The Issue Did Respondent, Tonya Shrader, R.N. (Ms. Shrader), violate section 464.018(1)(j), Florida Statutes (2015),1/ by being unable to practice nursing with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics, or chemicals or any other type of material, or as a result of any mental or physical condition? If Ms. Shrader violated section 464.018(1)(j), what penalty should be imposed?
Findings Of Fact Section 20.43 and chapters 456 and 464, Florida Statutes, charge the Department of Health, Board of Nursing, with the licensing and regulation of nurses. At all times material to the allegations in the Administrative Complaint, Ms. Shrader was a licensed registered nurse in the State of Florida. She holds license RN 9180605. Ms. Shrader has a complicated history of psychiatric and medical problems that affect her ability to practice nursing with the level of skill and safety to patients required in the State of Florida. Ms. Shrader has suffered from depression since childhood. Ms. Shrader treated her depression with a variety of medications, including: Lithium, Depakote, Pamelor, Elavil, Topamax, Lamictal, and Prozac. In the past five years, Ms. Shrader has not received treatment for her depression. Ms. Shrader also suffers from anxiety. Ms. Shrader is not receiving treatment for her anxiety. In addition to depression and anxiety, Ms. Shrader suffers from chronic severe migraines. The cause has not been determined despite extensive neurological evaluations. Ms. Shrader has been prescribed Tramadol, Fiorcet, and Clonazepam to treat her migraines. At all times material to the Department's complaint, Ms. Shrader was prescribed Fiorcet for her migraine symptoms. Between March 24, 2012, and July 22, 2013, Ms. Shrader complained of multiple neurological symptoms, including double vision, balance and gait instability, and tingling and numbness in her hands. Ms. Shrader elected to undergo extensive neurological testing to rule out demyelinating disease, multiple sclerosis, and palsy. The tests provided no indication that Ms. Shrader's symptoms resulted from a neurological disorder. At all times material to this proceeding, Ms. Shrader worked as a registered nurse in the Neurological and Psychiatric Unit at Gulf Coast Medical Center (Gulf Coast). On December 20, 2013, Ms. Shrader took an excessive dose of four Fiorcet pills. She told her family that she "plans to keep overdosing until she dies," and that she "predicts that [she] will be dead by the end of the year." Ms. Shrader's family contacted the Emergency Medical Services. Ms. Shrader was transported to Lehigh Regional Medical Center, where she was treated for an overdose. Ms. Shrader was involuntarily admitted to SalusCare, Inc. (SalusCare), for inpatient psychiatric observation and treatment. On December 20, 2013, the Crisis Stabilization Unit (CSU) at SalusCare conducted an in-patient psychiatric evaluation of Ms. Shrader. During the evaluation, Ms. Shrader denied past psychiatric treatments or psychiatric medication. Ms. Shrader also denied that her Fiorcet overdose was an attempted suicide. Her statements during her SalusCare evaluation contradict her medical charting and statements she has made, which indicate that she has an extensive history of psychiatric illnesses. SalusCare discharged Ms. Shrader on December 23, 2013. The director of nursing at Gulf Coast contacted the Intervention Project for Nurses (IPN) about Ms. Shrader. IPN is an impaired practitioner consultant to the Department's Board of Nursing. IPN works with nurses and monitors them for safety to practice issues. IPN contacted Ms. Shrader on January 2, 2014, to discuss her entering the program. Ms. Shrader denied that she was impaired or abused any substances. She admitted that she was depressed. But she said that she stopped her depression treatment approximately five years earlier. IPN asked Ms. Shrader to undergo an evaluation to determine her fitness to practice nursing. Ms. Shrader scheduled an evaluation with Theodore Treese, M.D., an expert in the psychiatric treatment, monitoring, and care of health care practitioners. He conducted the evaluation on January 28, 2014. Dr. Treese diagnosed Ms. Shrader with severe major depressive disorder; alcohol abuse; opioid abuse; sedative, anxiolytic abuse; relational problems, not otherwise specified; and rule-out polysubstance abuse. During the evaluation, Ms. Shrader attempted to hide her in-patient psychiatric treatment at SalusCare. Based on Ms. Shrader's diagnoses, Dr. Treese determined that Ms. Shrader was not capable of practicing as a registered nurse with reasonable skill and safety to patients. Dr. Treese recommended that Ms. Shrader seek treatment at a substance abuse treatment center at a level of at least partial hospitalization. Ms. Shrader did not agree with Dr. Treese's recommendation. IPN gave Ms. Shrader the opportunity to seek a second opinion from another IPN-approved evaluator. IPN informed Ms. Shrader that she needed to either obtain a second opinion or enter the recommended treatment before April 14, 2014; otherwise, IPN would close her intake case file. Ms. Shrader refused to obtain a second opinion or enter into the recommended treatment. IPN closed Ms. Shrader's file on April 14, 2014. On December 2, 2014, Mark Sylvester, M.D., a physician specializing in psychiatry and addiction medicine, evaluated Ms. Shrader pursuant to Department Order. Dr. Sylvester reviewed Ms. Shrader's medical records, the IPN intake case file, and the Department's investigative report. Dr. Sylvester also asked Ms. Shrader to undergo a urine and hair drug screen. Ms. Shrader did not participate in the screens. Dr. Sylvester diagnosed Ms. Shrader with recurrent major depressive disorder, opioid abuse, alcohol abuse, benzodiazepine abuse, nicotine dependence, factitious disorder versus malingering, rule-out hypochondriasis, and rule-out conversion disorder. During the evaluation, Ms. Shrader attempted to conceal her psychiatric history, substance abuse, and symptoms of depression. Ms. Shrader's unwillingness to be forthcoming during her evaluation demonstrated denial of her symptoms and presented a significant barrier to her treatment and recovery. Dr. Sylvester concluded that Ms. Shrader's poor judgment and decision-making detrimentally affected her ability to practice nursing. Specifically, Ms. Shrader's judgment in attempting to practice nursing while impaired, her lack of insight into her illnesses, her inability to follow treatment recommendations, and her disagreement with medical professionals showed poor judgment. Poor judgment can affect decision-making while practicing nursing, especially in a crisis situation. Dr. Sylvester concluded that Ms. Shrader was unable to practice nursing with reasonable skill and safety by reason of her depression, use of alcohol, opioids, and benzodiazepines, lack of insight into her symptoms, and poor judgment. In order for Ms. Shrader to be able to practice nursing with reasonable skill and safety to patients, she must: undergo treatment at a residential treatment center; enter into an IPN monitoring agreement; and submit to a hair analysis drug screening test. These steps are essential to Ms. Shrader's recovery and to regaining the ability to practice nursing with reasonable skill and safety to patients. There is no evidence that Ms. Shrader has taken any of these steps. Ms. Shrader is unable to practice nursing with reasonable skill and safety to patients.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Health, Board of Nursing, enter a final order: finding that Respondent, Tonya L. Shrader, R.N., violated section 464.018(1)(j); requiring her to undergo an IPN evaluation; imposing a suspension of her license until such time as she undergoes an IPN evaluation; requiring compliance with IPN recommendations, if any; requiring the payment of an administrative fine in the amount of $250.00; and awarding costs for the investigation and prosecution of this case, as provided in section 456.072(4) to the Department. DONE AND ENTERED this 29th day of July, 2015, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of July, 2015.
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 Ellen K. Clark is a registered nurse holding license number 0927962 issued by the Florida State Board of Nursing. Mrs. Clark was employed at Florida Hospital North, Orlando, Florida, in August and in September of 1977, in the Intensive Care Unit (ICU). During her employment, she had access to Meperedine (Demerol) used to medicate patients in the ICU. On September 28, 1977, Joann Johnson, Head Nurse of the ICU, discovered a shortage in the quantity of Demerol during a routine drug audit. She asked Clark to assist her in a recount, and at that time, Clark admitted to her that she was powerless to drugs and had taken and used Demerol from the ICU. Clark also admitted having been recently hospitalized for the treatment of Demerol abuse at Palm Beach Institute. Clark made similar admissions to the Board's investigative nurse. The chief pharmacist for Florida Hospital North, Arthur Lu, identified narcotic control forms for the drug Demerol which were received into evidence as Exhibit 1. Lu also stated that Demerol is the trade name for the drug Meperedine. Kathy Wahl, Assistant Director of Medical Records, identified the medical records for Jerome Kalish, a patient at Florida Hospital North. These records were received into evidence as Exhibits 2, 3 and 4. These records show that Clark withdrew many more doses of 50mg. and 75mg. Demerol injectable than were administered to Kalish. No wastage of these drugs was recorded as required. Dr. Kenneth Crofoot, a clinical psychologist who had treated Clark from October until December, 1977, testified concerning his treatment of Clark. Dr. Crofoot obtained his doctorate in guidance counseling from George Washington University and did a two year residency in the specialty in the Federal Mental Hospital in Washington, D.C. He worked in this field in a hospital environment until his retirement to Florida. Since his retirement, he has done volunteer counseling with the Seminole County mental health authorities and has served as a consultant to the state courts in Seminole County. He has been qualified and has testified as an expert witness in both the federal and state courts. Mrs. Clark was referred to Dr. Crofoot by the pastor of a Seventh Day Adventist Church, of which denomination Dr. Crofoot is also an ordained minister. Dr. Crofoot has had experience with the treatment of drug addicts and alcoholics in his career as a clinical psychologist. Mrs. Clark admitted to Crofoot that she was taking Demerol, and Crofoot assumed that she was addicted to the drug. Mrs. Clark sought Dr. Crofoot's help and treatment for her drug problem. Mrs. Clark met one hour per week for three months in therapy sessions with Dr. Crofoot. Dr. Crofoot diagnosed Mrs. Clark's problem as a serious lack of self identity and a lack of value system sufficient to permit her to cope with the stress of personal crises. This condition was brought to a critical stage by Mrs. Clark's concern over her husband's health, a recent move to the Orlando area where she had no friends, and the financial problems which arose from the move and her husband's illness. Dr. Crofoot was of the opinion that Mrs. Clark had received a good start in the treatment of her problems which were the cause of her abuse of Demerol while at Palm Beach Institute. Building on her earlier treatment, Dr. Crofoot expressed his professional opinion that Mrs. Clark developed a new sense of self identity and a value system sufficient to now enable her to cope with her personal problems without relying on drugs. Mrs. Clark has been employed since October by a physician specializing in Neurology for four hours a day, five days a week. Mrs. Clark advised the doctor of her problem with drugs when she sought employment with him, and at that time, an agreement was reached that she would have no responsibility for the administration of the drug Demerol. Mrs. Clark admitted that during her employment she had abused Demerol twice, a fact which she reported immediately to the doctor. The first instance of abuse occurred in October, shortly after commencing work with the doctor, and again in December of 1977. She has continued her employment with the physician and has not had any further episode of drug abuse.
Recommendation Because of the admissions of the Respondent, the only real issue presented in this case is the penalty to be assessed. This is made very difficult by the extreme candor of Mrs. Clark. At the proceeding, Mrs. Clark admitted all of the allegations against her except admitting she was using 125mg. of Demerol I.V. every four hours. She was very assertive and refused to admit this allegation of the complaint, which was subsequently determined to be an error. Mrs. Clark admitted to Mrs. Johnson her abuse of the drug Demerol prior to even a repeat audit of the drugs on hand in the ICU or the records were reviewed to determine who was responsible for the shortages. Mrs. Clark advised her current employer that she had a drug problem when she was initially interviewed. She also admitted with absolute candor at the hearing that she had abused Demerol at his office but had reported this to the doctor immediately. Such honesty substantiates Dr. Crofoot's observation that Mrs. Clark has developed a new and stronger value system. Mrs. Clark offered no excuse for her conduct and admitted her problem. She also admitted when she "fell off the wagon." Her only defense in mitigation of the charges against her was that she was seeking help for her problem and was making progress. From her testimony concerning her abuse of drugs in October and December, a question clearly exists of whether Mrs. Clark has conquered her problem. However, she has made progress and appears to be a good candidate for rehabilitation. As an ICU nurse, Clark must be a competent, experienced nurse and it would be worth the attempt to salvage her nursing career. Her abuse of drugs after her release from treatment at Palm Beach Institute and again after the termination of therapy with Dr. Crofoot indicates that she receives support from her therapy, and should not be abruptly released from therapy while practicing. Mrs. Clark has the apparent support of her husband, her employer, and others in the community in assisting her with her problem. This is a strong base upon which to build a program of probation which would provide reasonable safe guards to the public while permitting Mrs. Clark to overcome her problem without lose of her nursing credentials which would undoubtedly be a personal set back. Based upon the foregoing findings of fact and conclusions of law, it is recommended that the Board revoke Mrs. Clark's license but that the enforcement of the revocation be suspended on the condition that Mrs. Clark reenter therapy and that the therapist make regular reports to the Board on Mrs. Clark's progress, that Clark be required to appear personally before the Board on a regular basis to report on her progress, that her employer be advised by Mrs. Clark of her drug problem and the conditions of the Board's probation, that the employer be required to advise the Board that Mrs. Clark has disclosed her problem and be required to report any abuse of drugs by Mrs. Clark or any narcotic discrepancies in which she may be involved, that Mrs. Clark be required on her own to cease employment when it appears to her that she is faced with a personal crisis with which she feels unable to cope until the crisis or stress is resolved, that it be clearly understood that a reoccurrence of the abuse of any drug or unprofessional conduct by Mrs. Clark will result in her immediate revocation through imposition of the suspended revocation, and that this probation shall remain in effect until the Board is satisfied that Mrs. Clark is fully rehabilitated DONE and ORDERED this 24th day of February, 1978, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Julius Finegold, Esquire 1007 Blackstone Building 233 East Bay Street Jacksonville, Florida 32202 Mrs. Ellen K. Clark 5338 Dawn Mar Street Orlando, Florida 32810 John H. Mogan, Esquire 2900 N. E. 33rd Avenue Ft. Lauderdale, Florida 33308
The Issue The issue is whether Petitioner Thomasina Barnes should be granted an exemption from disqualification from employment pursuant to Section 435.07, Florida Statutes.
Findings Of Fact In January of 1976, Petitioner was caught shoplifting merchandise from a retail clothing store. The police recovered the stolen property in the parking lot where they arrested Petitioner. As a result of that incident, Petitioner pled guilty to a charge of Grand Larceny, a third degree felony on May 5, 1976. On December 14, 1988 Petitioner pled no contest to a misdemeanor charge of Offering for the Purpose of Prostitution. Petitioner was suffering from an addiction to alcohol and/or illegal drugs when she committed the above referenced crimes. After her last arrest in 1988, Petitioner continued to be drug dependent but was able to hold down temporary jobs. She worked as a cook at Popeye’s Restaurant, a mail clerk at Southern Bell, and a data processor for Respondent. Petitioner finally realized she needed help to live a drug free life. She checked herself into a drug detoxification program in March of 1993. After completing the medical detoxification program, Petitioner voluntarily entered a residential drug treatment program where she remained until July of 1993. Petitioner then became a resident of an extended care drug treatment program up through December 7, 1993. When Petitioner completed the residential treatment program, she was actively participating in the Alcoholics Anonymous (AA) and Narcotics Anonymous (NA)twelve step programs. Petitioner lived a drug free life for twenty months after being discharged from the residential drug treatment program. She had one relapse in 1995. However, Petitioner immediately returned to NA treatment and continued working her twelve step program. Petitioner has not abused any substance in two years. She has maintained a close relationship with her NA sponsor during that time. Her involvement with NA activities has progressed over time. She now serves as a sponsor for other members of NA. She is an officer in her NA home group. Petitioner has become an active member of her church. She sings in the choir, serves as choir secretary, leads devotions, and acts as program leader. Petitioner is also active in her community. One activity she particularly enjoys is helping with her nephew’s little league baseball team. Petitioner currently is employed as an intake coordinator/receptionist at the I.M. Salzbacher Center for the Homeless. Sometime prior to August 23, 1996, Petitioner began working a second job in the evenings at Vannie Edwards Foster Group Home as a cook and house cleaner for six disabled male clients. The clients have mental and physical disabilities and are unable to function independently. In addition to her cooking and cleaning duties, Petitioner also served as a companion and mother figure to the clients. She would sometimes stay at the group home overnight but her normal work hours were from 4:00 p.m. to 9:00 p.m. Petitioner considered this position as an additional means to make “living amends.” On or about August 23, 1996, Respondent advised Petitioner that she was disqualified from continuing employment as a caretaker in a developmental services facility such as the Vannie Edwards Foster Group Home. Petitioner filed a request for exemption from disqualification on or about September 5, 1996. Respondent scheduled an Exemption Hearing for September 18, 1996. After the Exemption Hearing, Respondent denied Petitioner’s request for exemption from disqualification by letter dated September 19, 1996.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered granting Petitioner an exemption from disqualification from employment as a caretaker in a developmental services facility. DONE and ENTERED this 19th day of March, 1997 in Tallahassee, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 19th day of March, 1997. COPIES FURNISHED: Roger L.D. Williams, Esquire Department of Children and Families Post Office Box 2417 Jacksonville, FL 32231-0083 Thomasina Barnes 4818 Foxboro Road Jacksonville, FL 32208 Gregory D. Venz, Agency Clerk Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, FL 32388-0700 Richard A. Doran, Esquire Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, FL 32388-0700
The Issue By agreement of the parties, the issues to be resolved herein are as follows: Whether or not Alachua County denied Petitioner promotion to the position of Drug Counselor II because of her race (black) over her white counterpart. Whether Alachua County denied Petitioner promotion to the position of Victim Advocate Director and revised the position qualifications to preclude Petitioner because of her race (black). If either of these issues were resolved in Petitioner's favor, Alachua County would be guilty of an unfair employment practice pursuant to the Florida Human Rights Act of 1977, as amended [Section 760.10 et seq. F.S.].
Findings Of Fact Petitioner is a black female. She was 41 years of age at the time of formal hearing. Between April 20, 1984 and approximately April 30, 1989, Petitioner was employed by Metamorphosis. Metamorphosis is an organization that was part of the Alachua County Department of Corrections. The Alachua County Department of Corrections was subsequently renamed the Department of Criminal Justice. Petitioner initially was hired as a Drug Counselor I. Metamorphosis' primary goal is to provide long-term, multi-disciplinary treatment and rehabilitation for chronic substance abusers. It accepts only adults with an on-going history of substance abuse with any drug, other than alcohol, as the primary addictive agent. The program's main goal is to help such people become socially functional again. Petitioner initially testified that she had applied for the position of Drug Counselor II on six separate occasions, but testified in detail to only five. Petitioner never received the position of Drug Counselor II. Petitioner professed that she first applied for the Drug Counselor II position in October 1984, approximately six months after she began employment as a Drug Counselor I. However, Petitioner's Alachua County personnel file, which is required to be kept intact for 75 years, does not contain any application by Petitioner for the position of Drug Counselor II in 1984. Petitioner first stated that she was interviewed for the Drug Counselor II position in 1984 by James Whitaker, a white, and Ed Royal, a black. Petitioner later testified that Jim Whitaker and Scott Simmons, a black, interviewed her in 1984. Mr. Simmons did not testify. Mr. Royal did not testify. Mr. Whitaker did not confirm interviewing Petitioner for the Drug Counselor II position in 1984, but he stated that he had participated with Ed Royal in the hiring interview for Petitioner when she was initially hired as a Drug Counselor I from outside the program approximately April 20, 1984. The Drug Counselor II position was filled in 1984 by James Santangelo, a white, who was hired from outside the program to begin work in 1985. Historically, the Drug Counselor II positions within Metamorphosis were the senior therapist positions which required background in community clinical therapy. Petitioner's qualifications for Drug Counselor II as of 1984 were as follows: She received of Bachelor of Science Degree in Criminal Justice from Florida Memorial College in Miami with a minor in Urban Services. She had acted as Vice-president of the Board of Directors for Sexual Abuse Resources Center and was also a public speaker for the Commission on "status of women family violence". At the time Petitioner allegedly applied for the position of Drug Counselor II in 1984, she had been a Drug Counselor I for approximately six months. As Drug Counselor I, Petitioner had counseled individually and in groups, facilitated therapeutic and pre-vocational groups, supervised clients in employment training, vocation, and mock job interviews. She assisted in the intake process and coordinated and provided recreational activities for the clients. She distributed medication to the residents, handled negative attitudes of residents, monitored urinalysis testing, wrote letters to probation officers and judges, kept records, and maintained files for residents, and other work-related duties. Petitioner completed intake interviews, qualified individuals for acceptance or denial into the Metamorphosis Program, supervised and conducted structured groups, trained Drug Counselor Aides for the night shift, signed-off on clients' psycho/social evaluations, and assisted newly hired Drug Counselor II's. James Santangelo, who received the Drug Counselor II position in 1984, had qualifications as follows: Prior to coming to Metamorphosis, he worked for five years in a forensic mental hospital, the North Florida Evaluation and Treatment Center (NFETC). Four of those five years he was a therapist supervisor in a psychiatric unit. He ran therapy groups, scheduled concerns with the staff, held individual sessions with clients, taught adjunctive therapies to the clients, such as stress management, anger management, and drug abuse techniques. Prior to that, he was a school teacher. Santangelo received a Bachelor of Arts with honors from the College of Education at the University of Florida, majoring in psychology. Santangelo also served as an outreach worker for the Alachua County School Board from January through June 1978. In this position he was the first person to contact families whose children were having problems with truancy or whose children were suspected of being victims of child abuse or neglect. He also had an employment history of extensive special skills. Mr. Santangelos's qualifications for the Drug Counselor II position were superior to Petitioner's in 1984, if, indeed, she applied in that year. Petitioner professed that the second time she applied for the Drug Counselor II position was in 1986, when she had approximately two years experience as a Drug Counselor I within the Metamorphosis program. Again, neither Petitioner nor Respondent (by way of Petitioner's personnel file) had any copy of such an application. Petitioner testified that she was interviewed for the position of Drug Counselor II in 1986 by either Jim Whitaker and James Santangelo or by Jim Whitaker and Ed Royal. Neither Whitaker nor Santangelo confirmed that an interview of Petitioner for Drug Counselor II occurred in that year. Ed Royal did not testify, but it was shown that Ed Royal, a black, actually made the appointment of Tootie Richey, a white female, to the Drug Counselor II position which was open in 1986. Ms. Richey was hired from outside the program. Petitioner had "heard" Ms. Ritchey was a licensed clinical social worker but actually had no way of comparing her own qualifications with Ritchey's. Sometime in 1986, the State of Florida had established a means by which persons working with addiction rehabilitation could become "Certified Addiction Professionals" (CAPs) if they had a college degree, or "Certified Addiction Associate Professionals" (CAAPs) if they did not have a college degree. Mr. Whitaker became a CAAP in 1986 and Santangelo became a CAP in 1987. Petitioner never received such certification. In 1987, Metamorphosis was somewhat restructured so that Drug Counselor II positions became supervisory positions in the program. There were then two Drug Counselor II positions. One Drug Counselor II would supervise the Drug Counselor I's and the other Drug Counselor II would supervise the Drug Counselor Aides. Petitioner's first documented application is dated February 2, 1988. She was applying at that time for a position as an Evaluation Rehabilitation Case Worker I, not Drug Counselor II. Petitioner was referred for that position as a qualified candidate, but Edward Woodbury, also black, was selected for that position. In her testimony, Petitioner professed to have applied for Drug Counselor II, Rehabilitative Case Worker, and Program Coordinator by way of "Applicant Update Sheets" filed on June 27, 1988, October 4, 1988 and November 29, 1988. The greater weight of the credible evidence shows that Petitioner's June 27, 1988 application (P-1) was for promotion to be Program Coordinator of the Metamorphosis Program. This document, filled out at that time entirely by Petitioner, asserts that she had previously applied for Rehabilitation Case Worker and Drug Counselor II, but does not state when she applied. At that time, Jim Whitaker, a white, was the Program Coordinator. During the 1987 reorganization, the Program Coordinator position had been changed from clinical duties to administrative duties which Whitaker did not want to do and did not feel capable of handling. Whitaker therefore requested a "downward promotion" from Program Coordinator to some clinical position. Since there was no vacant clinical position (either as Drug Counselor II or otherwise) in the program, the Alachua County Personnel Director, Colleen Hayes, suggested that the position of Program Coordinator be posted as needing to be filled but that the job posting be made only within the Metamorphosis program itself so that only Metamorphosis staff would be allowed to apply. Ms. Hayes further suggested that when the promotional decision was made, Whitaker should be allowed to go into the lower position vacated by whatever Metamorphosis staff member was promoted into the Program Coordinator position currently held by Whitaker. It was understood that Whitaker would suffer no decrease in pay in the lower position of Drug Counselor II. Ms. Hayes' suggestion was followed, and ultimately, James Santangelo, then a Drug Counselor II, was selected to replace Whitaker as Program Coordinator. Whitaker exercised his option to take Santangelo's vacated Drug Counselor II position. Contrary to Petitioner's testimony, Santangelo's Drug Counselor II position was never advertised nor open to competitive interviewing at that time, and therefore there was no Drug Counselor II position vacant for which Petitioner could have applied. However, Mr. Whitaker's qualifications for the Drug Counselor II position were clearly superior to Petitioner's, anyway. At the time of Whitaker's "downward promotion," Whitaker's qualifications (for Drug Counselor II) included 15 years of experience on the Metamorphosis staff, beginning on October 14, 1974, as an entry level Drug Counselor I on night shift for one and a half years. He had served on the day shift for one year and then been promoted to Drug Counselor II where he had served until 1976. He had life experience as a drug abuser, including 13 months of Metamorphosis residential care for drug abuse, which was and is considered very valuable in a drug addiction counselor. He also had, over time, worked every shift, every level of group with every client from clients #86 to #1100 sequentially, and with every staff person in Metamorphosis to that date. Whitaker also had been Program Coordinator from 1978 to 1988. At the time of Whitaker's "downward promotion," Santangelo's qualifications for Program Coordinator included all of those set out supra in Finding of Fact 11, plus approximately two years as a Drug Counselor II. By the time of Whitaker's "downward promotion", both Whitaker and Santangelo had been state certified through examination. (See Finding of Fact 15). At the time of Whitaker's "downward promotion", Petitioner had the same qualifications set out supra in Finding of Fact 10, plus an additional two years as a Drug Counselor I. She was not state certified as an addiction professional. By comparison, James Santangelo's qualifications for the Metamorphosis Program Coordinator position were clearly superior to those of Petitioner. Also, the record reflects no persuasive evidence that Respondent's downward transfer process, which on this occasion accommodated Mr. Whitaker, was contrary to, or unique within, the standard operating procedure of the Respondent's personnel department. There likewise is no persuasive evidence that the downward transfer process required the promotion of a Drug Counselor II (Santangelo) over a Drug Counselor I (Petitioner) into the Metamorphosis Program Coordinator position, so as to be "rigged" to prohibit Petitioner, as a minority employee, from being promoted. The greater weight of the credible evidence shows that Petitioner next applied for a Drug Counselor II position on October 4, 1988 (P-2). That document, made out solely by Petitioner, asserts she previously applied for Drug Counselor II and Program Coordinator without stating any dates. Lennard Perry, a black, who was seeking a downward transfer from Evaluation and Rehabilitation Case Worker I was ultimately hired for the Drug Counselor II position, but he was hired on a competitive basis. Petitioner's November 29, 1988 "Applicant Update Sheet" (P-3), again made out solely by herself, asserts she had previously applied for the Drug Counselor II position in September 1988. There is no documentary evidence of any kind of September 1988 application by Petitioner. Petitioner herself testified that the Drug Counselor II position was unfunded after her first 1988 application and then stated it was unfunded after her third 1988 application. This confusion may account for her saying at one point that she had applied for Drug Counselor II six times. However, Respondent's witnesses were credible and persuasive that the Drug Counselor II position was phased out after Petitioner last applied due to lack of funding and further reorganization. In making the foregoing findings of fact, the undersigned has rejected the testimony of Petitioner and Warren A. McCluney that a white man named Alan Pappas ever filled the Drug Counselor II position after any of Petitioner's 1988 applications. Their unsupported testimony on this issue is not probative that Alan Pappas was ever employed full-time and paid by Metamorphosis, even though Mr. McCluney stated that he saw Mr. Pappas receive a paycheck at the same time Mr. McCluney himself did. Mr. McCluney did not specify that the check Pappas allegedly received was a Metamorphosis or county check. He also testified that Mr. Pappas was only present at Metamorphosis for nine months during 1987, and that period bears no relationship to Petitioner's not being promoted in 1988. Other witnesses clearly testified that Mr. Pappas never worked for Metamorphosis in any capacity at any time. There is no evidence or pleading of record to support Petitioner's allegations that she filed any formal discrimination claim before 1988. The position of Victim Advocate Director was advertised by posting of the job description from February 13 to February 17, 1989. Petitioner applied for the position on February 16, 1989. Respondent received so few applicants in response to the February 1989 Victim Advocate Director job posting that the Respondent's Personnel Director feared the hiring procedure would be compromised. No one was hired for the Victim Advocate Director at that time. The dearth of applicants was believed to be the direct result of the low number of Victim Advocate Programs statewide so that, in turn, few people could meet the job position requirement of a minimum of one year's supervisory experience in a Victim Advocacy Program. It was ultimately decided to rewrite the minimum qualifications and re-advertise. At no time material did Petitioner have one year's supervisory experience in a Victim Advocacy Program. The only pertinent revision of the minimum position qualifications was that one year of supervisory experience in any related area was acceptable the second time the Victim Advocate Director position was advertised. The second time the Victim Advocate Director position was advertised, an applicant's supervisory experience did not have to be specifically in a Victim Advocate program. The job position revision was reviewed by Ida Rawls-Robinson, the Director of the Alachua County Equal Opportunity Office prior to publishing it. Ms. Rawls-Robinson, a black, approved the amended requirements because the amendment broadened the base of the pool of qualified people, thus inferentially making the position more accessible to minorities. Before the second job-posting, Petitioner received a letter dated April 14, 1989 from Personnel Director, Colleen Hayes, advising Petitioner that the job criteria for the position of Victim Advocate Director had been revised. In Colleen Hayes' April 14, 1989 letter, Petitioner was asked to complete the enclosed application update sheet if she felt she was still qualified after the revision of the minimum qualifications, but she did not do so. Instead, Petitioner forwarded a memorandum to Colleen Hayes to the effect that since her original application was less than six months old, Petitioner would not submit an application update in response to the revised job description, although she remained interested in the position. The second job-posting with the broadened minimum qualifications was posted from April 17 to April 29, 1989. Petitioner was not referred for the position of Victim Advocate Director because she did not have the minimum one year supervisory experience in the revised category either. The requirements had always required one year of supervisory experience in any event. The position of Victim Advocate Director was never actually filled by Respondent. It was ultimately moved to, and funded by, the State Attorney's Office.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Human Relations Commission enters a final order dismissing the petition for relief filed herein. DONE and ENTERED this 24th day of July, 1992, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of July, 1992. APPENDIX TO RECOMMENDED ORDER The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF: 1 Covered under preliminary matters 2-5, 7-8, 17-18, 20-21 23-26, 29-39 Accepted 6, 9, 15-16, 19, 27-28 Accepted in substance but modified to more accurately reflect the record as a whole, to eliminate hearsay, and to describe and resolve the issues as raised by Petitioner. 22 Rejected as stated. Petitioner initially testified to this. Later, she professed that the budget cuts occurred after the third application. The RO reflects all reconciled, competent, credible evidence. Respondent's PFOF: Respondent waived filing posthearing proposals. COPIES FURNISHED: Bruce W. Smith, Esquire Post Office Box 450 Gainesville, Florida 32602 Mary Marshall, Esquire Alachua County Attorney's Office Post Office Box 2877 Gainesville, Florida 32602-2877 Margaret A. Jones, Clerk Commission on Human Relations 325 John Knox Road Building F Suite 240 Tallahassee, Florida 32303-4113 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road Building F Suite 240 Tallahassee, Florida 32303-4113
The Issue The issues presented for resolution in the two consolidated cases are whether Rule 10E-16.004 (27), Florida Administrative Code, is an invalid exercise of delegated legislative authority, and whether Petitioner violated that rule on a specified occasion and is subject to fine or other penalty.
Findings Of Fact Petitioner, Associated Counselling and Education, Inc., doing business as Substance Abuse Family Education (SAFE), is a Florida corporation doing business in Orange County, Florida. SAFE provides substance abuse treatment to adolescents, mostly within the ages of twelve (12) to eighteen (18) years, with a few young adults who have turned nineteen while in treatment. The Department of Health and Rehabilitative Services (HRS) is the state agency with statutory authority to license and regulate certain treatment programs, including SAFE. At all times material to this proceeding HRS has licensed SAFE to provide substance abuse treatment services in a category titled "non-residential day and night treatment with a host home component." SAFE is not licensed as a secure facility or an addictions receiving facility. SAFE uses a program similar to the Alcoholic Anonymous twelve-step program as a tool for rehabilitating drug abusing juveniles. The program includes five phases through which the clients progress at varying rates. The "first phase" describes clients who are new to the program. As clients progress they enter into stages of increasing responsibility and freedom, until they are able to graduate and return to the everyday world. The program requires that the youths' parents or legal guardians admit them into treatment, even when children are referred by a court, by HRS or another source. The program requires rigorous participation by the parents and any siblings of the client. SAFE's contract for treatment includes a voluntary withdrawal provision which requires that the client request withdrawal through a "chain of command." The purpose of the deliberate, several-step process is to avoid withdrawal on an impulsive or transitory whim of the client. SAFE's rules, including the withdrawal provision, are explained to the client at the beginning of treatment and are reviewed daily with the clients. Clients who are just starting in the program, "first phasers," spend their days at the program and are placed at night with host parents, generally parents with experience in the program through their own children's participation. Staff and host parents are trained in crisis intervention and aggression control techniques through an HRS sanctioned training program. The techniques are progressive; they range from verbal intervention, to putting an arm around a client's shoulder, to physically forcing a client to the floor when the client has threatened to injure himself or others. SAFE contends that when a client attempts to leave treatment without going through the withdrawal process and without involving the parents or guardians in the process, the client is in serious danger of injuring himself or others immediately following departure from the program. SAFE uses physical intervention as a last resort to prevent clients from leaving the program without going through the "chain of command." At night, however, such intervention is used by host parents only to restrain dangerously aggressive behavior. SAFE instructs its host parents to not physically stop a child from leaving the host home. S. B. was a "first phaser" in SAFE's program in August 1993. During dinner one evening he had been staring or glaring at other clients and acting in a provoking and disruptive manner. After dinner, during an organized "rap" session, several clients were called on to confront S. B.'s behavior. He reacted by throwing a chair, across several rows of clients, at the client who was confronting him. Then he bolted, or attempted to bolt, from the room through the exit door. He was restrained by staff, was calmed, and he returned to his seat. Very shortly after he returned to his seat S. B. began staring or glaring at a client by the exit door. He jumped up and ran for the door. Again, he was physically restrained as he kicked, fought and yelled with anger. Staff person Pamela Mardis was one of the persons who participated in the restraint of S. B. on August 27, 1993. She considered the client to be in harm's way if he were permitted to leave the program without the assurance of proper safeguard for his well-being and safety. The January 12, 1994 amended notice of violation provided by HRS to Loretta Parrish, SAFE's owner and executive director, states, in pertinent part: As an amended complaint, the following incidents have been found to be in violation of 10E-16, F.A.C., requirements and are therefore subject to administrative fines: * * * August 27, 1993, 5:20 p.m., (report written August 27, 1993, 6:45 p.m.) in which a client was restrained in an effort to keep the client from leaving treatment, your agency will be fined $100 for non-compliance with 10E-16.004 (27)(a), F.A.C., requirements. (Petitioner's exhibit no. 6) HRS interprets its rule to prohibit restraint when the perceived danger to the client is in leaving and getting back on drugs. SAFE contends that to let one client leave voluntarily without going through the withdrawal procedures would mean that all of the clients, adolescents with poor decision-making skills, would walk out. There is a program in Palm Beach County, Florida, purportedly similar to SAFE, called Growing Together, Inc. On January 22, 1994, HRS and Growing Together, Inc., entered into a stipulated Final Declaratory Judgement in case no. CL93-9599-AO, in the Circuit Court of the Fifteenth Judicial Circuit, in and for Palm Beach County, Florida, which provided, in pertinent part: In the absence of a Court Order restricting the rights of a parent or legal guardian to control decisions affecting the health and welfare of a minor, Growing Together, Inc., may act upon the request of a parent or legal guardian in accepting a minor client for substance abuse treatment regardless of the minor's objections. In the absence of a Court Order limiting the authority of a parent or legal guardian to control decisions affecting the health and welfare of a minor, Growing Together, Inc., may reasonably restrict minor clients from terminating their participation in treatment contrary to the express direction of a parent or legal guardian. So long as the minor's rights to challenge the reasonableness of restrictions imposed at the express direction of a parent or legal guardian are protected -- that is, so long as the minor is informed of his or her rights and is provided a practical means by which to exercise those rights -- Growing Together, Inc., may continue to act in loco parent) in declining to release a minor from treatment where such release is against the will of a parent or legal guardian and no court order has been issued to direct otherwise. The State of Florida, Department of Health and Rehabilitative Services is hereby prohibited from taking any action contrary to the legal principles enunciated herein and is expressly prohibited from enforcing any interpretation of F.S. Section 397.601 which interpretation is contrary to the findings of this Judgement. (Petitioner's exhibit no. 7)
