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 central issue in this case is whether the Respondent is guilty of the violations alleged in the administrative complaint dated April 17, 1990, and, if so, what penalty should be imposed.
Findings Of Fact Based upon the stipulation of the parties and the documentary evidence received at the hearing, the following findings of fact are made: The Department is the state agency charged with the responsibility of regulating the practice of nursing in the State of Florida. At all times material to this case, the Respondent has been a licensed practical nurse, having been issued license number PN 0914071. On October 27, 1988, the Board of Nursing (Board) issued a license to practice to Respondent and placed him on probation subject to specific terms and conditions for a period of two years. One of the conditions of Respondent's first year of probation required that he be directly supervised by a registered nurse when administering a narcotic. During the period July 15-16, 1989, Respondent worked two shifts in the oncology ward at Orlando Regional Medical Center (ORMC) in Orlando, Florida. During these shifts, Respondent administered approximately seventeen narcotic doses without being directly supervised by a registered nurse. The administration of narcotics described above were performed during Respondent's first year of probation. Policies in effect at ORMC during the period July 15-16, 1989, did not require that a licensed practical nurse be directly supervised when administering narcotics. Respondent's supervising head nurse at ORMC was unaware of the probationary condition requiring that Respondent be directly supervised during the administration of narcotics. A further condition of Respondent's probation required that he notify the Board's probation supervisor of any changes in his telephone number and/or employment within ten days of such change. On or about April 26, 1989, the Respondent notified the Board that he had been employed for Health Care of Orlando since approximately January, 1989, and for St. Cloud Hospital since approximately January 9, 1989. Such notification was not made within ten days of the change in employment. In July, 1989, the Respondent notified the Board of additional changes in employment and with his telephone number. This notification also was not made within ten days of the change. On or about May 11, 1989, the Respondent filled out an employment application with Allied Health Card Consultants, Inc. One of the questions posed on that application asked: "Have any of your professional licenses ever been under investigation?" Respondent answered the foregoing question: "no". Another question posed on the application asked: "Is there any reason you would be unable to perform the duties of your position?" In response, Respondent again answered: "no". On or about August 11, 1989, Respondent gave a copy of the final order setting forth his conditions of probation to Allied Health Care. At all times material to the allegations of this case it was the policy of ORMC not to hire any agency staffed nurse who was on probation status with the Board since all such staff are required to perform all duties without restrictions.
Recommendation Based upon the foregoing, it is RECOMMENDED: That the Department of Professional Regulation, Board of Nursing enter a final order finding the Respondent guilty of having violated a term of his probation set forth in the prior final order enter by the Board, contrary to Section 464.018(1)(1), Florida Statutes, imposing an administrative fine in the amount of $500.00, and suspending the Respondent's license for a period of two years. DONE and ENTERED this 24th day of June, 1991, in Tallahassee, Leon County, Florida. Joyous D. Parrish Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of June, 1991. APPENDIX CASE NO. 90-8047 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: 1. Paragraphs 1 and 2 are accepted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: Respondent's findings of fact begin with the paragraph numbered 9 Paragraph 9 is accepted. Paragraph 10 is accepted. The first sentence of paragraph 11 is accepted. The remainder of the paragraph is rejected as contrary to the height of the evidence. Paragraph 12 is accepted. Paragraph 13 is rejected as comment, argument, or irrelevant. COPIES FURNISHED: Tracey S. Hartman Senior Attorney Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 C. Michael Magruder The Monument Building 22 W. Monument Avenue Kissimmee, Florida 34741 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Judie Ritter Executive Director 504 Daniel Building 111 East Coastline Drive Jacksonville, Florida 32202
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 primary issue is whether, under section 409.913(16)(j), Florida Statutes, Petitioner can establish and recover from Respondent overpayments for Medicaid claims for community mental health services that Respondent provided to recipients who were enrollees in plans of various managed care organizations (MCOs) that, pursuant to the standard contract between these MCOs and the Department of Elder Affairs (DOEA), provided services under the Nursing Home Diversion Waiver (NHDW) program.1/ A secondary issue is whether Petitioner is liable to Respondent, under sections 57.105(1)(a) and (5), Florida Statutes, for attorneys' fees for presenting a claim for overpayment that Petitioner knew or should have known was not supported by the necessary material facts.
Findings Of Fact Audit, PAR, and FAR At all material times, Respondent, as an enrolled Medicaid provider, has operated as a community behavioral health provider of community behavioral health services to Medicaid recipients. Petitioner conducted an audit of Respondent's fee- for-service reimbursement claims from January 1, 2008, through December 31, 2011. As a result of this audit, Petitioner determined that Respondent's services duplicated services that MCOs were already required, and paid capitated rates, to provide, pursuant to the NHDW standard contract, so that the reimbursements that Respondent received constituted overpayments. This case reveals a division of responsibility within Petitioner. The audit was conducted by employees of Petitioner's Office of Medicaid Program Integrity, which is within Petitioner's Office of the Inspector General. Program-specific expertise resided with a program analyst in another part of Petitioner. In fact, because operational authority for the NHDW program was divided between Petitioner and DOEA, program-specific expertise resided in one program analyst in each agency: Mr. Young with Petitioner and Megan O'Malley with DOEA. By letter dated March 25, 2013, Petitioner provided Respondent with a Preliminary Audit Report (PAR) advising that Petitioner had completed an audit, determining that Petitioner had overpaid Respondent a total of $284,535.83 in Medicaid reimbursements, and seeking repayment of these alleged overpayments. The PAR explains: Medicaid fee-for-service payments have been identified for recipients while they were enrolled in the Medicaid [NHDW] Program. The fee-for-service payments, shown on the attached work papers, were for services that were to be covered by the recipient's [NHDW] provider. The total amount reimbursed to you for these fee-for-service payments has been identified as an overpayment. After receiving the PAR, Respondent's representatives contacted Petitioner's representatives to discuss the proposed overpayment determination. In an email dated April 29, 2013, Carol Platt, an employee in Petitioner's Bureau of Managed Care, advised Vivian Demille, a representative of Respondent, that Ms. Platt had spoken with Mr. Young and learned from him that the capitated rates paid to NHDW plans for specific community based mental health services would not preclude fee-for-service billing of community based mental health services to NHDW plan enrollees, if the services were not included in the NHDW plan. According to Mr. Young, mental health services covered by NHDW plans fell under Healthcare Common Procedure Coding System procedure codes (Codes) H2000HP, H2010HO, H2000, H0031HO, H0031HN, H2019, and H0031.2/ But Mr. Young determined that Codes H2017, H2019HR, and H0032TS were not covered by NHDW plans and would properly be billed on a fee-for-service basis to Petitioner. About one week later, by email dated May 7, 2013, Ms. Platt advised Ms. Demille that Ms. Platt had been provided with incorrect information. The meaning of the May 7 email is unclear, but, as noted below, Mr. Young never changed his opinion that Codes H2017, H2019HR, and H0032TS were not covered by NHDW plans and could be billed on a fee-for-service basis when these services were provided to enrollees of NHDW plans. By letter dated July 10, 2013, Petitioner issued the FAR. The FAR restates the overpayment amount of $284,353.83, adds the fines and costs identified in the Preliminary Statement, and contains the same explanation that was included in the PAR. The work papers comprise 78 pages of "[NHDW] Fee for Service Match."3/ As the title of the work papers suggests, the work papers document the results of a database search that matched recipients serviced by Respondent with recipients enrolled in a NHDW plan. The work papers also identify by Codes the services that Respondent billed on a fee-for-service basis. Among the Codes appearing in the work papers, Code H2017 accounts for nearly all of the reimbursement claims. The next most common Code billed was H2019HR, which appears at a frequency of about one-seventh of the rate of H2017 claims. On a dollar basis, the three Codes that Mr. Young determined should be reimbursed to Respondent account for over 99% of the total amount claimed by and reimbursed to Respondent during the audit period for all ten Codes identified by Mr. Young. By email dated August 15, 2013, Eduardo R. Lacasa, general counsel of Respondent, asked Ms. O'Malley whether services billed under Codes H2017, "H2019," and H0032TS were reimbursable on a fee-for-service basis when provided to enrollees of NHDW plans. Mr. Lacasa disclosed to Ms. O'Malley the status of the matter between Petitioner and Respondent because, attached to the email, were the PAR and FAR, as well as a recent email from Mr. Young confirming the accuracy of Ms. Platt's email describing his earlier advice. Less than 30 minutes after receiving Mr. Lacasa's email, Ms. O'Malley responded that she too understood that these three Codes described services that were not covered by the NHDW plan, and she was forwarding this email to her "upper management" to discuss with their counterparts at Petitioner. Services Provided by Respondent and Services Covered by NHDW Standard Contract Identifying the Codes at Issue An oddity of this case is the absence from the record of even a single recipient record of the service provided by Respondent. Petitioner has not disputed that the billed Codes aptly describe the services rendered, so the Codes provide the information necessary to describe the services provided by Respondent. The reimbursement claims cover a total of 11 Codes, not ten, as indicated by Mr. Young, according to Ms. Platt's email of April 29, 2013. By email to a program administrator dated July 10, 2013, Sheri Creel, a program analyst in the Office of Medicaid Program Integrity, listed the 11 Codes that Respondent billed. But Mr. Young's list is important because: 1) as noted above, by dollar amount, over 99% of the reimbursement claims involve the three Codes that he advised could be billed on a fee- for-service basis, and 2) possibly reflecting this fact, Respondent's August 2013 letter requesting a hearing asked only that Petitioner implement Mr. Young's determinations, including those adverse to Respondent. This means: 1) Respondent has not challenged overpayment claims based on Codes that Mr. Young determined were covered by the NHDW standard contract, and 2) Petitioner's claim for overpayment in this case is the total overpayment in excess of the $2587.38 that Respondent has conceded is due. Fortunately, Mr. Young's list was accurate as to the three Codes that he determined were not covered by the NHDW standard contract: H2017, H2019HR, and H0032TS. Because Petitioner has declined to implement Mr. Young's determination as to these three Codes, it is necessary to consider them in detail below. Mr. Young's list was also accurate as to three of the remaining seven Codes on his list: H2010HO, H0031HN, and H0031. A fourth Code on Mr. Young's list, H2000HP, probably contains a typographical error and should have been Code H2000HO. It is unnecessary to consider these four Codes because, as noted above, Respondent's request for hearing does not contest Mr. Young's determination that these Codes were covered by the NHDW standard contract. This leaves three Codes that Mr. Young incorrectly listed and one that he missed entirely. The three Codes that Mr. Young listed that were not billed by Respondent are H2000, H0031HO, and H2019; the Codes that Respondent billed were H0001, H0032, and H2019HQ. Mr. Young would have determined that Code H0001 was covered under the NHDW program and thus not reimbursable on a fee-for-service basis. He made this determination as to Codes H2000, H0031HO, and H2019, which are under Assessment Services in Appendix P of the Community Behavioral Health Coverage and Limitations Handbook, October 2004 (Coverage Handbook). Code H0001 is also under Assessment Services and is not materially different from the three Codes in Assessment Services that Mr. Young determined were covered by the NHDW standard contract. None of the three Codes that Mr. Young determined were reimbursable were under Assessment Services. It is therefore unnecessary to consider Code H0001 in detail below. Mr. Young would have determined that Codes H0032 and H2019HQ were not covered by the NHDW standard contract. Code H0032 is not materially different from Code H0032TS, which Mr. Young determined was not covered by the NHDW standard contract; both Codes are under Treatment Plan Development and Modification in Appendix P of Coverage Handbook. Code H0032TS is for mental health service plan followup or mental health treatment plan review, and Code H0032 is for mental health service plan development or mental health treatment plan development. Likewise Code H2019HQ is not materially different from Code H2019HR, which Mr. Young determined was not covered by the NHDW standard contract; both Codes are under Behavior Health Therapy Services in Appendix P of Coverage Handbook. Code H2019HR is for individual or family counseling and Code H2019HQ is for group counseling. The eleventh Code, which Mr. Young missed altogether, is Code T1015. It bears no resemblance to any of the Codes that Mr. Young considered because it is the sole Code in this case that is under Medical and Psychiatric Services in Appendix P of Coverage Handbook. It is thus necessary to consider Code T1015 in detail below.4/ Respondent's Services Billed Under Codes H2017, H2019HR, H2019HQ, H0032TS, H0032, and T1015 Of the six Codes in dispute in this case, Code H2017 is the most important because it accounts for the overwhelming majority of the 2,658 reimbursement claims and an even greater share of the total reimbursements paid to Respondent. The sole Code among the 11 to be under Community Support and Rehabilitative Services in Appendix P of Coverage Handbook, Code H2017 is "[p]sychosocial rehabilitation services, per 15 minutes" under the HIPAA description or "[p]sychosocial rehabilitation services" under the Medicaid description. Coverage Handbook explains that psychosocial rehabilitation services: are designed to assist the recipient to compensate for or eliminate functional deficits and interpersonal and environmental barriers created by their disabilities, and to restore social skills for independent living and effective life management. This activity differs from counseling and therapy in that it concentrates less upon the amelioration of symptoms and more upon restoring functional capabilities. It includes work readiness assessment, job development on behalf of the recipient, job matching, on the job training, and job support. Coverage Handbook 2-1-30. Psychosocial rehabilitation services must be provided by a person with no less a credential than a behavioral health technician under the supervision of a bachelor's level practitioner, substance abuse technician, or certified addictions professional. Id. These services must be documented with a daily service note and a monthly progress note. Id. at 2-1-31. As noted above, Codes H2019HR and H2019HQ are for "[t]herapeutic behavioral services" involving an individual, family, and group. Coverage Handbook explains that the purpose of individual and family therapy is to provide "insight oriented, cognitive behavioral, or supportive therapy." Id. at 2-1-25. This therapy must be provided by at least a master's level practitioner. Documentation must include the "topic, assessment . . ., level of participation, findings, and plan." Id. Group therapy is similar, but may be provided by a bachelor's level practitioner or certified addictions professional. As noted above, Codes H0032 and H0032TS, respectively, are for the development and review of a mental health service plan or mental health treatment plan. For the development of the plan, which would be Code H0032, Coverage Handbook explains that the "treatment plan is a structured, goal-oriented schedule of services developed jointly by the recipient and the treatment team." The treatment plan must be preceded by a "Brief Behavioral Health Status Examination" or "Psychiatric Evaluation" conducted by a physician. Coverage Handbook 2-1-15. For the review of the plan, which would be Code H0032TS, Coverage Handbook requires that the plan be reexamined no less often than six months and does not require an updated Brief Behavioral Health Status Examination or Psychiatric Evaluation. As to Code T1015, Coverage Handbook identifies two general services under Medical and Psychiatric Services: medication management and brief individual medical psychotherapy. It would appear that Code T1015 involves medication management, not medical psychotherapy, but Coverage Handbook's primary description of these services is the "prescribing, dispensing, and administering of psychiatric medications." Coverage Handbook 2-1-19. Coverage Handbook requires that Medical and Psychiatric Services be provided, at a minimum, by a "psychiatrist, other physician, physician assistant, or psychiatric ARNP." Leslie Lynch, Respondent's administrative director and part owner, testified that physicians never provide the psychosocial rehabilitation services billed under Code H2017, and about 90% of these claims involve services that are not recommended by physicians. Ms. Lynch testified that physicians never provide the behavioral therapy billed under Code H2019HR, and about 95% of these claims involve services that are not recommended by physicians; it is inferred that the same percentage applies to the behavioral therapy billed under Code H2019HQ. Ms. Lynch testified that physicians do not participate in providing or recommending the treatment plan review billed under Code H0032TS; it is inferred that the same limitations apply to the treatment plan development billed under Code H0032. Ms. Lynch's testimony as to these matters is credited. NHDW Standard Contract Services Included among Petitioner's exhibits is a brief excerpt of the standard contract between DOEA and MCOs operating NHDW plans (NHDW standard contract) for each of the years of the audit.5/ Presumably, Petitioner has determined that this excerpt describes the services covered by the NHDW program that most closely approximate the services actually provided by Respondent. The relevant provision, which is under the category of "acute- care services," provides that the NHDW standard contract includes only those community mental health services that are: "Community-based rehabilitative services, which are psychiatric in nature, recommended or provided by a psychiatrist or other physician." NHDW standard contract § 1.3.3.3. During the audit period, psychiatric, community-based rehabilitative services accounted for very few of the services, by dollar value, provided by MCOs under the NHDW standard contract. A broader category, community mental health services, accounted for little, if any, of the annual capitated rates calculated for the NHDW plans and their MCOs. After testifying that community mental health services totaled only $123,000 of the $172.3 million allocation in 2009 and $57,000 of the $250.2 million allocation in 2011, Tr. 25 and 29, Mathieu Doucet, an actuary with Milliman, Inc., who was responsible for developing the capitated rates for the NHDW program, opined that community mental health services are not provided by the NHDW plans. Tr. 28 and 33. Codes H2017, H2019HR, H2019HQ, H0032TS, and H0032 Are Not Covered by the NHDW Standard Contract; Code T1015 Is Covered by the NHDW Standard Contract As noted above, the NHDW standard contract imposed two conditions for coverage of services that are relevant to this case: 1) the service must be psychiatric in nature and 2) the service must be provided or recommended by a physician. If either of these conditions is unmet, the NHDW standard contract does not cover a service, leaving it reimbursable on a fee-for- service basis. Petitioner has failed to prove that the NHDW standard contract covered services under Code H2017. These psychosocial rehabilitative services are obviously not psychiatric in nature. Psychosocial rehabilitation helps a recipient compensate for his deficits and lead an independent life and does not focus on the treatment or amelioration of symptoms. Psychiatry treats mental disorders.6/ It would be a poor example of psychiatry that attempted neither treatment nor amelioration of symptoms; it would seem that psychosocial rehabilitation picks up where psychiatry leaves off. Because psychosocial rehabilitative services are not psychiatric in nature, they are not covered by the NHDW standard contract, regardless of whether 10% of the underlying services were recommended by physicians or 100% of the underlying services were rendered by physicians. By the end of the hearing, it seemed that Ms. Lynch would have the last--and only--word as to the extent to which any of the services had been recommended or provided by physicians. But, after the hearing, Mr. Young had--or relayed--the last word on this issue. Petitioner deposed Mr. Young on April 17, 2014. Previously having been deposed by Respondent, Mr. Young testified that, after his first deposition, he contacted Ms. Creel to get a list of Respondent's claims because he was concerned that the "fee for service claims potentially could cause problems in our Long Term Care program." Tr. 7.7/ He asked for a service- transaction summary that would show, by each claim submitted by Respondent, who had provided the service. Id. The summary is attached to the deposition transcript as an exhibit. The summary lists 2,658 service transactions and provides details from the CMS 1500 claim forms submitted for each transaction, such as recipient identifying information, date of service, reimbursement amount, "billing provider" name and identification number, and "rendering provider" name and identifying number, as well as, of course, the Code applied to each service transaction. The "rendering provider" for all but 62 of the service transactions is an "MD" named Noel A. Cabrera. The "rendering provider" for 60 of the remaining 62 service transactions is an "MD" named Antonio de Filippo.8/ Two of the service transactions show a "rendering provider" who is not a physician. On direct, Mr. Young never testified that physicians rendered these 2,656 services, nor did he withdraw his earlier determination that Codes H2017, H2019HR, and H0032TS were not covered by the NHDW standard contract. Instead, he testified about the CMS-1500, the information about the rendering provider to be included in item 24J of the CMS-1500, and, of course, the summary, which he sponsored as an exhibit. The intended implication of his testimony and the summary was that physicians had provided all of the services but two, so at least this condition of coverage under the NHDW program had been met. During cross-examination, Mr. Young admitted that Coverage Handbook provides generally that community behavioral health services are provided under the authorization of a group's treating practitioner,9/ and provider reimbursement claims for community behavioral health services must include the treating provider's individual Medicaid number, regardless of who actually renders the service. Id. at 21. In this testimony may lie a hint of why Respondent listed a physician on each CMS-1500 as the referring provider. In any event, for whatever reason that Respondent entered physicians' names in item 24J, the CMS-1500 does not establish that physicians provided nearly all of the services at issue in this case. Several problems preclude any reliance on Mr. Young's testimony or the summary as proof of an assertion to the effect that physicians provided the services in 2,656 claims. First, the inferential evidence of Mr. Young's testimony and the summary is outweighed by the direct evidence of Ms. Lynch's testimony that physicians provided none of the services, at least as billed under Codes H2017, H2019HR, and H0032TS. Ms. Lynch was in the position to know this fact. Mr. Young's "knowledge" is derived from the summary, which is derived from the CMS-1500s, whose preparation, as to the rendering provider, may have been for a reason covered during the cross-examination of Mr. Young. Second, a number of Codes explicitly permit or stipulate the use of a provider who would be less-educated and presumably lower-compensated than a physician. The suggestion that Respondent would use more expensive physicians to provide thousands of service transactions under these Codes does not make any sense and further undermines Petitioner's reliance on the summary to claim that the rendering provider was a physician in 2,656 of the 2,658 service transactions. Third, for the reasons noted in the Conclusions of Law, Mr. Young's testimony during his second deposition, which was essentially a relation of the contents of the summary, and the summary itself were improperly noticed by Petitioner and thus inadmissible. The timing of these items of evidence-- posthearing, when Respondent would have no chance to answer the implications arising therefrom--underscores the importance of adequate notice of the use of the summary. Petitioner has also failed to prove that the NHDW standard contract covered services under Codes H2019HR and H2019HQ. Like psychosocial rehabilitation, individual and group behavioral therapy is not "psychiatric" in nature.10/ Appendix P mentions "psychotherapy"--Code H2010HE, under Medicaid, is for "[b]rief individual medical psychotherapy" and is under Medical and Psychiatric Services. But individual and group therapy provided by someone with not more than a master's degree (individual and family) or a bachelor's degree or certification as an addictions professional is not demonstrably psychiatric in nature. Because individual and group therapy services are not demonstrably psychiatric in nature, they are not covered by the NHDW standard contract, regardless of whether 5% of the underlying services were recommended by physicians or 100% of the underlying services were rendered by physicians. But, for the reasons noted immediately above, Petitioner has also failed to prove that Respondent provided these services through physicians. Lastly, Petitioner has failed to prove that the NHDW standard contract covered services under Codes H0032TS and H0032. Under the HIPAA descriptions of these Codes, nonphysicians are to develop and follow up on mental health service plans. If the treatment team, as testified by Ms. Lynch, does not routinely include a physician, it is difficult to understand how the services under these Codes could be psychiatric in nature. Because the development and review of mental health treatment plans by the treatment teams, which routinely do not include a physician, are not psychiatric in nature, they are not covered by the NHDW standard contract, regardless of whether 100% of the underlying services were rendered by physicians. But, for the reasons noted immediately above, Petitioner has also failed to prove that Respondent provided these services through physicians. Code T1015 is different from the other Codes just discussed because the underlying services, which involve medication management, must be provided by a physician, although not necessarily a psychiatrist. Services under Code T1015 thus satisfy one of the conditions required for coverage under the NHDW standard contract. Services under this Code are also psychiatric in nature, as in the prescribing, dispensing, and administering of "psychiatric" medication. Petitioner has thus proved that the NHDW standard contract covered services under Code T1015. In summary, the results are almost identical to the determinations of Mr. Young and Ms. O'Malley in 2013. Codes H2017, H2019HR, and H0032TS are not covered by the NHDW standard contract so they were reimbursable on a fee-for-service basis to Respondent. The same is true for Codes H2019HQ and H0032, which, although unaddressed by Mr. Young, are insubstantially different from Codes H2019HR and H0032TS, respectively.11/ Based on Mr. Young's advice, with which Ms. O'Malley immediately agreed, only about 1% of the total overpayments sought by Petitioner were actually overpayments. As a result of the recommended order, if adopted by the final order, the total of actual overpayments will actually decrease by a small amount, but, essentially, Respondent will remain entitled to the 99% of the reimbursements that it staked out in its August 2013 letter requesting a hearing. Lack of Necessary Material Facts Supporting Petitioner's Claim for Overpayment in Excess of Amount to Which Respondent Agreed in August 2013 Letter Requesting Hearing At the time of the transmittal of the agency files to DOAH: 1) Mr. Young had advised that Codes H2017, H2019HR, and H0032TS were not covered by the NHDW standard contract and thus were reimbursable to Respondent on a fee-for-service basis, and 2) Respondent had indicated that a hearing would not be necessary if Petitioner would accept Mr. Young's determinations, which reduced by over 99% the total overpayment sought by Petitioner in the PAR and FAR. The transmittal thus constituted Petitioner's rejection of Mr. Young's advice and claim to overpayments in excess of Respondent's concession of $2587.38 of overpayments. As a result of this hearing, Petitioner has proved an overpayment that is slightly less than the amount that Respondent conceded was due. At the time of file transmittal, Petitioner knew or should have known that its claim to overpayments in excess of $2587.38 was not supported by the necessary material facts. Petitioner's program analyst with the most knowledge of the NHDW program had so advised. And Petitioner has produced not a single piece of analysis contradicting Mr. Young's analysis, which was confirmed by Ms. O'Malley without hesitation. In the PAR and FAR, Petitioner contented itself with the establishment of a threshold issue over which there is no controversy whatsoever: matching Petitioner's recipients with enrollees of NHDW plans. Through these critical stages, Petitioner completely ignored the two material facts that were necessary to support its overpayment claim in excess of $2587.38: Respondent's services were psychiatric in nature, and Respondent's services were recommended or provided by physicians. In discovery and at hearing, three of Petitioner's employees testified. The first was Mr. Young, who was deposed by Respondent prior to the hearing. During his deposition on February 24, 2014, Mr. Young identified the April 2013 email and admitted that it was a "fair representation" of his conversation with Ms. Platt. Id. at 32; Depo. Ex. 6. During the deposition, Mr. Young seemed to take a circuitous route to reaffirming his original opinion, but he eventually did. As Mr. Young now understood the issue, a number of NHDW enrollees had "community mental health claims" that were improperly paid on a fee-for-service basis. Tr. 8.12/ In examining the issue, Mr. Young determined that the claims billed by Respondent were "in the range of procedure codes that we would expect a community mental health provider to use." Id. at 10. The problem was that "a number of mental health providers providing these behavioral health services had billed the state plan program as opposed to sending their bills to the [NHDW] plans for reimbursement." Id. at 24. According to Mr. Young, Petitioner had instructed these providers that "they're supposed to check the person's Medicaid eligibility and if they had done a thorough job of that, they would become aware that this person was a [NHDW] plan member and they needed to check with the plan to see if there was coverage of their particular service." Id. At this point of his testimony, Mr. Young was previewing the argument to be presented in testimony at hearing by Petitioner's two witnesses from the Office of Medicaid Program Integrity: Respondent was required either to obtain prior authorization from an MCO before providing services to an MCO's enrollee or to invoice the MCO, not Petitioner, to obtain compensation for services that it rendered to an enrollee. These arguments are rejected below in the discussion of the testimony of these two witnesses. At one point, Mr. Young testified that he was unable to answer a question as to whether the procedure codes that Respondent billed to Petitioner were for services for which the NHDW standard coverage required coverage. Id. at 28-29. Mr. Young said that he was unfamiliar with the procedure codes that Respondent billed and stated that he would have to rely on Petitioner's mental health program specialist for further information. Id. at 30. Under the facts of this case, including Mr. Young's repeated determinations that Codes H2017, H2019HR, and H0032TS were not covered by the NHDW standard contract, this testimony was evasive. At another point, though, Mr. Young acknowledged that the NHDW plans were required to cover specific community based mental health services, and, if a NHDW plan enrollee required another Medicaid-covered service not covered by the NHDW plans, her service would be reimbursed on a fee-for-service basis. Id. at 24-25. Mr. Young also conceded that, if Codes had not been included in the capitated rate to be paid each MCO in the NHDW program, then the NHDW plans would not be required to pay for the services underlying these Codes. Id. at 38. And, eventually, Mr. Young admitted that, as he had advised previously, Respondent's reimbursement claims for Codes H2017, H2019HR, and H0032TS were properly paid on a fee-for- service basis. Id. at 42. The net effect of Mr. Young's deposition was that he confirmed that Codes H2017, H2019HR, and H0032TS were not covered under the NHDW standard contract, and Respondent could thus obtain fee-for-service reimbursements for these services billed to enrollees of MCO's NHDW plans. Petitioner called two witnesses at hearing. Instead of addressing whether Respondent's services were psychiatric in nature and recommended or provided by a physician, these witnesses addressed the arguments that Mr. Young previewed during his deposition. These arguments are based on misreadings of the underlying Medicaid documents, which in no way relieve Petitioner of the necessity of proving that Respondent's services were psychiatric in nature and were provided or recommended by physicians. Pamela Fante, a program administrator in the Office of Medicaid Program Integrity, testified as to the scope of the audit. She stated: "the audit was an overview, not particularly [sic] to this particular provider. It was the issue that services that were to be covered by the [NHDW], which is a managed care program, had possibly--had erroneously been paid as fee-for-service." Tr. 35. Ms. Fante added that "we started looking to see whether any of those services [covered by the NHDW program] were billed and paid fee-for-service." Id. To this point, Ms. Fante is merely describing the process by which the auditors matched Respondent's recipients with enrollees of MCOs operating NHDW plans. Ms. Fante testified Respondent was obligated to determine if a particular recipient was a NHDW enrollee and, if so, "contact the managed care plan to request prior authorization." Id. at 38. Ms. Fante described the authorization process. She testified that Respondent needed to contact the relevant MCO to determine if Respondent was "contracted with [the MCO]" and if the MCO would permit Respondent to provide the service--with the expectation of payment from the MCO. Id. at 39. Ms. Creel's testimony was largely a replay of Ms. Fante's prior authorization/MCO-billing testimony. Ms. Creel testified that Respondent was obligated to determine if the patient was enrolled with an MCO--essentially, in a NHDW plan. Id. at 113-14. Ms. Creel testified that, if the patient was a NHDW enrollee, Respondent then had to "seek authorization from the HMO in which the recipient is currently enrolled prior to providing service unless it's an emergency." Id. at 115 and 156-57. Ms. Creel also addressed the situation in which Respondent sought prior authorization from an MCO, obtained authorization, and then billed the MCO for the service. Id. at 127. Ms. Creel explained: "If [the MCO] denied [prior authorization] as a covered service and [the patient] is a Medicaid recipient, then the provider [e.g., Respondent] could seek reimbursement with Medicaid fee-for-service." Id. at 127-28. In one respect, Ms. Creel goes further than Ms. Fante. Ms. Creel testified that Respondent could seek reimbursement on a fee-for-service basis, if the MCO denied Respondent's request for prior authorization due to a lack of coverage under the NHDW standard contract. Requiring the provider to deal with the MCO under these circumstances seems to raise the MCO to gatekeeper status by treating the MCO denial of coverage as a precondition to reimbursement on a fee-for-service basis, even in situations in which the NHDW standard contract does not cover the service. In any event, none of this prior-authorization/MCO- billing testimony offers any factual support whatsoever for the overpayment claims of Petitioner. This testimony either assumes that the NHDW standard contract covers the service in question or adds prior authorization and MCO billing as conditions for the reimbursement of Respondent's service, even if the NHDW standard contract does not cover the subject service. When Respondent argues in its proposed recommended order that it is allowed to "roll the dice," Respondent is saying that it is allowed to provide the Medicaid-covered service without dealing with the MCO that has enrolled Respondent's recipient: if the NHDW standard contract covers the service, Respondent loses, and if the standard contract does not cover the service, Respondent wins. A close examination of Petitioner's position is that Respondent loses both ways. If the NHDW standard contract covers the service that Respondent has provided, Petitioner has no obligation to reimburse Respondent because doing so would mean that Petitioner is paying twice for the same service. This scenario is entirely irrelevant to the present case, and the focus of Petitioner's witnesses on the prior authorization/MCO-billing issues cannot possibly address the coverage scenario because, if Respondent's service were covered by the NHDW standard contract, Respondent is not going to be reimbursed or, if reimbursed, is going to have to repay the reimbursement. Obtaining prior authorization from the MCO or billing the MCO might spare Respondent the financial loss, but that is a risk that Respondent may choose to run, if it provides the service first; the Medicaid documents do not prohibit Respondent from proceeding in this fashion. The scenario that Petitioner's witnesses are really addressing is the one in which the NHDW standard contract does not cover the service that Respondent has provided: if, through a misapplication of the Medicaid documents, Petitioner were to avoid reimbursing Respondent for such a service, the result is, not that Petitioner avoids paying twice for a service, but it avoids paying at all for a service. To achieve this dubious result, Petitioner turns its focus from the underlying coverage issue and posits prior authorization/MCO-billing as prerequisites for reimbursement for all services, thus assigning to the MCO a gatekeeper role, even for services that it does not cover under the NHDW standard contract. But this illogical construction of the Medicaid documents finds no support in the documents themselves. To support their prior authorization/MCO-billing testimony, Petitioner's witnesses cite to various provisions in the Medicaid documents, but misread each one of them. The Medicaid Provider General Handbook, January 2007 (Provider Handbook)13/ addresses HMOs. Provider Handbook requires a provider to verify a recipient's eligibility for Medicaid and whether the recipient is enrolled in an HMO. Provider Handbook 1-26. Provider Handbook adds: "If a recipient is an HMO member, the provider must seek authorization from the HMO . . . prior to providing services." Id. However, the next paragraph explains that this requirement applies only for services covered by the HMO: "Providers must seek authorization and reimbursement from the HMO for services the HMO covers for its members." Id. Provider Handbook also states: "Medicaid reimbursement is restricted when a Medicaid recipient is enrolled in a managed care program. A provider must verify if the recipient is enrolled in a managed care program prior to providing services." Id. at 3-9. However, the next paragraph adds: "For certain managed care plans such as HMOs and PSNs, the provider must receive authorization for the services that are included in the plan and bill the plan directly." Id. Again, the condition attached to obtaining prior authorization from, and billing, the managed care program is that the subject service is "included in the plan." More broadly, Provider Handbook endorses Respondent's reading of its rights and responsibilities in this case. Provider Handbook14/ explains that fee-for-service reimbursement results in the payment of a fee to a provider for each procedure performed and billed within Medicaid policy limitations, id. at 1-3, and capitation reimbursement is for HMOs and other MCOs that are prepaid a fixed amount monthly for each enrolled recipient. Id. at 1-4. Capitation reimbursement is calculated using "actual fee-for-service Medicaid claims experience for each eligibility category in the plan's operating area." Id. at 1-32. Addressing managed care programs, Provider Handbook notes that most Medicaid recipients are required to obtain services through such programs, but adds: "Recipients who aren't required to enroll in managed care obtain services through the Medicaid providers of their choice on a 'fee-for-service' basis." Id. at 1-19. Nor does the Medicaid Provider Reimbursement Handbook, CMS-1500, July 2008 (CMS-1500 Handbook) support Ms. Fante's testimony. CMS-1500 Handbook provides a checklist to be reviewed before submitting a CMS-1500 claim form. Among the checklist items are obtaining HMO authorization, "if applicable"; obtaining service authorization, "if applicable"; and obtaining service authorization, "if applicable." CMS-1500 Handbook 1-10. For the reasons discussed above, these requirements are applicable only if the HMO or other entity provides coverage for the service that the fee-for-service provider is claiming reimbursement. By the conclusion of the hearing, Petitioner had produced absolutely no evidence on the necessary material facts of whether the subject services repeatedly approved by Mr. Young for reimbursement were psychiatric in nature and whether these services were provided or recommended by a physician. Posthearing, Petitioner turned, once more, to Mr. Young to solicit evidence as to the issue of whether a physician provided or recommended the services at issue. For the reasons already stated, the multiple problems with this evidence preclude a finding that Petitioner thus avoided liability under section 57.105, Florida Statutes. But even if this evidence constituted a material fact sufficient to support the issue of whether a physician provided or recommended the services, it did not constitute a material fact sufficient to support Petitioner's claim because it fails to address the issue of whether the service was psychiatric in nature. As noted above, these issues are conjunctive, not disjunctive. Without any evidence that, most importantly, psychosocial rehabilitation is psychiatric, Petitioner failed even to introduce evidence necessary to its overpayment claim for the simple fact that there is none.
Recommendation It is RECOMMENDED that Petitioner enter a final order determining a total overpayment for the services billed by Respondent during the audit period that are not under Codes H2017, H2019HR, H2019HQ, H0032TS, and H0032.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: In November of 1983, HMA filed its application for a Certificate of Need to construct and operate a 60-bed adolescent treatment center in Orlando, Florida. An omissions response was filed by HMA in January of 1984. Thereafter, HRS issued its initial intent to grant the application and PIO requested an administrative hearing. HMA is a privately held corporation which owns or manages twelve or thirteen acute care hospitals in the States of Kentucky, West Virginia, Pennsylvania, Missouri, Texas and Florida, several of which are psychiatric hospitals. The proposed long-term psychiatric treatment facility for adolescents is patterned after a 55-bed program currently operated by HMA in Arlington, Texas. The proposed facility will be a freestanding campus-like setting located on ten to fifteen acres of land in the southern portion of Orlando. The precise site has not yet been selected. The single-story facility will have a total size of approximately 45,000 to 50,000 square feet and will be divided into two separate units which connect into a core area containing various support services, such as offices, a gymnasium, a swimming pool, a media center, and an occupational therapy area. While the location finally selected for the facility will have a bearing on the site costs of the project, the estimated construction costs of approximately 3.1 billion do contain a contingency factor and are reasonable at this stage of the project. Each unit will be served by two interdisciplinary treatment teams headed by a physician or a psychiatrist. Key personnel for the facility, such as department heads and program directors, will most likely be recruited from outside the Orlando area in order to obtain persons with experience in long-term care for adolescents. The treatment program is designed to serve adolescents between the ages of 10 and 19, though the bulk of patients will be middle school and high school individuals between the ages of 13 and 17. While the primary service area will be adolescents in District 7, the remainder of the central Florida region is identified as a secondary service area. A full educational program at the facility is proposed. The concept of the hospital will be to treat the whole person, not just his psychiatric problems, and the treatment program will include and involve family members and other factors which may have a bearing on the adolescent's ability to fit into society. The form of treatment is based upon a "levels" approach -- a form of behavior modification wherein privileges are granted for appropriate behavior and the patient is allowed to move up to the next succeeding level of privileges. It is contemplated that the average length of stay for a patient will be approximately six months -- the average time anticipated for a patient to move from the admission level to the level of discharge. HMA intends to seek accreditation of its proposed facility from the Joint Commission on Accreditation of Hospitals. The total estimated project cost for the proposed facility is $6,307,310.00. Financing is to be obtained either through a local bond issue or by a private lending institution. Based upon an evaluation of HMA's audit reports for the past three years, an expert in bond financing of health care facilities was of the opinion that HMA would be eligible either for a private placement or a bond issue to finance the proposed project. HMA intends to charge patients $325.00 per day, and projects an occupancy rate of 80 percent at the end of its second year of operation. This projection is based upon a lack of similar long-term psychiatric facilities for adolescents in the area, the anticipated, experience at the Arlington, Texas adolescent facility and the anticipated serving of clients from CYF (Children Youth and Families -- a state program which; serves adolescents with psychiatric and mental problems). Although no established indigent care policy is now in existence, HMA estimates that its indigency caseload will be between 3 and 5 percent. It is anticipated that the proposed facility will become a contract provider for CYF for the care and treatment of their clients and that this will comprise 20 percent of HMA's patient population. HRS's Rule 10-5.11(26), Florida Administrative Code, relating to long- term psychiatric beds, does not specify a numerical methodology for quantifying bed need. However, the Graduate Medical Education National Advisory Committee (GMFNAC) methodology for determining the need for these beds is generally accepted among health care planners. The GMENAC study was initially performed in order to assess the need for psychiatrists in the year 1990. It is a "needs- based" methodology, as opposed to a "demand-based" methodology, and attempts to predict the number of patients who will theoretically need a particular service, as opposed to the number who will actually utilize or demand such a service. Particularly with child and adolescent individuals who may need psychiatric hospitalization, there are many reasons why they will not seek or obtain such care. Barriers which prevent individuals from seeking psychiatric care include social stigma, the cost of care, concerns about the effectiveness of care, the availability of services and facilities and other problems within the family. Thus, some form of "demand adjustment" is necessary to compensate for the GMENAC formula's overstatement of the need for beds. The GMENAC formula calculates gross bed need by utilizing the following factors: a specific geographic area's population base for a given age group, a prevalency rate in certain diagnostic categories, an appropriate length of stay and an appropriate occupancy factor. In reaching their conclusions regarding the number of long-term adolescent psychiatric beds needed in District 7, the experts presented by HMA and PIO each utilized the GMENAC formula and each utilized the same prevalency rate for that component of the formula. Each appropriately used a five-year planning horizon. However, each expert reached a different result due to a different opinion as to the appropriate age group to be considered, the appropriate length of stay, the appropriate occupancy factor and the factoring in of a "demand adjustment." In calculating the long-term adolescent psychiatric bed need for District 7 in the year 1989, HMA's expert used a population base of ages 0 to 17, lengths of stay of 150 and 180 days, an occupancy level of 80 percent and an admissions factor of 96 percent. Utilizing those figures, the calculation demonstrates a 1989 need for 158 beds if the average length of stay is 150 days, and 189 beds if the average length of stay is 180 days. If the population base is limited to the 10 to 19 age bracket, the need for long-term psychiatric beds is reduced to between 70 and 90, depending upon the length of stay. From these calculations, HMA's expert concludes that there is a significant unmet need for long-term adolescent psychiatric beds in District 7. This expert recognizes that the numbers derived from the GMENAC formula simply depict a statistical representation or indication of need. In order to derive a more exact number of beds which will actually be utilized in an area, one would wish to consider historical utilization in the area and/or perform community surveys and examine other site-specific needs assessment data. Believing that no similar services or facilities exist in the area, HMA's need expert concluded that there is a need for a 60-bed facility in District 7. In applying the GMENAC methodology, PIO's need expert felt it appropriate to utilize a base population of ages 10 through 17, an average length of stay of 90 days and an occupancy rate of 90 percent. Her calculations resulted in a bed need of 37 for the year 1990. Utilizing a length of stay of 120, 150 and 180 days and a 90 percent occupancy rate, a need of 50, 62 and 75 beds is derived. If an occupancy rate of 80 percent is utilized, as well as a population of ages 10 - 17, the need for beds is 42, 56, 70 and 84, respectively, for a 90, 120, 150 and 180 day average length of stay. The need expert for PIO would adjust each of these bed need numbers by 50 percent in order to account for the barriers which affect the actual demand for such beds. Since the HMA proposed facility intends to provide service only to those patients between the ages of 10 and 19, use of the 0 - 17 population would inflate the need for long-term adolescent psychiatric beds. Likewise, PIO's non-inclusion of 18 and 19 year olds understates the need. PIO's use of a 90-day average length of stay would tend to understate the actual need in light of HMA's proposed treatment program which is intended to last approximately six months. While some demand adjustment is required to properly reflect the barriers which exist to the seeking of long-term adolescent psychiatric care, the rationale of reducing by one-half the number derived from the GMENAC methodology was not sufficiently supported or justified. Even if HMA's calculations were reduced by one-half, a figure of between 79 and 94 beds would be derived. The existence of other long-term adolescent psychiatric beds in District 7 was the subject of conflicting evidence. West Lake Hospital in Longwood, Seminole County, holds a Certificate of Need and a license as a special Psychiatric hospital with 80 long-term beds. However, the Certificate of Need was issued prior to the adoption of Rules 10-5.11(25) and (26), Florida Administrative Code, when anything in excess of 28-days was considered long- term. The West Lake application for a Certificate of Need referred to a four- to-six week length of stay -- or a 28 to 42 day period --for adults, and a ten week, or 70 day length of stay for children and adolescents. In preparing inventories for planning purposes, HRS considers the 40 child and adolescent psychiatric beds at West Lake Hospital to be acute or short-term beds. The West Lake facility is not included in HRS's official inventory of licensed and approved long-term care beds as of October 1, 1984. In fact, the only long-term care beds listed for District 7, in addition to HMA's proposed psychiatric facility, are beds devoted to the treatment of substance abuse. PI0 is the holder of a Certificate of Need to construct and operate a 60-bed short-term adolescent psychiatric hospital in Southwest Orange County, and is currently planning the actual development and construction of the facility. If PIO is not able to reach the census projections contained in its Certificate of Need application, its ability to generate earnings could be adversely impacted. Even a five percent decrease in PIO's census projections would require PIO to either raise its rates or make reductions in direct costs. This could include a decrease in staffing, thus affecting a reduction in the available programs, problems in attracting quality staff and ultimately a reduction in the quality of care offered at the PIO facility. In a batch subsequent to the HMA application, PIO requested the addition of 15 long-term adolescent psychiatric beds and 15 substance abuse beds. When an adolescent psychiatric patient is evaluated for placement in a hospital setting, it is generally not possible to determine how long that patient will require hospitalization. The adolescent psychiatric patient is often very guarded, distrusting both parents and other adults, and it is difficult to obtain full and necessary information from both the patient and the parents. Several weeks of both observation and the gathering of data, such as school records, are necessary in order to access the adolescent patient's degree of disturbance. With respect to treatment programs, there is no sharp medical demarcation between a 60-day period and a 90 day period. Patients in short-term facilities often stay longer than 60 days and patients in long term facilities often stay less than 90 days. The length of stay is very often determined by the parents, in spite of the treatment period prescribed by the physician. The treatment programs in both short-term and long-term psychiatric facilities are very similar, and short- and long-term patients are often treated in the same unit. Staffing for the two types of facilities would be basically the same, with the exception, perhaps, of the educational staff.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that HMA grant HMA's application for a Certificate of Need to construct and operate a 60-bed long-term adolescent psychiatric facility in Orlando, Florida. Respectfully submitted and entered this 9th day of July, 1985, in Tallahassee, Florida. DIANE D. TREMOR, 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 9th day of July, 1985. COPIES FURNISHED: C. Gary Williams and Michael J. Glazer P. O. Box 391 Tallahassee, Florida 32302 John M. Carlson Assistant General Counsel 1323 Winewood Blvd. Building One, Suite 407 Tallahassee, Florida 32301 Robert S. Cohen O. Box 669 Tallahassee, Florida 32301 David Pingree Secretary Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32301 =================================================================
Findings Of Fact In December, 1984, Petitioner, a black female, began employment with the Respondent. The Petitioner was hired for two positions. In one position, the Petitioner was employed as a (40 percent FTE) Cook, working 40 percent of a full time 40 hour work week, or 16 hours weekly. In the other position, the Petitioner was employed as an "on-call" Mental Health Technician I. The Mental Health Technician employment was an OPS (other personnel services) position with no regularly scheduled working hours. Her place of employment was the geriatric residential treatment system (GRTS) center at Bristol, Florida. On July 11, 1986, the Petitioner was transferred from the OPS Mental Health Technician position to a (50 percent FTE) Mental Health Technician position. In the new position, which entailed completion of a six month probationary period, the Petitioner worked 50 percent of a full time 40 hour work week, or 20 hours weekly. Combined with the job as Cook, Petitioner was employed for 36 hours weekly. At some point prior to the end of 1986, the Petitioner wrote to Ronald Kirkland, executive director for the Respondent. The Petitioner apparently felt that she was the subject of discrimination. The Petitioner demanded that Mr. Kirkland meet with her. She was advised to proceed in accordance with the Apalachee Center's personnel grievance procedure. Assistance in filing a grievance was offered to her, but she refused and continued to demand that Mr. Kirkland personally meet with her. The demand was rejected. In January, 1987, the Petitioner was informed that her job performance in the Mental Health Technician position was not satisfactory. At a meeting, held January 20, 1987, the Petitioner was given a memorandum (dated January 12, 1987) detailing a number of issues which were the basis for her unsatisfactory evaluation. (R-1) Such issues generally included disagreements over working hours, noncooperation with coworkers and abusiveness towards the Program Supervisor. The Petitioner acknowledged the memorandum, and stated that she believed it to be "unreasonable." Due to the unsatisfactory nature of her performance, the probationary period was extended for three months. At the end of the three month extension, in April, 1987, she was again evaluated. She received an above satisfactory evaluation in all categories except attitude, which was satisfactory. By March, 1987, the Respondent had determined that problems existed with the day treatment program at the Bristol GRTS facility and began planning to fully evaluate the operation. The Petitioner was working in the day treatment program. Laura Harris, Day Treatment Coordinator for the Respondent, was assigned to perform the review by Dr. William Perry, Respondent's Director of Geriatric Services. The process began in April, 1987. The staff of the Bristol GRTS facility was notified that the review was being performed and that Ms. Harris would be visiting at specific times to observe their performance. Ms. Harris requested that each day treatment staff person prepare four activities for GRTS clients and attempted to schedule times to observe the staff's presentation of the activities. The Petitioner failed to respond to Ms. Harris' request and did not schedule activity observation sessions. Eventually, Ms. Harris attended one of the Petitioner's activities periods without providing advance notice. Other day treatment staff were responsive to Ms. Harris' requests and cooperated with her suggestions. The Petitioner was not cooperative. The review period continued through August, 1987. On May 5, 1987, the Petitioner resigned from her position as Cook, effective May 18, 1987, and advised her program supervisor that she was available for additional employment as an OPS Mental Health Technician. The Petitioner's requested additional employment would have been during the evening, night and weekend shifts. The request was based on the departure, several weeks earlier, of the person employed as the 11:00 p.m. to 7:00 a.m. Mental Health Technician. The 11:00 p.m. to 7:00 a.m. shift is less popular and more difficult to staff than other work periods. Janey Hall, a black female, is the Bristol GRTS supervisor responsible for securing staff coverage for the evening shifts. The OPS evening shift assignments were generally rotated among staff members. However, due to the difficulty in staffing the 11:00 p.m. to 7:00 a.m. shift, Ms. Hall proposed assigning the coverage to a single individual. The proposal was approved by the Bristol GRTS program supervisor and by Dr. Perry. Ms. Hall selected Penny Mize, a white female, to work the 11:00 p.m. to 7:00 a.m. shift until a permanent employee was hired for the shift. Ms. Mize began working the shift immediately upon the departure of the former employee. There were occasions when black employees filled in for Ms. Mize. As to the Petitioner's request for additional employment hours, the Respondent's supervisory staff was concerned about the Petitioner's ability to successfully respond to the demands of evening, night and weekend shifts. Those shifts provide less supervision of employees than does the day shift. Due to previously noted problems with the Petitioner's job performance, as reported to Dr. William Perry, it was determined that the Petitioner required greater supervision than was available to her on the OPS shifts. Accordingly, her request for additional OPS hours was rejected on May 13, 1987, by Dr. Perry. On May 21, 1987, the Petitioner filed a complaint with the Florida Commission on Human Relations, FCHR No. 87-3619, alleging that the denial of her request for OPS hours as a Mental Health Technician was based on racial discrimination. The Petitioner alleged that Ms. Mize, a white employee, was permitted to work the additional hours, 11:00 p.m. to 7:00 a.m. There was no evidence presented by the Petitioner which would indicate that the denial of her request for the additional hours was racially motivated or based on any factor other than her job performance and the decision to limit her employment to more closely supervised shifts. Subsequent to the Petitioner's filing of FCHR 87-3619, Laura Harris completed the review of the Bristol GRTS facility. Based upon her review she prepared an evaluation of the Petitioner's job performance and a corrective action plan which specified steps the Petitioner was directed to complete in order to continue her employment and improve her job skills, both dated August 26, 1987. (R-3, R-4). The evaluation was severely critical of the Petitioner's attitude, and her unwillingness to work towards improving her interaction with co-workers and facility clients. The evaluation recommended that her employment "be terminated immediately". The Petitioner received the documents on September 10, 1987. Her written comments on the documents indicate that she disputed Ms. Harris' evaluation, and noted that she alone was being required to comply with the corrective action plan. However, the plan was related to the lack of effort and cooperation the Petitioner demonstrated during the Harris review. Other employees, black and white, were cooperative and no other corrective action plans were necessary. During the summer of 1987, the Respondent determined that additional assistance in providing nursing services to Bristol GRTS clients was required. The Respondent initiated establishment of a part-time Licensed Practical Nurse position and decided to delete the Petitioner's Mental Health Technician position to fund the new LPN. On October 15, 1987, the Petitioner was advised by Dr. Perry that the Mental Health Technician position was being eliminated to provide for the LPN position. Dr. Perry proposed to the Petitioner that she accept a position as Cook which would provide 32 hours weekly employment. The Petitioner's period of employment as Cook had been satisfactory. The Petitioner did not agree or refuse to accept the position, but said she would consider it. On October 26, 1987, Laura Harris prepared a follow-up evaluation to the corrective action plan of August 26, 1988. Ms. Harris noted improvement in the Petitioner's performance, although there were substantial problems remaining. Apparently, unaware that the Petitioner's Mental Health Technician position was being eliminated to provide for an LPN position, Ms. Harris recommended that the Petitioner be reevaluated on November 30, 1987. On October 27, 1987, Dr. Perry contacted the Petitioner and informed her that she would be transferred to the Cook's position and that her salary as Cook would remain at the same level as her Mental Health Technician salary, causing no reduction in her rate of pay as could have occurred. The following day, Dr. Perry met with the Petitioner and reiterated the proposal. There was no response from the Petitioner. On November 12, 1987, Dr. Perry delivered a letter, dated November 2, 1987, from Mr. Kirkland, executive director of the Respondent, confirming the prior discussions between Dr. Perry and the Petitioner. The letter stated that her employment as Mental Health Technician would cease on November 12, 1987, and that she would be paid for two additional weeks in lieu of notice. Alternatively, the letter stated that she could begin employment in the Cook's position on November 13, 1987. At the time the letter was delivered, the Petitioner stated that, due to the lack of child care availability, she could not begin the Cook's job on November 13. Dr. Perry suggested she begin on November 16, but the Petitioner refused. The Petitioner's employment at the Bristol GRTS facility concluded on November 12, 1987. In December, 1987, she filed a complaint with the Florida Commission on Human Relations, FCHR 88-1288, alleging that the elimination of her position as Mental Health Technician was in retaliation for the filing of her earlier complaint. There was no evidence that the Respondent's decision to employ an LPN instead of a Mental Health Technician was in retaliation for the earlier complaint or based on any consideration other than to better provide nursing care to the elderly clients of the Bristol GRTS facility. The evidence indicates that the decision to eliminate the Petitioner's position, rather than the position of another Mental Health Technician, was based on the Petitioner's poor job performance during the Harris evaluation period and was made without regard to the earlier complaint. Although at the hearing, the Petitioner repeatedly accused the Respondent's witnesses of perjured testimony, there is no evidence to support the accusation.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Florida Commission on Human Relations enter final orders dismissing the Complaints and Petitions for Relief in FCHR Cases No. 87-3619 and 88-1288. DONE and ENTERED this 21st day of December, 1988, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 21st day of December, 1988.
