Findings Of Fact Background Petitioner was founded by Mr. Art Barker in 1970 and has been operated since that time as a private, non-profit entity. Petitioner receives no funds from any unit of government and is a valuable asset in the field of drug abuse treatment and prevention. Petitioner enjoys a good reputation in the community it serves and has demonstrated its ability to help people with substance abuse problems. Approximately 7,000 people have gone through Petitioner's drug abuse program with a success rate in excess of 90 percent. Petitioner was an innovator in the development of the type of drug abuse programs administered by it. The drug abuse program administered by Petitioner has been emulated by approximately 12 other programs in the state. There are not enough programs of this type to satisfy the needs of individuals in the state. Respondent first began licensing drug abuse programs in February, 1972. Petitioner has been continuously licensed by Respondent as a drug abuse program. Petitioner is authorized under License Number 10A-38 to provide "day care with host component." The licensed address for Petitioner is 919 East Broward Boulevard, Fort Lauderdale, Florida, 33301. Petitioner's license must be renewed annually. Applicable administrative rules require licensees to operate drug abuse programs under the supervision of a "qualified supervisor." Prior to September, 1986, a qualified supervisor was defined as an individual who, by "training or experience" was responsible for providing clinical guidance to counselors. 3/ In September, 1986, the ability of an individual to qualify as a qualified supervisor based solely upon his or her work experience was deleted. Since September, 1986, an individual who wished to satisfy the requirements of a qualified supervisor was required to either satisfy minimum educational requirements or become certified by the Certification Board of Addiction Professionals of Florida, or by a substantially equivalent certification process ("certified addiction professionals" or "CAP designation"). Petitioner demonstrated its good faith effort to comply with Respondent's rules. Respondent's licensing agent advised Petitioner in 1987 that Petitioner would be in compliance with the new requirements for qualified supervisors as long as staff personnel placed their full name and title next to the comments on the client's records. That procedure was followed by staff personnel during the license years for 1987-1988 and 1988-1989. Petitioner's license was renewed during those years with no question from Respondent concerning the credentials of Petitioner's qualified supervisors. During the same license years, Petitioner's personnel were led to believe by Respondent's licensing agent and reasonably did believe that they were in full compliance with Respondent's rules. Petitioner relocated in 1987 and purchased a building rather than leasing one. The decision to purchase the building at the new location was made, in part, in reliance upon Respondent's representation and Petitioner's belief that Petitioner was in compliance with applicable rules regarding qualified supervisors. Respondent refused to issue a regular annual license to Petitioner for the 1989-1990 license year for the sole reason that Petitioner did not have a qualified supervisor. 4/ Respondent specifically determined that neither Mr. Art Barker nor Ms. Lybbi Kienzle satisfy the educational or certification requirements for qualified supervisors. 5/ It is uncontroverted that Mr. Art Barker and Ms. Lybbi Kienzle are each competent to perform the duties of a qualified supervisor. Respondent determined that each individual is competent to perform the duties of a qualified supervisor and so stipulated in the joint prehearing stipulation filed in this proceeding. Respondent did not follow its own rule in rejecting Petitioner's request for a deviation. Respondent's current written policy was adopted as a rule after Petitioner's request for a deviation but prior to the formal hearing. Under Respondent's current rule, each district office must make a recommendation concerning each request for deviation made to the district office. The request for deviation and the district office recommendation is then considered by the licensure rules committee. The licensure rules committee then recommends action to appropriate department personnel who may either accept or reject the committee's recommendation. The approval of any request for deviation automatically ends at the time of the expiration date of the regular license. At the time of Petitioner's request for deviation, Respondent was in the process of developing its current written policy. Deviation requests and district office recommendations were considered at the time by an ad hoc committee of anywhere from three to seven people, depending upon who was available. The occurrence of such a meeting, the number of people, and the identity of the committee members was determined by "catch-as- you-can." A licensure rules committee was not officially formed until some time after Petitioner's request for deviation. Petitioner's request for deviation and the recommendation of the district office was not considered by any committee. The district office recommended that Petitioner's request for a deviation be granted. Approval of the request for deviation was recommended by the district office subject to the conditions that the deviation be limited to one year, that Petitioner submit a new request for deviation prior to its annual licensing date, and that the competency of Mr. Barker and Ms. Kienzle to perform the duties of qualified supervisors be documented by their respective resumes. Documentation in the form of resumes was not a significant concern to Respondent and was merely ministerial. The recommendation for approval of the request for deviation was made by employees of the Respondent who have personal knowledge of the experience and competency of Mr. Barker and Ms. Kienzle. It is uncontroverted that Mr. Barker and Ms. Kienzle are competent to perform the duties of a qualified supervisor. The district office, however, did recommend that either Mr. Barker or someone on his staff pursue CAP designation. The recommendation of the district office was overruled by Dr. Iver Groves, Ph.D., Assistant Secretary for Alcohol, Drug Abuse and Mental Health. The request for deviation was rejected on the grounds that Mr. Barker's honorary degree did not satisfy the educational requirements for a qualified supervisor. Dr. Groves determined that deviation from the educational requirements for a qualified supervisor cannot be granted under any circumstances. Dr. Groves suggested that Mr. Barker and Ms. Kienzle comply with the requirements for CAP designation or formal education. Dr. Groves has no personal knowledge of the experience and competency of either Mr. Barker or Ms. Kienzle to perform the duties of a qualified supervisor. Dr. Groves first became involved in this proceeding when a draft of a letter embodying the recommendation of the district office was presented to Dr. Groves for his signature. Dr. Groves spent an ". . . hour [or] maybe two hours . . ." considering Petitioner's request for deviation. Dr. Groves never saw the recommendation of the district office, was unaware that anyone in the district office recommended approval of the deviation, and did not consider the recommendation of the district office in making his determination to reject Petitioner's request for deviation. Dr. Groves never compared the requirements for a deviation in the applicable administrative rule to Petitioner's request for deviation. Dr. Groves rejected Petitioner's request for deviation based upon his concern over the establishment of a precedent for other programs in the state. Dr. Groves primary concern was whether it was appropriate to waive a ". . . fundamental standard in the rule that would have ramifications for the practice of the treatment of addiction across the State of Florida." It is uncontroverted, however, that there are no other programs in the state that are comparable to that administered by Petitioner. The experience and competency of Mr. Barker and Ms. Kienzle to perform the duties of a qualified supervisor satisfies the purposes of the educational requirements for qualified supervisors. As Dr. Groves stated during his testimony at the formal hearing, the purpose of imposing educational requirements on qualified supervisors is to give Respondent ". . . some assurance of the capability and competence of people within the program . . ." and to insure that ". . . somebody associated with that program . . . has been through a certain organized set of experiences and has been judged to be qualified." Transcript at 111. Grounds For Deviation Neither Mr. Barker nor Ms. Kienzle satisfy either the educational or certification requirements for qualified supervisors. Neither individual has the requisite education and neither has been certified by the Certification Board of Addiction Professionals of Florida, or by a substantially equivalent certification process. The honorary degree received by Mr. Barker from Fort Lauderdale University does not satisfy the educational requirements for a qualified supervisor. Mr. Barker was awarded "The Honorary Degree of Doctor of Social Science" in June, 1972, by Fort Lauderdale University. Fort Lauderdale University was accredited at the time the honorary degree was awarded. The citation attached to the honorary degree states in relevant part that the degree was awarded to: . . . the outstanding drug rehabilitation expert in the United States [who] saved 1,500 young men and women from a life in prison or mental hospital or a premature death from a drug overdose. . . . The ninety per cent success rate of The Seed is a tribute to your genius. Neither Mr. Barker nor Ms. Kienzle satisfy the educational requirements for becoming certified by the Certification Board of Addiction Professionals of Florida, or by a substantially equivalent certification process. Applicants for CAP designation must hold a minimum of an Associates Arts degree from a college or university. The degree requirement became effective on January 1, 1991, and it was impossible for either Mr. Barker or Ms. Kienzle to satisfy the educational requirements prior to the formal hearing. Requiring Mr. Barker and Ms. Kienzle to satisfy the educational requirements for a qualified supervisor would interfere with the efficient operation of Petitioner. The time and energy needed to obtain the academic credits would impose an unnecessary hardship on each of them and detract from the time and energy they could devote to the drug abuse program administered by Petitioner. Requiring Petitioner to hire a certified addiction professional would interfere with Petitioner's efficient operation. Petitioner has a positive net worth and can pay for such services. In recent years, however, Petitioner has experienced operating deficits. The amount of funds received as donations and pledges has been less than annual operating expenses. Expenses incurred by Petitioner to hire one or more additional personnel who have obtained the CAP designation would increase Petitioner's operating deficit and further erode Petitioner's remaining net worth. Supervision of either Mr. Barker or Ms. Kienzle by a certified addiction professional would be superfluous and would interfere with Petitioner's efficient operation. Neither Mr. Barker nor Ms. Kienzle need to be supervised by one or more individuals who have obtained the CAP designation in order to perform the duties of a qualified supervisor. It is uncontroverted that Mr. Barker and Ms. Kienzle are competent to perform such duties. Deviation from the educational requirements for qualified supervisors for Mr. Barker and Ms. Kienzle will not jeopardize the health and safety of clients in the program administered by Petitioner, will not abridge the rights of those clients, and will not diminish the level of quality of client care. Mr. Barker is competent to provide clinical guidance to counselors, approve and reassess treatment plans, supervise psychosocial assessment services, and supervise treatment services for Petitioner. Mr. Barker has focused his time continuously and exclusively on running the drug abuse program for Petitioner. Ms. Kienzle graduated from Petitioner's drug abuse program in 1971 and has been employed continuously and exclusively by Petitioner as a counselor and supervisor. A master's degree in a social or behavioral science does not assure competency to perform the duties of a qualified supervisor in a drug abuse program. Respondent's rule does not require the field of academic study to be related to the duties that must be performed by a qualified supervisor. As Dr. Groves stated in his testimony during the formal hearing, the requirement for a master's degree in a social or behavioral science is satisfied by a master's degree in history or English. For the same reason, the requirement of an Associate Arts degree for a CAP designation does not assure competency to perform the duties of a qualified supervisor for a drug abuse program.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner should be granted a regular license for one year and the requested deviation. The deviation should automatically end at the time of the expiration date of the regular license or at such time as Petitioner's regular license is revoked, suspended, or otherwise terminated. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 23rd day of October 1991. DANIEL MANRY 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 23rd day of October 1991.
Findings Of Fact Answers on the Application Amer Alanbari, M.D., applied to the Board of Medicine for licensure as a physician by endorsement on February 19, 1992. The application form he filled out and submitted asks two questions on page 4 under no. 8: "Are you now or have you ever been emotionally/mentally ill?" and "Have you ever received psychotherapy?" To both questions, Dr. Alanbari answered "No." Under "POSTGRADUATE TRAINING," Dr. Alanbari listed "[f]rom 7/1/88 to 6/30/89: No training." The application form also asked, "Have you ever had to discontinue practice for any reason for a period of one month or longer?" To this question, Dr. Alanbari answered "No." Events Prior to the Application Amer Alanbari, M.D., naturalized in Newark, New Jersey, as a citizen of the United States on August 29, 1989, was born in Damascus, Syria in 1958. He received his medical degree in the same city on September 7, 1982, from the University of Damascus. Within a month he began specialty training in pulmonary diseases at the University of Nancy, Centre Hospitalier Regional de Nancy, in Nancy, France. His attendance in the program in France was from October 1, 1982 until July 30, 1984, From August 1984 until November 1986 he resided in Prospect Park, New Jersey, where he has family, a time during which he received no medical training. For the next year and one-half, approximately, from December 1, 1986, until June 30, 1988, Dr. Alanbari enjoyed an Internship in Internal Medicine at The University of Toronto, The Toronto Western Hospital in Toronto, Ontario, Canada. He completed training in Core Internal Medicine on June 30, 1988, and left the program in good standing. Sometime shortly before completing the training in Internal Medicine in Toronto, Dr. Alanbari suffered a crisis brought on by serious family and financial problems following the death of his father. The chief resident at The Toronto Western Hospital arranged for Dr. Alanbari to see a psychiatrist. The psychiatrist's diagnosis of Dr. Alanbari's condition was "depression"; an anti-depressant medication was prescribed. Dr. Alanbari took the medication for three weeks. After the three weeks, not convinced that he was suffering from depression and having received some training in psychiatry, himself, Dr. Alanbari ceased the medication. He has not seen a psychiatrist since. Upon leaving Toronto, Dr. Alanbari returned to Prospect Park, New Jersey. On November 18, 1989, Dr. Alanbari entered the Internal Medicine Program at the Department of Veterans Affairs Medical Center in Wilkes-Barre, Pennsylvania. He entered the program as a first year medical resident even though he had completed a first year residency earlier because, for whatever reason, he was unable to obtain a second year residency. Dr. Alanbari was not given an official letter from the VA facility informing him of the status of his training because it was an unusual time of the year to begin training. He was told by the VA Medical Center that he could remain until June and then his status would be determined. Dr. Alanbari, however, did not remain at the facility until June. He left the Medical Center on April 18, 1989, under the affectation that his ulcer had begun bleeding. Although Dr. Alanbari had an ulcer at the time, it was, in fact, not bleeding. In truth, Dr. Alanbari left the program because of difficulties in an engagement to be married. Dr. Alanbari did not reveal the true nature of the basis of his departure from the Wilkes-Barre VA facility because the issue of difficulties in his personal relationship with his fiancee was sensitive to him at least, in part, because of the Syrian culture in which he was raised. Moreover, he did not want to suffer a suggestion from supervisory medical personnel at the VA facility, as had been made earlier at the Toronto facility, that he see a psychiatrist again. He resisted such a suggestion because he felt he was capable of solving the problem himself. Dr. Alanbari's fiancee, a Syrian woman residing in New York, wanted to return to Syria while Dr. Alanbari was intent on conducting the practice of medicine in the United States. Forced to choose between his fiancee and his career, a decision with at least the potential for affecting the remainder of his life, Dr. Alanbari returned to Prospect Park, New Jersey, in order to make a decision free of the pressures of residency and the practice of medicine. For several months, Dr. Alanbari lived with family in New Jersey. In July of 1989, less than three months after leaving the Wilkes-Barre VA facility, Dr. Alanbari moved to New York and entered a first-year residency for the third time, again in Internal Medicine, but this time at the Methodist Hospital at 506 Sixth Street in Brooklyn, New York. At the time Dr. Alanbari submitted his application in February of 1992, he had completed the first two years of his residency at the Methodist Hospital in Brooklyn and was in the second half of his third year of residency in internal medicine. Events after the application's submission During the processing of Dr. Alanbari's application, the Board received a profile from the American Medical Association revealing the training Petitioner received at the Wilkes-Barre VA hospital. The contradiction between the profile and Dr. Alanbari's application led the Board to inquire further. On May 24, 1992, two months after the filing of the application, Dr. Alanbari appeared in the office of the Board to discuss problems with his application. The visit was followed by letters from Dr. Alanbari to the Board less than one month later. Although copies of the letters were stricken from the record, Dr. Alanbari testified at hearing that he informed the board by letter of the crisis he had suffered following his father's death shortly before leaving Toronto, the single visit to a psychiatrist at the suggestion of the Chief Resident, the psychiatrist's diagnosis of depression and the prescription of the anti-depressant. Dr. Alanbari answered "No," to the question on the application as to whether he had ever been emotionally or mentally ill because he was not convinced that he suffered from depression, was hesitant to reveal matters that were private and was not sure he could obtain a report from the psychiatrist because of his limited treatment. Dr. Alanbari also related to the Board in the same letter that he had started training at the Wilkes-Barre VA facility in December of 1988 but left in April of 1989 because of serious problems in his marital engagement. In November of 1992, Dr. Alanbari appeared before the Board's Credentials Committee. The meeting's minutes relate: After receiving testimony, it was determined that Dr. Alanbari has been less than truthful not only during the application process, but during his medical training and the independent psychiatric evaluation which was arranged through PRN. Dr. Alanbari stated that he was very hesitant to give details about his personal problems because he feels it is a matter of privacy. The minutes go on to reflect that Dr. Goetz of the Physicians Recovery Network recommended that Dr. Alanbari undergo a five-day inpatient evaluation through the Physicians Recovery Network. After a discussion with Dr. Goetz outside the Committee's meeting room, the minutes report, "Dr. Alanbari stated that he is agreeable to undergoing the five-day evaluation through PRN as suggested by Dr. Goetz." Motion was made, seconded and carried unanimously to retain jurisdiction until no later than the March, 1993, meeting to allow Dr. Alanbari to undergo evaluation through PRN and to complete a new, complete and accurate application. The Credentials Committee reconvened on March 19, 1993. Minutes of this second meeting show that, On March 10, 1993, a letter was received from Dr. Alanbari stating that he could not afford the cost of the PRN evaluation. Motion was made, seconded and carried unanimously to recommend denial of application based on his testimony at the November, 1992 Committee meeting, attempting to obtain a license by fraud and misrepresentation, failure to comply with the Board's request that he undergo five-day inpatient evaluation through PRN and failure to submit a new, complete and accurate application. The minutes also show, apparently, that an inde- pendent evaluation, an evaluation other than the five-day inpatient evaluation the board had requested Dr. Alanbari to undergo, had been conducted of Dr. Alanbari. Dr. Goetz of the Physicians Recovery Network opined to the board that "he felt Dr. Alanbari had not been forthright during the independent evaluation . . ." Dr. Goetz did not testify at the hearing. There was, therefore, no foundation laid for the opinion; nor, was it elaborated upon or explained by Dr. Goetz. No evidence was introduced as to who conducted the evaluation, of what it consisted or anything else about it. On November 4, 1993 the Order of the Board denying Dr. Alanbari's application was rendered. There is nothing of record to indicate what, if anything, relevant to this case transpired during the eight month period between the March meeting of the Credentials Committee and the Board's order. In the order's statement of grounds for the denial is the following, "Your mental condition interferes with your ability to practice medicine with skill and safety." Although nothing was produced by the Board at hearing to show what happened between March of 1993 and November of 1993, the minutes of the Credentials Committee contain the grounds found by the committee in support of a recommendation to the Board that the application be denied. Dr. Alanbari's "mental condition" as "interference with his ability to practice medicine" was not among the Credential Committee's grounds supporting the recommendation to the Board formulated in March of 1993. The hearing. Following Dr. Alanbari's explanation at hearing of the reasons for filling out his application as he had, the Board presented no witnesses to support its action in entering the denial order. The remainder of the Board's case was comprised of four exhibits: (1) Dr. Alanbari's application; (2) A letter from Robert A. Bear, M.D., stating that Dr. Alanbari left the program at the University of Toronto "in good standing. He did not break a contract. He was not offered a contract to continue training"; (3) the Credential Committee's minutes from its November 1992 meeting, and; (4) the Credential Committee's minutes from its March 1993 meeting. Aside from the four exhibits, the Board's case for denial rests on the "admission" under oath by Dr. Alanbari that his replies on the application were false, an "admission" made by an unrepresented applicant under withering cross- examination by substitute counsel for the board: Q . . . First of all, I want to establish, is it not true that you stated on your application to the Board of Medicine that you have never had any mental illness or been treated with any psychotherapy? A Yes, it was true, and that's why -- Q Doctor, however, isn't it also true that, in fact, you were seen by a psychiatrist and given medication? A Only once and I gave all the details, that's why I made my trip from New Jersey to meet with higher authorities to explain that special situation. It's my privacey [sic]. Q Doctor, that was after you said no, isn't that correct? A Yes. Q You keep talking about privacy here. Do you believe that you have a right to give a false answer on your application because you believe it to be a private matter. A It was delicate situation, I tried to deal with it with honesty, that's why I made my trip to Florida. I wanted to speak to someone. Q Doctor, was your answer on the application honest? A Yes. Q When you said no on the application, was that an honest answer? A If you asked me if any question on the application was honest, yes. Q No, I asked you if your answer on the application was honest, your answer to the question about psychotherapy and you said no. A The honest question, I don't know. Not yes, not no. Q But you answered no, didn't you, Doctor? A It was a very delicate situation and I presented the events as they happened and I left it to you to appreciate -- Q Doctor, did you submit such an explanation with your application when you said no? A No. Q You didn't, did you? A No. Q Now, did you honestly answer that question as to whether or not you had psychotherapy? A Initially, I said no, but -- Q Is that an honest answer, Doctor? A No, its not. Q Thank you. Do you believe, Doctor, that you have a right to tell a lie about something just because you consider it to be private? A I don't believe in telling lies. Q But you did, Doctor, didn't you? A I initially wrote down this, but again, the issue was very delicate, there was no good answer to this. Not a yes, not a no. Q Doctor, the truthful answer to that question was yes, wasn't it? A No. Q Doctor, did you receive psychotherapy? A No, sir. (Tr. 40-43, emphasis supplied). At hearing, Dr. Alanbari was also asked in light of the fact that he had discontinued the practice of medicine for more than a month on several questions why he had answered "no," to the question on the application, "Have you ever had to discontinue practice for any reason for a period of one month or longer?" (emphasis supplied). From his testimony, it was apparent that Dr. Alanbari believed "no" to be a correct answer because although he had ceased to practice medicine for more than a month on several occasions after graduation, he had never been forced by a licensing authority or anyone else to cease practicing medicine. Whenever he had lapses in practice of more than a month they were always by choice. He, therefore, had never had to discontinue practice, the precise question posed by the application. Dr. Alanbari's testimony on this subject squares with the remainder of his application from which it is obvious that he informed the board from the moment he first applied that he had not practiced for several periods of more than one month's duration subsequent to his graduation from medical school. This included a period from August of 1984 until November of 1986 and the time that he did not practice between July of 1988 and June of 1989 that preceded and followed his practice at the VA Medical Center.
Recommendation It is, accordingly, RECOMMENDED: That Dr. Alanbari be requested to submit additional information to the Board; and, That Dr. Alanbari's application be denied if he does not submit such additional information within 30 days of the request. If the Board does not choose to request additional information to clarify Dr. Alanbari's application then Dr. Alanbari should be certified by the Board to the Department for licensure by endorsement. DONE AND ENTERED this 21st day of September, 1994, in Tallahassee, Florida. DAVID M. MALONEY 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 21st day of September, 1994. APPENDIX Petitioner did not submit a proposed recommended order. Respondent's proposed findings of fact Nos. 1, 2, 3, 5, 7, 8 have been adopted, in substance, insofar as material. With respect to Respondent's proposed finding of fact No. 4, it was the Board which framed the issues of the hearing in its denial order. Dr. Alanbari adopted those issues. In all other respects the finding is accepted. With respect to Respondent's proposed finding of fact No. 6, Petitioner's representation was not fraudulent. With respect to Respondent's proposed finding of fact No. 9, the representation was not fraudulent. With respect to Respondent's proposed finding of fact No. 10, the first sentence of the finding is accepted. The remainder of the finding is rejected. Although counsel stated at hearing that correspondence had been sent to Petitioner inquiring about the Wilkes-Barre program, there was no evidence presented of such correspondence. Nor was there evidence that Petitioner's participation in the program was anything other than temporary. His assertion, therefore, was not false. With respect to Respondent's finding of fact No. 11, the finding is accepted. The finding is relevant only to Petitioner's credibility. As explained in the body of the Recommended Order, under Petitioner's legitimate interpretation of the question, his answer was not false. COPIES FURNISHED: Amer Alanbari, M.D. 51 Layton Road Sussex, NJ 07461 Gregory A. Chaires, Esquire Allen R. Grossman, Esquire Assistant Attorneys General PL-01, The Capitol Tallahassee, Florida 32399-1050 Marm Harris, Executive Director Board of Medicine Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack McRay Acting General Counsel Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792
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 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. Staffperson 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 parenti 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) CONCLUSIONS OF LAW The Division of Administrative Hearings has jurisdiction in this matter pursuant to Sections 120.56 and 120.57, Florida Statutes. The two cases consolidated above present two separate issues which must be addressed in separate orders, as one issue (the validity of Rule 10E- 16.004(27), Florida Administrative Code) is determined by the Hearing Officer, and the other issue (whether SAFE violated the rule) is determined by the agency upon a recommended order by the Hearing Officer. Notwithstanding the parties' earnest desire to obtain a resolution of the issue of when a program like SAFE can use physical restraint to prevent withdrawal, the Hearing Officer has no authority to issue a "declaratory statement." That function, addressed in Section 120.565, Florida Statutes, is reserved to the agency. Rule 10E-16.004(6)(a), [Florida Administrative Code], provides that "[t]he department shall impose a penalty of no more than $100 per day against a licensed program that commits a [significant violation pertaining to the health and safety of the clients.] ..." [emphasis added] Rule 10E-16.004(27)(a), Florida Administrative Code, provides: (27) Aggression Control Techniques. Programs which use verbal, psychological and physical intervention methods for managing client behavior shall be required to implement the procedures established under HRS Regulation Number 205-1 regarding the use of Aggression Control Techniques (ACT), or other techniques, as approved by the department. (a) Justification and Documentation of Use. In the event that physical intervention is used to restrict a client's movement, clinical justification shall be documented in the client record, and a complete, detailed report of the incident shall be maintained as part of the program's administrative records and reported to the department's district administrator. Physical intervention techniques shall be employed by trained adult staff to prevent a client from injuring himself or others, or to prevent serious disruption of the therapeutic environment. HRS contends that SAFE violated Rule 10E-16.004(27)(a), Florida Administrative Code, when the program restrained its minor client, S. B., from attempting to bolt without going through the "chain of command" described in SAFE's voluntary withdrawal procedures. HRS has the burden of proving the alleged violation. Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977) HRS does not claim that the techniques used on S. B. were by other than trained adult staff or that the required reports were not made to the agency and properly maintained by the program. Rather, HRS claims that a program such as SAFE cannot detain a child against his or her will. The rule cited by HRS simply does not include that prohibition. It states in the affirmative two circumstances in which a program shall use appropriate physical intervention: to prevent injury to the client or others, or to prevent serious disruption of the therapeutic environment. SAVE contends that permitting a child to leave at will, without following established withdrawal procedures would cause a serious disruption of the therapeutic environment. SAFE presented some competent credible testimony by its director to support its contention. HRS presented no evidence on that subject. HRS, moreover, has failed to justify its policy determination and interpretation of the rule in this case. It argues, for example, that parents do have a right to admit their children to a secure facility and to obtain a court order or alternative involuntary assessment. SAFE is not classified as a secure facility. The procedures and statutes referenced in HRS' proposed recommended order, however, were not in effect at the time of the incident at issue. Chapter 397, Florida Statutes, was substantially revised in 1993 and the revisions became effective October 1, 1993, after the incident at issue. See, Chapter 93-39, Section 51, Laws of Florida. The arguments made by HRS were specifically rejected by the court in Department of Health and Rehabilitative Services v. Straight, Inc., 497 So.2d 692 (Fla. 1st DCA 1986), a case decided prior to the 1993 amendments and therefore more relevant to the instant case. The determination that HRS has failed to meet its burden of proof in this case does not resolve for the parties their more global issue of whether a non-secure program such as SAFE can detain a child involuntarily placed by his or her parents or guardian. That issue is not resolved in Straight, supra, decided under a different statute; or by HRS' rule Chapter 10E-16.004, Florida Administrative Code, in its current form. Nor, contrary to SAFE's assertions, is the issue resolved in the stipulated judgement entered in the Palm Beach case referenced in paragraph 14, above, affecting a program which is not described in any competent evidence in this record. The conclusion in this case is properly limited to the facts and circumstances presented, and to consideration of a rule and statute in existence at the time of the incident at issue. The conclusion is merely that HRS failed to meet its burden of proving that by detaining S. B. on August 27, 1993, SAFE violated Rule 10E-16.004(27)(a), Florida Administrative Code.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Health and Rehabilitative Services enter its final order dismissing the January 12, 1994 amended complaint. DONE and ENTERED this 2nd day of April, 1996, in Tallahassee, Florida. MARY CLARK, 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 2nd day of April, 1996. COPIES FURNISHED: Paul D. Newnum, Esquire TURNBULL, ABNER, DANIELS and ROOKS 147 West Lyman Avenue, Suite 100 Winter Park, Florida 32790-0100 James A. Sawyer, Esquire Department of Health and Rehabilitative Services 400 West Robinson Street, Suite S-827 Orlando, Florida 32801 Richard Doran General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-1600 Sandy Coulter, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-1600
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 At all times pertinent to the issues herein the Board of Medicine was the state agency in Florida responsible for the licensing of physicians and the regulation of the medical profession in Florida. Respondent was licensed as a physician in Florida under license No. ME 0040325, and at all times pertinent was assigned as Medical Director of Manatee Glens Corporation, (Manatee). Manatee is a corporation which operates a community mental health center and which provides out patient therapy sessions for residents of various Adult Congregate Living Facilities, (ACLF'S). One of the facilities where Manatee personnel provide therapy is Campbell House in Sarasota. A part of Respondent's responsibility as Medical Director of Manatee was to supervise the treatment of patients residing in the ACLF's, to review the appropriateness of treatment and to review the authorizations for treatment. Patient #1 and his wife, Imogene, were married for 52 years. He was a retired officer in the United States Army, and after his military service, worked for several years in the real estate and securities field in the Sarasota area. Some time after his retirement, Patient #1 was diagnosed as having Parkinson's Disease. In 1986, he began hallucinating. His condition deteriorated badly and reached the point where he could not make decisions. Because of that, Imogene obtained a durable Power of Attorney to allow her to conduct her husband's affairs. In March, 1993, when Imogene could no longer care for her husband at home, she placed him in Campbell House. At the time of the placement, Imogene provided the staff with the power of attorney and her home phone number. By this time Patient #1 had ceased communicating and, she believed, could neither talk nor read. Shortly after his placement, on March 30, 1993, the patient was interviewed by Anne Phillips, an outreach therapist for Manatee, to determine if he was a suitable participant in Manatee's outreach program. After she explained the program to him in detail and in what was described as simple terms, Ms. Phillips requested that the patient sign the consent for treatment form for enrollment in the Manatee program. As a result, Patient #1 signed a consent form authorizing Manatee Glens Corporation to provide him with therapy services at the ACLF. There is no evidence that the patient was coerced or threatened in order to make him sign the form. However, Petitioner claims, as does Imogene, that the signature is not valid because Patient #1 was not mentally competent to consent to, or otherwise authorize, such treatment for himself. There is evidence to the contrary, however. Ms. Phillips indicates the patient appeared able to concentrate on what he was being told and to understand what he was being asked to sign. On March 31, 1993, the day after Patient #1 signed the consent form, Manatee Glens began providing therapy services to him. Respondent authorized the treatment plan utilized for the patient. Imogene had never authorized any treatment for her husband, and when, in mid-October, 1993 she learned that he was receiving the therapy sessions, she asked that they be discontinued. By that time, the patient's mind had deteriorated to the point where he did not recognize his wife. There is a conflict in the evidence as to whether the patient was able to participate in or benefit from the therapy sessions which were conducted. Treatment records indicate that at times he seemed to be aware of his peers but he could not name them and could not discuss anything about them. There is some substantial doubt as to whether he even knew the name of the counselor who conducted the therapy sessions, Anne Phillips. He would, at times, sleep through all or a part of a session and often had trouble giving yes or no answers to simple questions. On the other hand, Mr. Djelic, the home operator who observed the patient on a daily basis, reports he regularly read the newspaper and occasionally read a magazine. He was capable of feeding himself, getting dressed and letting others know when he had to go to the bathroom and, in the opinion of Mr. Djelic, was relatively functional. His medications at the time included Senement which has the side effects of confusion, depression and memory impairment. He had both good and bad days depending upon the effects of his medication and his Parkinson's disease. When he was examined by Dr. Schwartzbaum on March 8, 1993, he was diagnosed as having Parkinson's disease, but there was no indication of any mental health limitation, and none of the records presented at the hearing indicated any diagnosis of Alzheimer's disease. The evidence of that diagnosis came solely from the patient's wife and is hearsay. Respondent did not examine the patient in question before authorizing the treatment complained of. He reviewed the patient's medical records, including the report by Dr. Schwartzbaum, and from them concluded that when the patient signed the consent form on March 30, 1993 he was knowledgeable, aware and cognizant about what he was signing, what the treatment entailed, and that he would be paying for the treatment. Respondent also determined that the patient participated in identifying some goals for treatment. Based on this information, Respondent concluded that the patient was competent to sign the consent form. There was no evidence that Patient #1 had ever been declared incompetent by a court or that a guardian had been appointed to manage his affairs.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Administrative Complaint in this matter charging Dr. Einisman with a violation of Section 458.331(1)(p), Florida Statutes, be dismissed. RECOMMENDED this 6th day of September, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 6th day of September, 1995. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: & 2. Accepted and incorporated herein. Accepted and incorporated herein except for the diagnosis of Alzheimer's disease which is not supported by any independent evidence or record. Accepted and incorporated herein. First sentence accepted and incorporated herein. Second sentence not proven by competence evidence of record. & 7. Accepted and incorporated herein. First and second sentences accepted and incorporate herein. Remainder not proven by competent evidence of record. - 11. Not proven by competent evidence of record. FOR THE RESPONDENT: - 3. Accepted and incorporated herein. First 5 sentences accepted and incorporated herein. Sixth sentence not a Finding of Fact but a restatement of testimony. Seventh sentence accepted and incor- porated herein. Eighth sentence accepted. & 6. Accepted and incorporated herein. 7. Accepted but considered in light of the fact that the witness is the Respondent. COPIES FURNISHED: Steven A. Rothenburg, Esquire Agency for Health Care Administration 9325 Bay Plaza Boulevard, Suite 210 Tampa, Florida 33619 Richard D. Saba, Esquire 2033 Main Street, Suite 303 Sarasota, Florida 34237 Jerome W. Hoffman General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32309 Dr. Marm Harris Executive Director Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0792
