Findings Of Fact On June 27, 1991, Petitioner applied for licensure in the State of Florida by endorsement as a physician. He is presently licensed in the states of Alabama, Louisiana and Wisconsin. He is board eligible in dermatology and is currently a house physician for New Orleans General Hospital in New Orleans, Louisiana. On January 5, 1993, Respondent denied Petitioner's Florida application because of Petitioner's previous history of psychiatric problems and psychotherapy which affected his ability to practice medicine with skill and safety; his current psychiatric and psychological evaluations indicating an obsessive-compulsive disorder which could affect his abilities to practice with skill and safety; and the prior denial of his licensure application in 1987 as the result of material misrepresentations in the application. On three separate occasions, Petitioner has applied for licensure in Florida. In addition to the current application, he applied on April 4, 1986 and on August 2, 1990. Following a formal hearing, the 1986 application was denied on December 22, 1987, as the result of misrepresentation in the application. An application for admission filed in 1990 was subsequently not timely completed and became void. All of Petitioner's applications and materials submitted with regard to those applications are maintained by Respondent in one file, a normal practice for Respondent. Documents in that application file have been generated by Respondent or supplied by Petitioner. Diagnosed in 1977 with an obsessive-compulsive disorder, obsessive- compulsive personality and dysthymia, Petitioner has been receiving treatment for his mental illness since 1979. He was hospitalized for a psychotic episode in 1987. From 1988 until the present, Petitioner has been taking Sinequan and Mellaril. The daily dosage of 50 milligrams of Mellaril has not varied during that time period. The daily dosage of Sinequan initially was 150 milligrams per day, tapered to 40 milligrams each night at present. About three months ago, Petitioner began taking about a gram of Valproic acid each night. These medications have a sedating or hangover effect on Petitioner in the morning. At one point in 1992, Petitioner temporarily switched to another drug, Anaframil, for a month to a month and a half. One of the reasons for the switch was that Petitioner was going to be reevaluated by a psychiatric expert, Dr. Dohn, at Respondent's request. Dr. Dohn's previous evaluation had expressed concerns about possible effects on Petitioner's clinical abilities as a result of medication side effects. After Dohn's second evaluation of Petitioner, Dohn was much more confident of Petitioner's abilities in view of the then change to Anaframil for treatment of Petitioner's obsessive-compulsive disorder. Mellaril and Valproic acid are psychotropic medications which have confusion as a side effect. Sinequan can have confusion and sedation as a side effect. Valproic acid also has a sedating effect. The dosage of these medications as taken by Petitioner are sufficient to produce these side effects. The effects of the medications carry over to the following day, although taken the evening before. Psychological evaluations of Petitioner dated October 7, 1991 and August 28, 1992, reflect that Petitioner's cognitive abilities have been affected by his mental condition, inclusive of the medications he takes. The 1991 evaluation documents Petitioner's difficulties with recall of verbal instructions and numbers presented verbally to him; completing eye-hand coordination tasks within the maximum time limit; distinguishing visual details; and a tendency to become stymied with anxiety. Further, the 1992 report indicates that certain symptoms of Petitioner's obsessive-compulsive disorder could conceivably interfere with his ability to perform surgery. The 1992 report was done following testing of Petitioner after his brief change to the drug, Anaframil. Following Petitioner's 1992 evaluation by Dr. Dohn, conducted in close proximity to the August 1992 psychological evaluations, Petitioner quit taking Anaframil and resumed his previous medications of Mellaril and Sinequan. At deposition following a recent psychiatric evaluation of Petitioner by Dr. Edward Foulks, Foulks opined that Petitioner's illness should not be a barrier to the practice of medicine. Foulks opinion is not credited in view of his lack of independent knowledge of Petitioner's medications or mental condition; his lack of knowledge of whether Petitioner's condition had stabilized; how the condition had been resolved; or how much further treatment Petitioner would likely require. Foulks' opinions were based in large part upon Petitioner's representations to him. Petitioner's evaluations from Lazarus S. Gerald of the University of Pennsylvania Department of Dermatology, dated August 21, 1990 and July 8, 1991; from the chief of the Dermatology Department of Lloyd Noland Hospital and Clinic in Fairfield, Alabama, dated August 21, 1990; and from Dr. Derek J. Cripps, Director of the Department of Dermatology of the University Station Clinics, University of Wisconsin, note Petitioner's psychiatric condition as a possible explanation for performance difficulties. In 1986, Petitioner made numerous misrepresentations in his application for licensure. He answered "no" to the application question of whether he had a mental or emotional illness, although he had been ill since 1977 and had been treated from 1979 until 1986 by several psychiatrists. He also answered "no" to whether he had received psychotherapy. He was suspended from seeing patients during the last three months of residency at the University of Wisconsin, but answered "no" to the question of whether he had ever ceased practice for more than a month. He also answered "no" to the question of whether he had ever been denied hospital privileges or had such privileges acted against. In his August 2, 1990 application, Petitioner again answered "no" to whether he had been denied hospital privileges or had his hospital privileges acted against. Later, recognizing that this was not an accurate representation, Petitioner forwarded an affidavit, dated May 16, 1991. In that affidavit, Petitioner changed his answer to "yes". While only receiving partial credit of three months for his residency at the University of Wisconsin, Petitioner listed the dates on the form so that it appeared that he had received one year's credit. In his current application, dated June 27, 1991, Petitioner again failed to show that he only received partial credit for his residency at the University of Wisconsin. An affidavit dated November 21, 1991, was submitted by him regarding the residency program at Tulane University in which he was then participating. The affidavit failed to indicate that his participation in the residency program was conditioned upon his being in the impaired residents program and that the residency lasted 18 months, although he needed only six months to complete residency requirements for the dermatology board examination. Petitioner also failed to tell his supervising physician at Tulane, Dr. Shrum, of Petitioner's previous application for licensure in Florida or denial of that application for licensure, until after Shrum had been deposed regarding Petitioner's reputation for truthfulness.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered denying the application for licensure by endorsement. DONE AND ENTERED this 10th day of December, 1993, in Tallahassee, Leon County, Florida. DON W. 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 10th day of December, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1671 The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings. 1.-2. Accepted. Rejected, weight of the evidence. Rejected, cumulative. Subordinate to HO findings. Accepted. Subordinate to HO findings. 8.-13. Accepted, but not verbatim. 14. Rejected, credibility. 15.-20. Rejected, unnecessary. 21.-25. Subordinate to HO findings. 26. Rejected, credibility. 27.-38. Rejected, credibility. 39.-45. Rejected, credibility. 46.-51. Rejected, subordinate to HO findings. 52. Rejected, relevancy. 53.-59. Rejected, credibility. Respondent's Proposed Findings. 1.-13. Accepted, but not verbatim. COPIES FURNISHED: Claire D. Dryfuss, Esquire Department of Legal Affairs The Capitol, PL-01 Tallahassee, Florida 32399-1050 Steven W. Huss, Esquire 1017-C Thomasville Road Tallahassee, Florida 32303 Jack McRay General Counsel Department of Business and Professional Regulation The Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0750 Dorothy Faircloth Board of Medicine Department of Business and Professional Regulation The Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether the subject Endorsement to an HMO benefit contract language is ambiguous and, if so, whether the subject subscriber is entitled to additional benefits because of the ambiguity.
Findings Of Fact At all times pertinent to this proceeding, T. C. was enrolled as a participant in the group HMO contract issued by Petitioner to a construction company for the benefit of its employees and their eligible dependents. The HMO contract consisted of a Group Health Services Agreement, a Member Handbook, and any endorsements to either document. The Member Handbook and an Endorsement to the Member Handbook in September 1999 are the documents pertinent to this proceeding. In those documents, Petitioner is referred to as HOI. Prior to September 1999, paragraph 1.08 of the schedule of benefits section of the Member Handbook (page 42) provided, in pertinent part, as follows. 1.08 Short-term physical, speech, or other therapies designed to correct functional defects which remain after a catastrophic illness or crippling injury, . . . when medically appropriate for the treatment of a Condition, provided that significant improvement of the Member's Condition, as determined by the Medical Director of HOI, is expected within two months from the first date of treatment. This benefit is limited to a maximum of two months of treatment per Member per Calendar Year. The subject HMO contract was amended in September 1999 by the Endorsement styled "Endorsement: Rehabilitation Services (85999.459/99SR)" 3/ provided, in pertinent part, as follows: All prior references to short-term physical, speech, or other therapies in the Group Health Services Agreement and/or Member Handbook and any Endorsement attached thereto is [sic] hereby deleted and replaced with the following new subsection entitled Rehabilitation Services: Rehabilitation Services Prescribed short-term inpatient and outpatient rehabilitation services [are] limited to the therapy categories listed below. In order to be covered: (1) HOI must review, for coverage purposes only, a Rehabilitation Plan submitted or authorized by the Member's 4/ Primary Care Physician; (2) HOI must agree that he Member's Condition 5/ is likely to improve significantly within 62 days from the first date such services are to be rendered; (3) such services must be provided to treat functional defects which remain after an illness or injury; and (4) such services must be Medically Necessary 6/ for the treatment of a Condition. Rehabilitation Plan means a written plan, describing the type, length, duration, and intensity of rehabilitation services to be provided to a Member with rehabilitation potential. Such a plan must have realistic goals which are attainable by the Member within a reasonable length of time and must be likely to result in significant improvement within 62 days from the first date such services are to be rendered. The Rehabilitation Plan must be renewed every 30 days. Outpatient Outpatient rehabilitation services are limited per Member per Condition to the number of Medically Necessary rehabilitation services which are received by the Member within the consecutive 62-day period which immediately follows the first date that the Member begins such services. Outpatient rehabilitation services are limited to the therapy categories listed below: Speech Therapy: . . . Physical/Occupational Therapy: Services of a Physical Therapist or Occupational Therapist or Massage Therapist for the purpose of aiding in the restoration of normal physical function lost due to illness, injury, stroke or a surgical procedure while this coverage was in force. In order for Physical Therapy, Occupational Therapy, or massage therapy to be covered under this provision, such services must be part of an approved Rehabilitation Plan and provided by a provider licensed to render such services. Cardiac Therapy: . . . Inpatient Rehabilitation services of the therapy categories described above provided during a covered inpatient confinement will be covered for the duration of the confinement. T. C. was injured in a fall on December 31, 1999. He sustained a fracture of his left proximal humerus with neurovascular compromise. He underwent surgery to reduce the fracture at St. Mary's Medical Center in West Palm Beach where he remained hospitalized until his discharge on January 10, 2000. Upon discharge, his physicians recommended and prescribed a Rehabilitation Plan which provided for physical therapy on Tuesdays and Thursdays of each week. This Rehabilitation was reviewed and approved by Petitioner, effective January 31, 2000. T. C. began receiving rehabilitation services on Thursday, February 10, 2000, from a provider known as Pediatric Therapy. On or about March 24, 2000, Petitioner notified T. C.'s family and Pediatric Therapy that additional physical therapy would not be covered after that date. On Friday, March 24, 2000, T. C.'s mother telephonically filed an expedited grievance with Petitioner requesting coverage for additional physical therapy. As part of her request, she informed Petitioner that although Petitioner's authorization period began on January 31, 2000, T. C. did not commence treatment at Pediatric Therapy until February 10, 2000. Thus, approximately ten days of the authorized period were not utilized. She further informed Petitioner that he had not completed treatment and continued to require physical therapy. Upon review of his treatment dates in relation to the authorization period and consideration of the information provided by his mother, Petitioner approved coverage for a further period of rehabilitation services from Tuesday, March 28, 2000, to April 13, 2000, the date the 62-day period starting February 10, 2000, expired. Petitioner declined coverage for rehabilitation services beyond April 13, 2000, on the basis that the benefits for outpatient therapy under the contract had been exhausted. In its correspondence to T. C.'s mother, Petitioner stated that it was relying on paragraph 1.08, page 42, of the HMO contract. The reference to this provision was an error because the provision had been replaced and superseded by the Endorsement. There was no evidence that T. C.'s family suffered any prejudice because of the erroneous reference in the denial correspondence. The operative language at issue in this proceeding is the language set forth in the Endorsement.
The Issue The issue is whether Respondent should grant Petitioner an exemption from disqualification from working in a position of special trust with developmentally disabled persons.
Findings Of Fact On April 13, 1987, Petitioner was convicted of a second degree felony in the Circuit Court of Gadsden County, Florida, for selling cocaine, a controlled substance as defined by Section 893.03, Florida Statutes, contrary to Section 893.13, Florida Statutes. Petitioner was sentenced to serve 21 days in jail, with credit for 21 days served. She was placed on two years' probation. Petitioner failed to comply with the terms of her probation. Specifically, she failed to report to her probation officer, she changed her residence to Leon County without the consent of her probation officer, and she failed to pay any of the costs assessed as a result of her April 13, 1987, conviction. The Circuit Judge of Gadsden County issued a warrant for Petitioner's arrest on September 24, 1987. On April 13, 1988, Petitioner was convicted of the following in the Circuit Court of Leon County, Florida: (a) selling cocaine, a second degree felony, contrary to Section 893.13, Florida Statues; (b) possession of cocaine, a third degree felony, contrary to Section 893.13(1)(e), Florida Statutes (1987)1; and (c) possession of drug paraphernalia, a first degree misdemeanor, contrary to Section 893.147, Florida Statutes. Petitioner was sentenced to 93 days of time served in the Leon County jail and placed on community control for one year to be followed by four years of probation. Petitioner's sentence to community control included commitment to an inpatient drug treatment program. Conditions of her probation required drug counseling and random urinalysis for drug screening. On May 24, 1988, the Circuit Court Judge in Gadsden County revoked Petitioner's probation pursuant to an amended affidavit for violation of probation. The amended affidavit charged Petitioner with failing to remain at liberty without violating any law. Petitioner was subsequently sentenced on her April 13, 1887, conviction to a term of 30 months with a recommendation that she receive drug counseling and treatment. Petitioner received treatment for substance abuse in 1988 while serving her sentences for the above-referenced convictions. She admits that she occasionally continued to use drugs during her subsequent probation. She had a positive urinalysis as late as 1992. Petitioner's probation was terminated in 1993. She has had no urinalysis to test for substance abuse since that time. Petitioner is 35 years old. She has three children, aged 19, 18, and 6. The middle child is developmentally disabled due to spinal meningitis. Petitioner married the father of the youngest child in 1996. She currently lives with her husband, her disabled 18 year-old child, and her six year- old child in Leon County, Florida. Petitioner became interested in working with developmentally disabled persons because of her middle child's disability. She received her general education diploma in 1995. She is currently working on an Associate of Arts degree at Kaiser College in two areas: Health Service Administration and Medical Assistance. Petitioner worked at Tallahassee Developmental Center as a training instructor from February 1999 through April 1999. Her work included providing personal assistance with bathing and feeding of developmentally disabled clients. Petitioner left this job so that she would be free for her church ministry on Sundays. From April 1999 through September 1999, Petitioner worked in a day care program for developmentally disabled clients at Pyramid, Inc. Her work included collecting data, feeding and changing clients, walking clients, and assisting clients with skill modules. Petitioner was placed on administrative leave from this job because she did not pass the background screening required for direct care providers by Section 393.0655, Florida Statutes. However, Petitioner is eligible to return to her position at Pyramid, Inc., pending receipt of exemption from disqualification pursuant to Section 435.07, Florida Statutes. After leaving her job with Pyramid, Inc., Petitioner worked on-call for one month providing in-home personal care for Human Resources Development. She is currently unemployed. Petitioner's career goal is to start her own business working with developmentally disabled persons. She wants to be qualified to manage a professional office like the one at Pyramid, Inc., and to provide direct care to clients on an as- needed basis. Petitioner has been a member of the Holy Community Church for six years. She is now a minister/evangelist for her church having spent one year in the field as a missionary to other churches. Petitioner's work within her church includes founding a program known as Second Chance Outreach Ministry. The purpose of the program is to assist alcoholics and drug addicts. The program currently has about twelve active participants. The program sponsors a food bank and clothes closet for addicts. At the time of the hearing, Petitioner was working on raising money to help participants in the Second Chance Outreach Ministry pay rent. She was also working on a project to feed the homeless on February 19, 2000, at the shelter in Leon County, Florida. She hoped to raise enough money through donations to provide the homeless with clothes and blankets.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is
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
The Issue The issue is whether Respondent discriminated against Petitioner based on his race and/or disability by terminating his employment in violation of Section 760.10, Florida Statutes.
Findings Of Fact Respondent manufactures rubber hoses for the automotive industry. Petitioner is a black male who began working for Respondent on February 17, 1999. Petitioner's job as a molder required him to work with his hands and arms pinning rubber hoses onto metal pins and removing the hoses from the pins after they cooled down. The job was dangerous and physically stressful to Petitioner's hands and wrists. After working for Respondent for approximately three months, Petitioner suffered a job-related injury. Respondent sent Petitioner to a physician who diagnosed Petitioner as having sprained hand and wrist muscles. The physician prescribed anti-inflammatory medicine for Petitioner and recommended that he return to work on light duty. For the next several months, Petitioner worked as a molder in an area of Respondent's plant that caused less physical stress on the muscles and ligaments in Petitioner's hands and wrists. Petitioner had no problems working in that area. In time, Respondent began to experience a decrease in the number and type of orders that it received from its customers. The change in demand for Respondent's products resulted in a reorganization of the production line, a smaller number of available positions, and in some cases, layoffs of employees. Eventually, Respondent moved Petitioner's work station back to his original position which was physically more stressful. After a couple of months, Petitioner suffered another work-related injury. Respondent told Petitioner that he would have to continue working as assigned because there was no other work or lighter duty available. Petitioner continued to work in the more physically stressful area of Respondent's plant. On one occasion, Respondent took Petitioner to the hospital because he was experiencing pain. Petitioner did not go back to work until he saw a physician who specialized in treating Petitioner's type of injury. Petitioner eventually was diagnosed as having bi- lateral carpel tunnel syndrome. The doctor recommended that Petitioner work on light duty until he could have surgery. Respondent accommodated Petitioner's needs by allowing him to work on light duty pending the proposed surgery. Respondent has a substance abuse policy to maintain a work place that is free from the use of illegal drugs and the use of alcohol. The policy provides for assistance for employees who develop an addiction to drugs or alcohol and who voluntarily seek assistance before the company has knowledge of the problem. If an employee tests positive for illegal drugs or alcohol use while on the job, the employee is subject to immediate termination. Respondent's substance abuse policy provides for drug and alcohol screening under the following circumstances: after any injury that requires outside medical attention; after any incident that results in damage to other associates, company property, or a pattern of personal injuries; upon observance of abnormal or erratic behavior while at work or a significant deterioration in work performance; upon reasonable suspicion due to observable phenomena, direct observation of use, or a report of use by a reliable and credible source; and (e) pursuant to random drug screening. Petitioner never tested positive for illegal drugs or alcohol use while he was working for Respondent. He never even went to work under the influence of illegal drugs or alcohol. However, on August 22, 2000, Petitioner voluntarily advised Respondent that that he had a substance abuse problem and that he desired to participate in the assistance referral program. On August 23, 2000, Petitioner met with Respondent's human resource manager and occupational nurse. The nurse reviewed the company's substance abuse policy and assistance referral program with Petitioner. Additionally. the nurse advised Petitioner as follows: (a) he would have to enroll in a treatment program; (b) he would have to provide Respondent with weekly letters from the treatment program, furnishing information about Petitioner's progress in the program; and (c) he would be subject to random drug screens for two years. The human resource manager advised Petitioner that he would be discharged if he failed to comply with and successfully complete the treatment program. Petitioner indicated that he understood Respondent's requirements for participation in the assistance referral program. Petitioner elected to enroll in an outpatient substance abuse treatment program sponsored by Marion Citrus Mental Health. Petitioner missed his first appointment at the treatment center because he lacked transportation. Petitioner eventually began attending the treatment program three nights a week. He continued to work light duty at Respondent's plant during the day. Petitioner did not furnish Respondent with documentation showing that he had enrolled in the substance abuse treatment program. Instead, Petitioner advised Respondent's occupational nurse that he had signed a release at Marion Citrus Mental Health so that she could call his mental health counselor to verify his attendance in the program. Meanwhile, Respondent continued to reorganize and downsize its operations. When there were more employees restricted to light duty than light duty positions available, Respondent assisted the employees in filing workers' compensation claims and allowed them to stay at home on medical leave for up to 12 weeks. In time, Respondent could no longer accommodate Petitioner's physical injury with a light duty position. Petitioner filed a workers' compensation claim and began staying at home on medical leave on September 11, 2000. On September 11, 2000, Respondent's occupational nurse called Petitioner's mental health counselor at Marion Citrus Mental Health. The nurse learned that Petitioner had kept an appointment at the mental health facility on September 7, 2000. The nurse also learned that Petitioner had not signed a release of information form that would allow the counselor to share any other information about Petitioner's treatment program. On September 12, 2000, Respondent's occupational nurse sent Petitioner a letter. The purpose of the letter was to remind Petitioner that he was required to furnish Respondent with a written statement from the substance abuse treatment facility each week. According to the letter, the written statement was supposed to include Petitioner's treatment plan schedule. The letter advised Petitioner that to remain employed, he would have to keep Respondent fully informed about his progress in and completion of the treatment program. On September 14, 2000, Petitioner called Respondent's occupational nurse to advise her that he could not keep his appointment at Marion Citrus Mental Health that week. Petitioner advised the nurse that he was taking medication that made him dizzy and that he had transportation problems, which made it difficult for him to attend the treatment program. On September 15, Petitioner went to Respondent's plant to see the occupational nurse. Because he claimed that he had not received the letter dated September 12, 2000, the nurse read the letter to him and gave him a copy of it. Once again the nurse explained Respondent's assistance referral program to Petitioner, advising him that Respondent would not tolerate future missed appointments at Marion Citrus Mental Health. The nurse also gave Petitioner a rapid drug screen, the result of which was negative. On November 15, 2000, Respondent sent Petitioner another letter regarding his failure to furnish Respondent with evidence of his attendance at and completion of a treatment program. The letter advised Petitioner that he had to furnish the information on or before November 27, 2000, or risk having his employment terminated. Petitioner received Respondent's November 15, 2000, letter but did not furnish Respondent with the requested information. Petitioner did not call Respondent to explain his failure to do so. In a letter dated November 27, 2000, Respondent advised Petitioner that he was discharged. Petitioner furnished Respondent with a letter dated December 4, 2000, from Marion Citrus Mental Health. The letter states that Petitioner had been enrolled in substance abuse outpatient counseling beginning August 31, 2000, and that he was progressing well. There is no evidence that Respondent applied its substance abuse policy to non-minority employees differently than it did to Petitioner or other minority employees. Additionally, there is no evidence that Respondent treated non-minority employees who had workers' compensation claims differently than it treated Petitioner or other minority employees who were home on medical leave due to a workers' compensation injury. In fact, Petitioner admitted during the hearing that he had no proof that Respondent discriminated against him based on his race. During the relevant time period, Respondent had approximately 52 employees (half black and half white) that suffered a workers' compensation injury. Employees with workers' compensation injuries were allowed to remain on family medical leave for 12 weeks. Employees who returned to work within the 12-week period were guaranteed a job. Subsequent to the 12-week period, employees with workers' compensation injuries were not officially terminated unless they were unable to return to work after 12 months.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 10th day of October, 2002, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of October, 2002. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Ray Mayo 708 Southwest Second Street Ocala, Florida 34471 Kade Spencer Dayco Products, Inc. 3100 Southeast Maricamp Road Ocala, Florida 34471 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
