug Abuse and Mental Health (ADM) program office. Petitioner does not have a contract with the Department of Health and Rehabilitative Services, Alcohol, Drug Abuse and Mental Health (ADM) program office. Petitioner has been attempting to obtain a contract with the Health and Rehabilitative Services ADM program office but has been unable to do so because the Health and Rehabilitative Services ADM office has had no money to fund such a contract. Respondent is cancelling Petitioner's Medicaid provider number because Petitioner does not have a contract with the Health and Rehabilitative Services ADM program office.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order terminating I.M.P.A.C.T. Institute, Inc.'s Medicaid provider contract and cancelling its Medicaid provider number. DONE AND ENTERED on this 8th day of October, 1996, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 8th day of October, 1996. APPENDIX The following rulings are made on the parties' proposed findings of fact: Petitioner Partially accepted in finding of fact 1. Partially accepted in finding of fact 1. Partially accepted in finding of fact 4. Rejected as being argument, or a conclusion of law. Rejected as being argument, or a conclusion of law. Rejected as being argument, or a conclusion of law. Partially accepted in findings of fact 5, 8, and 9. Rejected as being subordinate, irrelevant, or unnecessary. Respondent Partially accepted in finding of fact 2. Partially accepted in finding of fact 3. Partially accepted in finding of fact 6. Partially accepted in finding of fact 5. Partially accepted in finding of fact 7. Partially accepted in finding of fact 8. NOTE: Where a proposed finding has been partially accepted, the remainder has been rejected as being subordinate, irrelevant, unnecessary, cumulative, not supported by the evidence, argument, or a conclusion of law. COPIES FURNISHED: Jason H. Clark, Esquire Post Office Box 17486 West Palm Beach, Florida 33416 Roger R. Maas, Esquire Agency for Health Care Administration 2727 Mahan Drive, Ft. Knox No. 3 Tallahassee, Florida 32308-5403 Sam Power, Agency Clerk Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308-5403 Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308-5403
Findings Of Fact UniPsych is a Florida corporation that provides managed mental health and substance abuse services to Florida residents. The company was founded by Dr. Leo Bradman, a recognized authority in managed mental health care. UniPsych currently provides mental health and substance abuse services and has been providing mental health services, on a managed care basis to the Lake County School District and its employees for the last five (5) years. In July 1995, the Board issued Request For Proposals No. 883 (RFP). The RFP sought proposals for a managed behavioral health program that includes an employee assistance program and a mental health/substance abuse program for the School District employees, their spouses, and their children. The RFP at a minimum requires that each member would be entitled to three visits a year with a counselor. The first visit would be at no charge to the member and a $10.00 charge to the member for visits two and three. The RFP also states in pertinent part: Rights are reserved by the School Board of Lake County to reject any and all proposals and to waive all technicalities. * * * THE SCHOOL BOARD RESERVES THE RIGHT TO ACCEPT OR REJECT PROPOSALS IN WHOLE OR IN PART; AND TO AWARD A CONTRACT IN THE MANNER IN WHICH THE BOARD DETERMINES TO ITS BEST INTEREST. Award of this proposal is intended to be made by the School Board at its regular meeting on August 8, 1995. Conformity to specifications, price, quality of network, quality of program, response to worksheet and financial stability will be determining factors in the awarding of the proposal. All proposals must include the following: Completed Managed Behavioral Health Program Worksheet signed by an authorized representative. Completed Statement on Public Entity Crimes. A copy of your company's Florida Private Review Act Certification. Sample EAP and Managed MH/SA communi- cations to employees. A sample contract stating the provisions that would apply if your company is selected. Any additional information which your company deems pertinent to the proposal. The RFP does not define the term financial stability. The RFP does state a preferred method of calculating price. The preferred method of calculating price is the per employee contracts per month model. Total employee contracts is 2855 employees. Six (6) vendors submitted proposals prior to the submission deadline for RFP 883, including the prior contract holder UniPsych. The Board's plan for evaluating the six proposals was to submit them to the Board's insurance committee and the Board's expert consultant, John D. Robinson. The Board elected to have Mr. Robinson screen the submitted proposals for responsiveness to the RFP. Of the six (6) proposals submitted to the School Board, only the proposals of UniPsych, FPM, and Mathar Behavioral Health Systems, Inc. were deemed to satisfy the criteria of the RFP. These three proposals were sent to the Board's insurance committee so that the committee members could review and interview the three remaining proposers. The committee members as well as the Board had each proposers' proposal as well as a spreadsheet prepared by Mr. Robinson during his screening process. However, the evidence was clear that the committee relied on the price representations and guarantees contained in the spreadsheet. The Committee voted 9-0-1 to recommend the award to FPM. The Petitioner received no votes. The third finalist received one vote. Around August 10, 1995, UniPsych received written notice that the School District's ten-member district-wide health insurance committee decided to recommend that the School Board award its contract to FPM. As indicated earlier in screening the proposals, Mr. Robinson prepared a spreadsheet containing comparative data. The spreadsheet was not meant to be a complete listing of all the items in a company's proposal. He obtained the information contained in the spreadsheet mostly from the proposers' proposals. However, in at least two instances relevant to this case. Mr. Robinson contacted certain proposers over its proposal. Mr. Robinson felt he could seek corrections or clarifications from FPM, and other proposers because "[t]his is a proposal, not a bid. Proposals have the ability to be questioned and clarified " One such call was made to FPM. The call to FPM was made regarding at least two portions of FPM's proposal. FPM stated in Part 3 of its proposal that 14 average employee assistance program (EAP) visits per 1000 members were handled by FPM; and stated in Part 7 of its proposal that it would offer the benefit design outlined in the Board's specifications at $5.00 per employee contract per month. The $5.00 rate would be guaranteed for "two years without significant Consumer Price Index (CPI) increases." FPM was permitted to change the information contained in Part 3 of its proposal to 80-85 average employee assistance program visits per 1000 members because the original number was an error. The evidence did not demonstrate that this change was significant or material. More importantly however, FPM was allowed to change it price guarantee to three years without the CPI provision. These changes contradicted the plain language of FPM's proposal. Mr. Robinson inserted the newly-provided information in his spreadsheet and reported these changes to FPM's proposal to the committee. The change made to FPM's price guarantee was not a mere clarification but a significant change in a material bid term. The evidence was clear that the information in the spreadsheet was utilized and relied on by the Board and its insurance committee. The spreadsheet also contained information on each proposer's price. However, the spreadsheet was unduly detrimental to UniPsych because it overstated UniPsych's price. Health benefit contracts are typically priced under one of two methods: per employee per month (PEPM) or per member per month (PMPM or additive method). Members include the employee as well as any non-employee persons such as children of the employee covered under a health plan. The RFP stated a preference for pricing on a PEPM basis. UniPsych proposed to charge $4.01 on a PEPM basis. In determining UniPsych's PEPM average, the individual employee price was not added onto the price charged per employee and child(ren), per employee and spouse, or per employee and family. However, the spreadsheet erroneously stated all prices in the spreadsheet on a PMPM basis and reflected that UniPsych proposed to charge $4.80 PMPM instead of $4.01 PEPM. Moreover, the price was incorrectly based on an interpretation of documents relating to UniPsych's pricing scheme under its prior contract with the School Board. The erroneous interpretation served to inflate the spreadsheets price calculation for UniPsych. FPM proposed to charge $5.00 PEPM. Mr. Robinson recognized that if UniPsych's price was $4.01 PEPM, it would be substantially different from FPM's price, and could be sufficient to justify an award of the contract to UniPsych over FPM. Given the price guarantee change to FPM's proposal and this error in calculating UniPsych's price, these two factors warrant the rejection of all the bids in this case. As indicated earlier, the financial stability of a proposer was one of the criteria for review of this RFP. Neither the committee nor the RFP members required that any proposer submit financial information with its proposal or in its presentation to the committee. The only information supplied was general company information showing business activity, clients served and providers under contract. The committee members generally only asked the proposers if such information was available and if the proposer was financially stable. At the hearing, the evidence showed that FPM is the wholly-owned subsidiary of Ramsay Managed Care, Inc. (Ramsay). Ramsay essentially has two operating divisions: a health maintenance organization (HMO) division and a mental health and substance abuse division. FPM is Ramsay's mental health and substance abuse operating division. Ramsay's 10Q filing for the quarter ending March 31, 1995, reported that Ramsay had $17,508,893 in assets, $13,236,246 in liabilities, shareholder's net worth of $4,272,647, and $87,802 in losses that quarter. Ramsay has current assets of $2,957,912 and current liabilities of $4,362,714. These two figures give Ramsay a current ratio of 1:1.47. Generally a 1:1 or better ratio is deserved for financially stable companies. However, the ratio by itself does not show financial instability. It is simply a red flag worthy of more scrutiny. Ramsay's largest asset is "goodwill" totaling $9,959,745. Ramsay's 10Q explains that it booked most of this goodwill to account for its acquisition of FPM and two other mental health companies at prices exceeding the book values of those companies. Again the amount of goodwill does not demonstrate financial instability of a company. The 10Q also reflects that FPM proposes to obtain working capital via a line of credit that is collateralized by security interests in FPM's accounts receivable and its stock. The significance of these security interests is magnified by Ramsay's debt service obligations, which (as of March 31, 1995) would require it to pay out $2,211,100 by June 30, 1997, and $2,407,600 by June 30, 1998. Again these figures do not demonstrate financial instability of a company. To confirm its financial stability, UniPsych offered the Committee audited financial statements that were being prepared on a statutory accounting basis. The statements were never requested by the Committee and the Committee never considered financial statements for any of the proposals. However in this instance, the committee did consider the financial stability of all the proposers to its satisfaction. The evidence did not show that the committee's consideration was unreasonable or unfair to any proposer. In fact, the proposers were treated equally in the quality and quantity of financial information sought by the committee. The fact that more information or better information could have been sought is irrelevant since the committee and Board under the RFP specifications were free to determine the level of inquiry they deemed appropriate. If the specification as used by the Board was unclear or undefined to UniPsych, it should have challenged the specifications within the 72 hour period for such challenges under 120.53, Florida Statutes. Finally, the evidence was clear that UniPsych's proposal was a superior program to FPM's. In short UniPsych offered more benefits for less money. Indeed UniPsych's experiences during those five (5) years gave it first-hand knowledge of several ways it could improve and enhance the managed care program specified by the Board's RFP. FPM's proposal fails to offer any enhanced benefits. To enhance and improve the RFP's managed care program, UniPsych offered to provide two (2) additional benefits to the Board: (a) an out-of-network benefit; and (b) a chronic condition benefit. The out-of-network benefit gives potential patients complete choice of out-patient providers and increased choice of in-patient (hospital) providers, by allowing those potential patients to select a provider who is outside a designated network of providers. The chronic condition benefit addresses another restriction that is prevalent in most managed mental health care programs. As is the case with the RFP in issue, most managed mental health care programs routinely fail to require the plan provider to contract for coverage of chronic, recurrent or long-term mental health conditions (chronic conditions). This omission forces chronic condition patients to look to publicly funded community agencies for mental health care. Publicly funded facilities in Lake County have not produced patient satisfaction, partly because they are too few in number or they offer too few services. In addition to these two (2) major benefits, UniPsych's proposal also offered several other valuable benefit enhancements that improved upon the RFP's minimum requirements: 10 additional out-patient visits (above the 20 required by the RFP); and 5 free visits (i.e., no co-payment for members) under UniPsych's Employee Assistance Program, instead of the RFP's requirement of three visits, only the first of which is not subject to co-payment. The evidence did not demonstrate any reason with a basis in fact which would have caused the School Board to reject UniPsych's proposal in favor of FPM. The evidence only hinted at a general dissatisfaction with UniPsych. No basis for this dissatisfaction was shown. Since no basis was given for the Board's decision to reject a proposal which offers more benefits for less money the only conclusion is that the Board acted arbitrarily in awarding the contract to FPM. Therefore, all the proposals should be rejected and the process begun anew.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board enter a Final Order rejecting all proposals. DONE and ENTERED this 29th day of January, 1996, at Tallahassee, Leon County, Florida. Officer Hearings 1550 Hearings DIANNE CLEAVINGER, Hearing Division of Administrative The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399- (904) 488-9675 Filed with the Clerk of the Division of Administrative this 29th day of January, 1996. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 95-4827BID The facts contained in paragraphs 2, 3, 4, 5, 7, 8, 13, 14, 15, 17, 19, 20, 21 and 22, of Petitioner's Proposed Findings of Fact are adopted in substance, in so far as material. The facts contained in paragraphs 1, 6, 10, 11, 16, 18, 24, 25 and 26 of the Petitioner's Proposed Findings of Fact are subordinate. The facts contained in paragraphs 12 and 23 of Petitioner's Proposed Findings of Fact were not shown by the evidence. The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8(a) and (b) and 15 of Respondent's Proposed Findings of Fact* are adopted in substance is so far as material. The facts contained in paragraphs 11, 12, 13 and 14 of Respondent's Proposed Findings of Fact are subordinate. The facts contained in paragraphs 9 and 10 of Respondent's Proposed Findings of Fact were not shown by the evidence. Paragraph 8(c) of Respondent's Proposed Findings of Fact contained only legal argument. *Paragraphs 7 through 15 of Respondent's Proposed Findings of Fact were unnumbered. Therefore, the Hearing Officer supplied sequential numbers for these paragraphs for reference purposes. COPIES FURNISHED: Timothy G. Schoenwalder, Esquire Blank, Rigsby and Meenan, P.A. 204 South Monroe Street Tallahassee, Florida 32301 Richard Langley, Esquire Post Office Box 120188 Clermont, Florida 34712-0188 Dr. Thomas E. Sanders, Superintendent Lake County School Board 201 West Burleigh Boulevard Tavares, Florida 32778-2496 Frank T. Brogan, Commissioner of Education Department of Education The Capitol Tallahassee, Florida 32399-0400
