The Issue The issue in these consolidated cases is whether proposed amendments to Rule 10-5.011(1)(o), and (p) F.A.C. relating to certificates of need for hospital inpatient general psychiatric services, are invalid exercises of delegated legislative authority, as defined in Section 120.52(8), F.S.
Findings Of Fact Metamorphosis of the Rules Prior to 1983, hospitals were not separately licensed, and certificates of need (CON) were not required for the designation of beds for psychiatric and substance abuse services. In 1983, statutory amendments to Chapter 381, F.S. addressed psychiatric beds as reviewable projects in the CON program. In 1983, HRS adopted rules establishing four new categories of beds, now found in Rules 10-5.011(1)(o), (p), and (q), F.A.C.: Short-term psychiatric, long-term psychiatric, and short and long-term substance abuse. At the time that the categories were created, HRS conducted an inventory of the hospitals, asking how many beds were designated in each category. Based on the responses, published in the Florida Administrative Weekly, future projections of need were made and applications were considered for CONs. Another category of psychiatric beds was not included in the 1983 rules. Intensive residential treatment programs for children and adolescents were created by statute in 1982, and are defined in Section 395.002(8), F.S. as: a specialty hospital accredited by the Joint Commission on Accreditation of Hospitals which provides 24-hour care and which has the primary functions of diagnosis and treatment of patients under the age of IS having psychiatric disorders in order to restore such patients to an optimal level of functioning. These facilities, called IRTFs, may become licensed as hospitals pursuant to Section 395.003(2)(f), F.S., but as hospitals they must obtain CON approval pursuant to Sections 381.702(7) and (12), F.S. and Section 381.706(1) (b), F.S. IRTFs have no statutory or regulatory restrictions on length of stay and were approved by HRS at one time under an unwritten policy that there be one such facility available in each HRS planning district, without regard to the availability of other long or short term psychiatric programs. In 1985, HRS proposed a rule amendment which would have eliminated the short and long term distinction, as well as the distinction between psychiatric services and substance abuse services. Six months later, the proposed rule amendment was withdrawn. It was highly controversial; several challenges were filed; objections were made by various local health councils; and a new administrator took over. The agency decided to rework its proposed change~;. The agency next began the process of revision in 1987, and in 1988 convened a workshop group to review an issue paper prepared by agency staff. Another work group met in 1989 to consider the consolidation of psychiatric and substance abuse rules. HRS staff reviewed literature on the subjects of substance abuse and psychiatric services, including literature relating to access by indigent patients and the provision of services to children and adolescents. Staff prepared rule drafts which were circulated in- house, including the alcohol, drug abuse and mental health program office; and to such outside groups as the Association of Voluntary Hospitals of Florida, the Florida Hospital Association and the League of Hospitals. The proposed rule amendments which are the subject of this proceeding were filed on January 19, 1990 (substance abuse), and on January 26, 1990 (inpatient psychiatric services) in the Florida Administrative Weekly. The Parties HRS administers the CON program pursuant to Section 381.701, et seq., F.S. (1989). The CON program regulates entry into the Florida health care market by providers through review and approval of certain capital expenditures, services and beds. The petitioner, Florida League of Hospitals, Inc. is a nonprofit corporation which is organized and maintained for the benefit of investor-owned hospitals which comprise its membership. The remaining petitioners and intervenors are current providers of hospital inpatient psychiatric services, long and short term, and of inpatient substance abuse services, long and short term. The petitioners and intervenors are all substantially affected by the proposed rules and have stipulated to the standing of all parties in this proceeding. Abolishing Distinctions Between Long-Term & Short-Term Psychiatric Beds "Short term hospital inpatient psychiatric services" is defined in existing rule 10-5.011(1)(o)1, FAC, as follows: Short term hospital inpatient psychiatric services means a category of services which provides a 24-hour a day therapeutic milieu for persons suffering from mental health problems which are so severe and acute that they need intensive, full-time care. Acute psychiatric inpatient care is defined as a service not exceeding three months and averaging length of stay of 30 days or less for adults and a stay of 60 days or less for children and adolescents under 18 years. "Long term psychiatric services" is defined in existing rule 10- 5.011(1)(p)1., FAC as a category of services which provides hospital based inpatient services averaging a length of stay of 90 days. Neither rule addresses services to adults with an average length of stay (ALOS) of 30-90 days, or services to children and adolescents with a 60-90 day ALOS. Because of this, and the "averaging" process, long term hospitals legitimately serve "short term" patients and short term hospitals may serve "long term" patients. One party has calculated than a long term facility could legally provide short term services for 80% of its patients, and long term services for only 20% of its patients and still have an ALOS of 90 days. Under the existing rules a facility must file a CON application to convert from long term to short term beds, or vice versa, and is subject to sanctions for failure to comply with the designation on its CON. The proposed changes would repeal rule 10-5.011(1) (p), FAC regarding long term services, and would amend rule 10- 5.011(1) (o), FAC to delete the definition of short term services, thereby permitting facilities to serve patients without regard to length of stay. The proposed changes are supported by several factors upon which a reasonable person could rely. Substantial changes have occurred in the last decade in clinical practices and in third party reimbursement to reduce the ALOS for hospital inpatient psychiatric care. Prior to the 1960s, there was no distinction between long and short term care, as all hospital based care was long term with an emphasis on psychoanalytic therapy. Beginning in the 1960s, the concept of community mental health programs evolved with an emphasis on deinstitutionalization of patients in large public "asylums" and with a goal of treatment in the least restrictive environment. In more recent years the trend has spread to the private sector. Improvements in the availability and use of psychiatric drugs, the use of outpatient care or partial hospitalization, and improved follow up care have led to a dramatic decrease in ALOS. Long term care is costly, and whether third party payors have been a driving force, or are merely responding to the trends described above, long term inpatient reimbursement is virtually nonexistent. During the 19805, most insurance companies imposed a 30-day limit on psychiatric inpatient care or imposed monetary limits which would have effectively paid for less than a 90-day term. CHAMPUS, the program providing insurance to military dependents, was providing long term coverage in 1982, but by 1986 its coverage was rarely available for more than 30-60 days, and today, under CHAMPUS' case management system, 30 days is a "luxurious amount". Other large third-party payors such as Blue Cross/Blue Shield have similar limits or aggressively use case management (the close scrutiny of need on a case by case basis) to limit reimbursement for inpatient care. Of the two or three long term facilities in existence at the time that HRS' rules were originally adopted, only one, Anclote Manor still reported an ALOS of over 90 days by 1989, dropping from an ALOS of 477.9 days in 1986 to 145.4 days in 1989. At the same time its occupancy rate dropped below 50%. There is an interesting dialogue among experts as to whether there still exists a clinical distinction between long term and short term inpatient psychiatric care. Studies at the Florida Mental Health Institute found no difference in rate of rehospitalization over a 12 month period between patients who were in a nine week program and patients from Florida State Hospital with a 500 day length of stay. Some mental health practitioners are looking now at treating the chronic psychiatric patient with repeated short term hospital stays and less intensive care between episodes, rather than a single long term inpatient stay. Other practitioners maintain that a long term psychiatric problem is behavioral in nature and requires a total life readjustment and longer length of stay. Whichever practice may be preferable, the facts remain that fewer and fewer mental patients are being treated with long term hospitalization. The proposed rules would not foreclose any facility from providing long term care, if it finds the need. To the extent that a clinical distinction exists between short and long term care, the existing rules do not address that distinction, except from a wholly arbitrary length of stay perspective. The existing rules no longer serve valid health care objectives. Existing providers with short term CONs are concerned that the allowing long term facilities to convert will further glut an underutilized market and will result in an increase in vacant beds and a rise in the cost of health services, contrary to the intent of the CON program. Intensive residential treatment facilities (IRTFs), which will be folded into the need methodology for children and adolescent beds, have no current restrictions on length of stay and may already compete with impunity with the short term providers. Moreover, long term facilities are also providing substantial short term care as a result of the trends discussed above. HRS has not consistently enforced the length of stay restrictions of long term providers' CONs. Whether those CONs were improvidently granted is beside the point. The capital costs have already been incurred; the beds are available; and the beds are being used, in part, for short term services. Abolishing the distinction is a rational approach to current conditions. And in determining that all existing providers would be placed in the same position regarding length of stay, HRS avoids the regulatory nightmare of trying to enforce limitations on existing providers and approving new beds without limitations. Creating a Distinction Between Adult and Children/Adolescent Beds Rule 10-5.011(1)(o)3.c. creates a CON distinction between general psychiatric services for adults, and those services for children and adolescents. Rule 10-5.011(1)(o)4., as proposed, would create separate need criteria for hospital inpatient general psychiatric services for adults and for children/adolescents. Adolescents are defined in Rule 10- 5.011(1)(o)2.a., as persons age 14 through 17 years. Persons over 17 years are adults, and under 14 years are children. There are valid clinical reasons to distinguish between programs fob the separate age groups. Although there is some overlap, differing therapies are appropriate with different ages. The types of services offered to adults are not the same as those which are offered to children. Children, for example, often receive academic educational services while being hospitalized. Adults receive career or vocational counseling and marriage counseling. The required separation by age categories would remove some flexibility from providers. However, this is offset by the Department's valid need to track for planning purposes inpatient services to children and adolescents separately from those provided to adults. Based on anecdotal evidence, HRS' Office of Alcohol, Drug Abuse and Mental Health Program Office is concerned about the possible overutilization of hospital inpatient services for children and adolescents and the potential that when insurance reimbursement expires they are discharged without clinical bases. Taking Inventory Under the proposed rule, in order to separately regulate adult and children/adolescent beds, HRS will fix an inventory of uses as of the time that the rule takes effect. For facilities with CONs which already allocate beds between the two groups, the proposed rule will have no effect. For facilities without a designation, as long as adults and children/adolescents are kept in separate programs, the allocation can now be mixed and changed at will. The rule amendment will freeze that use in place. HRS has conducted a preliminary survey to determine the existing uses of psychiatric, substance abuse and residential treatment program beds. The survey of approximately 120 facilities is complete, but is not intended to limit those facilities unless their CON already provides a limit. A final inventory will be taken after the proposed rules become effective. The inventory will be published, and providers will be given an opportunity to contest its findings. The ultimate outcome will be amended CONs and licenses which reflect each facility's mix of adult and children/adolescent beds. The process is a fair and reasonable means of commencing separate regulation of services to these age groups. The Definitions Proposed rules 10-5.011(1)(o)2.1., 2.p., and 2.t.) define "hospital inpatient general psychiatric services", "psychiatric disorder" and "substance abuse", respectively. Each of these provisions defines the terms by reference to classifications contained in the Diagnostic and Statistical Manual of Mental Diseases (DSM-III-R Manual) and equivalent classifications contained- in the International Classification of Diseases (ICD-9 Codes). The rule as originally proposed included the phrase "or its subsequent revisions", after incorporating the manuals by reference. In testimony, and in the parties second agreement (Hearing Office exhibit 3) the phrase is deleted. However, it still appears in proposed rule 10-5.011(1) (o)2.1., perhaps inadvertently. The DSM-III-R is a generally recognized manual for the classification of mental disorders and is widely used by clinicians and medical records professionals to categorize the conditions of patients. The ICD-9 codes are broader than just mental disorders, but they have a section on mental disorders with numbers that are identical to those in the DSM-III-R. Although the manuals are complex and subject to interpretation, clinicians are accustomed to their use and they provide a reasonable guide as to the services which may be provided in an inpatient substance abuse program, as distinguished from an inpatient psychiatric program. Advertising Limited Proposed rule 10-5.011(1)(o)3.d. (as amended in the parties second agreement, Hearing Officer exhibit #3), provides: D. Advertising of services. The number of beds for adult or for children and adolescent hospital inpatient general psychiatric services shall be indicated on the face of the hospital's license. Beds in intensive residential treatment programs for children and adolescents which are licensed as specialty hospital beds will be indicated as intensive residential treatment program beds on the face of the hospital's license. Only hospitals with separately-licensed hospital inpatient general psychiatric services, including facilities with intensive residential treatment programs for children and adolescents which are licensed as specialty hospitals, can advertise to the public the availability of hospital inpatient general psychiatric services. A hospital with separately licensed hospital inpatient general psychiatric services that does not have a certificate of need for hospital inpatient substance abuse services may advertise that they [sic] provide services for patients with a principal psychiatric diagnosis excluding substance abuse and a secondary substance abuse disorder. The Department does not currently have CON, licensure, or other rules which limit the ability of a health care provider to advertise its services, and has never used advertising as a factor in conducting CON review for any proposed services. HRS included provisions regarding advertising in its proposed rules because it had evidence that existing facilities have used misleading advertisements. The evidence came from other providers, rather than consumers. However, it is the consumer whom the agency feels may be confused by advertising which implies that services are available when such services cannot be legally provided under the facility's license. The advertising provision is prospective in nature, seeking to prevent licensed providers from advertising services for which they are not licensed. The provisions do not relate to CON review, and the staff is unclear as to how the rule would be implemented. Licensing and CON review are two separate functions within the agency. Although the term is not defined in the proposed rule, advertising broadly includes word of mouth referrals and public presentations by professionals in the community, as well as traditional media and written advertisements. Properly utilized, advertising helps consumers exercise choice and gain access to needed services. Improper advertising is subject to the regulation of federal and state agencies other than the department. New Need Methodology, with Preferences Proposed Rule 10-5.011(1)(o)4., deletes the existing population ratio methodology and creates a need formula based upon use rate, for adult and children/adolescent inpatient psychiatric services. Certain preferences are also described. 34. Rule 10-5.011(1) (o)4.e.(III) provides: In order to insure access to hospital inpatient general psychiatric services for Medicaid-eligible and charity care adults, forty percent of the gross bed need allocated to each district for hospital inpatient general psychiatric services for adults should be allocated to general hospitals. The same provision for children and adolescent services is found in rule 10-5.011(1)(o)4.h.(III). Medicaid reimbursement is not available for inpatient services in a specialty hospital. 35. Rule 10-5.011(1)(o)4.i. provides: Preferences Among Competing Applicants for Hospital Inpatient General Psychiatric Services. In weighing and balancing statutory and rule review criteria, preference will be given to applicants who: Provide Medicaid and charity care days as a percentage of its total patient days equal to or greater than the average percentage of Medicaid and charity care patient days of total patient days provided by other hospitals in the district, as determined for the most recent calendar year prior to the year of the application for which data are available from the Health Care Cost Containment Board. Propose to serve the most seriously mentally ill patients (e.g. suicidal patients; patients with acute schizophrenia; patients with severe depression) to the extent that these patients can benefit from a hospital-based organized inpatient treatment program. Propose to service Medicaid-eligible persons. Propose to service individuals without regard to their ability to pay. Provide a continuum of psychiatric services for children and adolescents, including services following discharge. The preferences are similar to those in CON rules relating to other types of health services and are intended to implement, in part, the legislative mandate that the agency consider an applicant's ". . . past and proposed provision of health care services to medicaid patients and the medically indigent." Section 381.705(1) (n), F.S. Under Medicaid reimbursement general hospitals are paid a set per diem based on a variety of services provided to all Medicaid patients, regardless of actual cost of the individual service. As psychiatric services are generally less costly than other services on a per diem basis, hospitals may recoup a greater percentage of their costs in serving Medicaid psychiatric patients. This and the fact that public hospitals receive some governmental subsidies do not obviate the need for incentives in the CON program. Not all of the charity care provided by these hospitals is funded and a large amount is written off. Although Petitioners argue that the preferences are not needed, or are too generous, none provide competent evidence that the facilities who do not enjoy the preferences are unduly prejudiced. The 40% allocation of bed need to general hospitals is a guideline, not a maximum, as applied by the agency, and presumes that there are general hospitals competing in any batch in question. It is not intended to frustrate a separate section of the rule which allows a hospital with at least an 85% occupancy rate to expand regardless of need shown in the formula and the occupancy rate district-wide. See 10- 5.011(1) (o)4.d. and g. "Evaluation of Treatment Outcomes" The proposed rules contain three provisions relating to a hospital's evaluation of its patients' treatment outcomes. Rule 10-5.011(1) (o)3.i, includes among "required services", ". . . an overall program evaluation of the treatment outcomes for discharged patients to determine program effectiveness." Rule 10-5.011(1)(o)8.j., requires in the application, A description of the methods to be used to evaluate the outcome of the treatments provided and to determine the effectiveness of the program, including any summary evaluation outcome results for hospital inpatient psychiatric services provided at other facilities owned or operated by the applicant in Florida and other states. The data shall exclude patient specific information. Rule 10-5.011(1)(o)9.e., imposes a similar additional requirement in applications from providers seeking more beds: A summary description of any treatment outcome evaluation of the hospital inpatient general psychiatric services provided at the facility for which additional beds are requested, for children, adolescents or adults as applicable to the facility for the 12-month period ending six months prior to the beginning date of the quarter of the publication of the fixed bed need pool. The purpose of these requirements, according to HRS, is to insure that hospitals will know whether its patients are better off when they leave than when they were admitted to the program. Most hospitals have such knowledge. The terms, "outcome determination", "summary evaluation outcome results", "summary description of treatment outcome evaluation" and "overall program evaluation of treatment outcomes", are nowhere defined in the proposed rules, and the department intends to leave to each applicant or provider the methodology for determining whether its patients are "better off" for having been in its program. Hospitals do not routinely evaluate their patients after discharge and such follow up would be difficult and costly. Most hospitals do, however, establish a treatment plan upon admission, continue to review and revise that plan as needed throughout treatment, and determine the patients' readiness for discharge based on the goals successfully attained. This is the process described by Florida Hospital's Center of Psychiatry Administrative Director. The rules require no more than a description similar to that provided by Florida Hospital. The rules set no standards and do not dictate that follow- up of discharged patients be accomplished, even though post discharge evaluation may be of value and is generally accepted as the best tool for measuring treatment effectiveness. The measurement of treatment outcome is an inexact process and relies on a series of subjective standards which need to be described. HRS does not intend to set those standards and, other than have its applicants demonstrate that a process is in place, the agency has no idea how the required information will impact its CON review. Without definitions and standards, the agency will have no way of comparing one applicant's information with another's. Without specificity and more guidance the rules fail to apprise the applicant of what is required and will provide no meaningful information to the agency in its CON review function. Miscellaneous Provisions The Non-Physician Director. The proposed definition of "Hospital Inpatient General Psychiatric Services" in Rule 10-5.011(1) (o)2.1. includes services provided under the direction of a psychiatrist or clinical psychologist In drafting this definition, agency staff relied on advice from experts at their workshops and on advice from the agency's own Alcohol, Drug Abuse and Mental Health Program Office, to the effect that professionals, other than physicians, are qualified to direct the units. Interpretation and Application. It is not the intention of HRS that its rules be interpreted to override good medical practice or the sound judgement of treating physicians. Thus, the rules would not prohibit stabilization of a patient who is presented to the emergency room of a hospital without a CON for substance abuse or psychiatric services. Stabilized Alzheimers patients may be housed in nursing homes. Nor do the rules prohibit or subject to sanctions the occasional admission of a psychiatric or substance abuse patient to a non-substance abuse or psychiatric bed so long as this occurs infrequently in a hospital without psychiatric or substance abuse programs. "Scatter" beds are not eliminated. Those beds would continue to be licensed as acute-care beds, as they would not be considered part of an organized program, with staff and protocols, to provide psychiatric or substance abuse services. Proposed rule 10-5.011(1)(o)4.h.(v) provides that applicants for IRTPs for children and adolescents seeking licensing as a specialty hospital must provide documentation that the district's licensed non-hospital IRTPs do not meet the need for the proposed service. The department is not seeking specific utilization data in this regard, as such is not available. General information on the availability of alternatives to inpatient hospital services is obtainable from local health councils and mental health professionals in the community. Quarterly Reports. Proposed rule 10-5.011(1)(o)10. requires: Facilities providing licensed hospital inpatient general psychiatric services shall report to the department or its designee, within 45 days after the end of each calendar quarter, the number of hospital inpatient general psychiatric services admissions and patient days by age and primary diagnosis ICD-9 code. The Health Care Cost Containment Board (HCCCB) is already collecting similar quarterly data from providers. The reporting system is being updated and improved but in the meantime HRS is experiencing problems with the type and accuracy of the data it receives from HCCCB. One problem is that HCCCB collects its data with regard to all discharges in a psychiatric or substance abuse diagnostic category, whereas HRS is interested only in data from a psychiatric or substance abuse program. Until the system improves, HRS needs the information it seeks from the providers in order to plan and apply the need methodology. The agency intends to designate local health councils to collect the data and has already worked with them to set up a system. If reports provided to the HCCCB comply with the proposed requirement, HRS has no problem in receiving a duplicate of those reports. The Economic Impact Statement Pursuant to Section 120.54(2), F.S., HRS prepared an economic impact statement for the proposed rule. It was authored by Elfie Stamm, a Health Services and Facilities Consultant Supervisor with HRS. Ms. Stamm has a Masters degree in psychology and has completed course work for a Ph.D. in psychology. She has been employed by HRS for 13 years, including the last ten years in the Office of Comprehensive Health Planning. She is responsible for developing CON rules, portions of the state health plan, and special health care studies. It was impossible for Ms. Stamm to determine how the rule could impact the public at large. The economic impact statement addresses generally the effect of abolishing the distinction between long and short term services and acknowledges that the rule will increase competition among short term service providers. The impact statement also addresses a positive impact on current long term providers.
The Issue Whether certain employees of Respondent, who provided services to Medicaid recipients, met the prior work experience requirement to be certified as targeted case managers ("TCMs").1/ The nine disputed employees are identified in the Joint Prehearing Stipulation as Arian Melgarejo, Isis Lopez, Sadaiky Morejon, Karen Cuellar, Elisa Alonso Knapp, Ilineis Gonzalez Torres, Andres Gutierrez, Ana Sarai Llanes, and Berto Mirabal Lopez.
Findings Of Fact This case involves a Medicaid audit by AHCA of Access, which relates to dates of service from January 1, 2013, through December 31, 2014 ("audit period"). During the audit period, Access was an enrolled Medicaid provider and had a valid Medicaid provider agreement with AHCA, Medicaid Provider No. 004073400. As an enrolled Medicaid provider, Access was subject to the duly-enacted federal and state statutes, regulations, rules, policy guidelines, and Medicaid handbooks incorporated by reference into rule, which were in effect during the audit period. The AHCA Bureau of Medicaid Program Integrity ("MPI"), pursuant to its statutory authority, conducted an audit of Medicaid claims paid to Access for services to Medicaid recipients. AHCA issued an FAR dated January 4, 2017, MPI Case ID No. 2016-0006148, alleging that Access was overpaid $738,890.52 for certain services that in whole or in part are not covered by Medicaid. In addition, the FAR informed Access that AHCA was seeking to impose a fine of $147,778.11 as a sanction for violation of Florida Administrative Code Rule 59G-9.070(7)(e) and costs pursuant to section 409.913(23), Florida Statutes. The overpayment and sanction amounts sought by AHCA were amended post-FAR to $526,500.11 and $105,300.02. AHCA is designated as the single state agency authorized to make payments for medical assistance and related services under Title XIX of the Social Security Act. This program of medical assistance is designated the "Medicaid Program." See § 409.902, Fla. Stat. AHCA has the responsibility for overseeing and administering the Medicaid program for the State of Florida, pursuant to section 409.913. The Handbook requires that, in order to be certified as a TCM, an applicant must "have a minimum of one year of full time or equivalent experience working with adults experiencing serious mental illness." The Handbook also requires, via the completion and retention of Appendix H, that the provider certify that all of the requirements to be a TCM have been met. Appendix H must be signed by the provider administrator, the case manager, and the case manager's supervisor. There are no AHCA rules or any agency guidance as to exactly what type of work experience with these individuals is required. TCM services include things like coordinating transportation services, obtaining medical records to give to a provider or locating a new provider that may be closer to a recipient's home, things that are not clinical in nature, but which are beyond a recipient's ability to do or his family's ability to assist them with. In fact, Medicaid will not reimburse mental health TCM services for the provision of direct therapeutic, medical, or clinical services. Significantly, the Handbook does not require a provider to secure or maintain an applicant's resume, reference letters, or any particular documentation reflecting work history, nor does it specify who must be contacted to verify prior employment or indicate references need to be contacted at all. The one year of experience does not have to come from an applicant's most recent employer, or even one individual employer. AHCA provides no webinars or training for providers on how to check the work history of an applicant. However, AHCA contends that a provider cannot, in good faith, certify a case manager without verifying that the employee possessed the necessary experience with the target population. AHCA's Audit Procedure Robi Olmstead, an Agency Administrator over the Practitioner Unit at the Bureau of MPI, testified regarding her experience and her supervisory role in the audit of Access. Ms. Olmstead explained that the instant case against Access was opened based on "an analysis . . . from our data detection unit identifying a high number of services billed and high utilization by this provider of targeted mental health . . . case management services." Ms. Olmstead opened the audit, and assigned the matter to Stephanie Gregie, a Medicaid program health care analyst, who obtained a list of claims for 35 random recipients from AHCA's cluster sample program. After the sample was obtained, AHCA then requested the records of the sample recipients from Access. Ms. Gregie requested detailed documentation from Respondent via a Request for Records. The Request for Records included Document Organizational Guidelines. The guidelines requested that Access provide, inter alia, employment applications and/or resumes and evidence of employment background checks. Ms. Gregie determined that the employees at issue all met the regulatory educational requirement. However, she was concerned that the TCMs in dispute lacked the prerequisite experience working with the target population. Upon review of the records provided by Access, Ms. Gregie was disturbed that some job titles listed on the applications or resumes seemed inconsistent with listed job duties. According to Ms. Gregie, the prior work history of the TCMs was not thoroughly "certified" because the reference forms completed by Access' owner, Marieta Garcia de Porto, did not identify the dates of employment, the name of the employer which she contacted, the job title of the individual who verified past employment, or additional details of the conversation. Further, the reference checks generally seemed insufficient to Ms. Gregie because of her belief that the best reference check is through a former employers' human resources department rather than from past supervisors or co-workers. Ms. Gregie was also suspicious of the veracity of the reported work histories because several employees had reference letters signed by different people but which were notarized by the same individual. Some of the reference letters had similar, if not identical, language. Also, many of the employees purportedly had their references checked the day before or the day of hiring. Due to her concerns regarding the certifications provided by Access, Ms. Gregie "did something we typically wouldn't normally do, and that is I developed a verification process in [an] attempt to determine whether the employees were, in fact--did, in fact, have the required experience, and I began to document my own verifications of the employees' work experience with their prior employers." Tr. 48/5-13. Ms. Gregie created a worksheet to document her attempts at employment verification for the TCMs. Ms. Gregie requested additional documentation from Access, which was provided, and she attempted to verify those documents as well. Access' Response Ms. Garcia, as the owner of Access, is also the clinical director and the supervisor of its TCMs. Ms. Garcia, who is a Cuban immigrant, obtained her degree in psychology in Cuba and her master's degree in the United States. She is a licensed mental health counselor. Ms. Garcia had a five-year course of study in Cuba, which included a practicum every semester working with a targeted mental health population and required a thesis. However, her degree was equated to a bachelor's degree in the United States. In Cuba, to begin working as a psychologist, a new graduate does not provide a resume. They only provide a transcript and complete an interview. Ms. Garcia hired the TCMs for Access, whose work histories are in dispute. Ms. Garcia explained that the Handbook does not provide any direction as to how to verify or document the verification of prior work experience for TCMs. She used the process used when she was first hired as a TCM in 2005. She asked each applicant for a resume or job application and three letters of reference, which she maintained in their employment files. Although the Handbook does not require reference letters or notarization, she chose to ask that these letters be notarized because when she immigrated to the United States, all of her documents were required to be notarized. Ms. Garcia then contacted the individuals who signed the letters to verify employment. The TCMs hired by Ms. Garcia were primarily doctors and nurses from Cuba. It did not surprise her that their resumes looked similar because these people worked together in Cuba and likely worked on crafting their resumes together because the use of resumes is not common in the medical profession in Cuba. Further, Ms. Garcia is not a lawyer or a notary, and it did not cause her any concern that the same notary was used for reference letters from different employers. Additionally, three of the TCMs (Arain Melgarejo, Sadaiky Morejon, and Andres Gutierrez) were referred to Ms. Garcia by Yoandes Fuentes, a medical doctor who was employed by Access as a TCM. Dr. Fuentes previously supervised these TCMs at a medical mission in Venezuela as part of a Cuban/Venezuelan program that exchanged the services of Cuban medical professionals for Venezuelan oil. Dr. Fuentes, who was a trusted Access employee, personally verified the one year or more employment of these three TCMS with the adult mental health population in Venezuela. Both Ms. Morejon and Mr. Gutierrez were medical doctors in Cuba. Ms. Morejon is also married to Dr. Fuentes. Based upon the applications/resumes and reference letters submitted and verified by Ms. Garcia, she believed the TCMs all had the requisite work experience and both the TCMs and she certified this on Appendix H for each of the nine TCMs in dispute. The Experience of the Disputed TCMs Arian Melgarejo As discussed above, Arian Melgarejo was referred to Ms. Garcia by Dr. Fuentes. Mr. Melgarejo obtained a doctoral degree in dental surgery in Cuba in 2007. He is not licensed in the United States as a dentist. This makes him subject to the three-year work requirement applicable to TCM applicants without a degree in a "human services" field. Dr. Fuentes supervised Mr. Melgarejo at the Venezuelan medical mission, Comprehensive Diagnostic Center ("Comprehensive"), from October 2009 through May 2011. Comprehensive provided medical and mental health services to poor people in rural areas of Venezuela. Denia Lazo-Santalla, who is employed by Access as a TCM supervisor, also testified regarding the work at Comprehensive. As a medical doctor from Cuba, Ms. Lazo-Santalla also worked at the mission and is familiar with its workload. Comprehensive has locations in rural areas all over Venezuela. They are generally the sole providers of health care in these areas, so any of the physicians or, in Mr. Melgarejo's case, a dentist, working there would see a significant population of adults with serious mental illnesses. Mr. Melgarejo's employment records include a reference letter from Katia Avila Garcia, who acknowledged working with Mr. Melgarejo at the mission. Mr. Melgarejo's resume also lists two employment stints at Isidro de Armas Psychiatric Hospital in Cuba from January 2000 through September 2002, and from September 2007 through September 2009. A printout of Isidro de Armas Psychiatric Hospital on the InfoMED website shows that its mission is providing specialized medical care (treatment and rehabilitation) to chronic psychotic patients. Ms. Lazo-Santalla testified that, as a medical doctor in Havana, Cuba, she was familiar with Isidro de Armas Psychiatric Hospital and that it is a huge facility that provides all kinds of services, including dental care, to psychiatric patients. Ms. Gregie disputes that Mr. Melgarejo meets the three- year experience requirement based upon her own "verification" process. According to Ms. Gregie, dentists do not typically provide mental health services. She contacted the practice administrator at SOMA Medical Center ("SOMA"), which was identified on Mr. Melgarejo's resume as his last place of employment. Mr. Melgarejo claims to have worked there as a social worker, "[a]ssisting chronic patients who were diagnosed with psychiatric illnesses to receive the proper treatment and link them with outside recommended services." According to Ms. Gregie, she was told that SOMA does not employ social workers and that Mr. Melgarejo never worked there. However, even discounting the time alleged worked at SOMA, Mr. Melgarejo's experience with adult mental health patients was verified by Dr. Fuentes. Further, Ms. Gregie made no effort to independently verify his employment at Comprehensive or Isidro de Armas Psychiatric Hospital. Sadaiky Morejon Sadaiky Morejon was a medical doctor in Cuba. Ms. Morejon and Dr. Fuentes are husband and wife, and they worked together in almost every place. This accounts for the similarity in resumes. According to her resume, Ms. Morejon worked at the mission in Venezuela, Comprehensive, from August 2007 through May 2011. As discussed herein, she worked with and was supervised during part of this time by Dr. Fuentes, who referred her to Ms. Garcia for employment. A reference letter from Dr. Fuentes, dated February 22, 2017, provides extensive detail of Ms. Morejon's work during her time at the mission in Venezuela. According to her resume, Ms. Morejon also worked at Psychiatric Clinic of Cinefuegos in Cuba from April 2007 to August 2007. A printout of the profile for Psychiatric Clinic of Cienfuegos from the InfoMED website states that the hospital has a mission of providing specialized medical care (treatment and rehabilitation) for chronic psychotic patients. Ms. Morejon's resume lists her most recent employment at Miami Community Health Center. Ms. Gregie was unable to locate a business by that name. In case Ms. Morejon confused the name with Miami Behavioral Health Center, now known as Banyan Health Center ("Banyan"), Ms. Gregie contacted Banyan but was told that Ms. Morejon was not employed there. However, Ms. Morejon's file includes a 2013 reference letter from her former supervisor, Dr. Ernesto Fernandez, which reflects that she worked for him at the address she listed as "Miami Community Health Center." Ms. Gregie discounted this reference because it did not include the specific dates of employment or a detailed description of job duties. Further, Ms. Gregie noted that Ms. Morejon's resume is "highly similar" to that of Dr. Fuentes. She found it improbable that they would have the same career path with the same employers. Apparently, she did not account for the fact that they are husband and wife. Nor did Ms. Gregie attempt to verify Ms. Morejon's employment in Cuba or Venezuela. Berto Mirabal Lopez Berto Mirabal Lopez obtained a bachelor's degree in nursing from the University of Havana, Cuba, in 2009. Mr. Lopez worked as a charge nurse in the crisis stabilization unit at Hospital Miguel Enriquez in Havana, Cuba, from December 2009 through April 2011. One of his reference letters was from Marleny Almeida dated October 12, 2013. After the FAR was issued, Ms. Garcia contacted Ms. Almeida and told her that Mr. Lopez was not approved in the Medicaid audit. Ms. Almeida authored a second reference letter dated February 14, 2017, that provided more specific detail of the work that Mr. Lopez did as a nurse in the crisis stabilization unit at Miguel Enriquez Hospital with the mentally ill. Miguel Enriquez Hospital is a large hospital in Havana with multi-specialties, including psychiatric and mental health services. Mr. Lopez' employment there satisfies the one-year work requirement. Mr. Lopez' resume also states that he worked as a mental health technician at Citrus Health Network from 2011 until the time of his application. However, the Citrus Human Resources Department told Ms. Gregie they had no record of him working there. She also found the three reference letters provided not credible because they do not specify where these individuals worked with Mr. Lopez, are similar in format, and, although written on different dates, were all signed by the same notary on the same date. Ms. Gregie did not attempt to verify Mr. Lopez' employment in Cuba. Isis Lopez Isis Lopez was personally known to Ms. Garcia prior to Ms. Lopez' hiring because they studied psychology together in Cuba. They are also family friends. Ms. Lopez' application reflects that she worked at Centro de Orientacion y Atencion Psicologica ("COAP") at the University of Havana, Cuba from 2000 to 2008. COAP is a center for psychological counseling. Ms. Garcia was personally familiar with Ms. Lopez' work experience at COAP. One of the reference letters is from Alain Abreau, verifying that Ms. Lopez worked as a counselor under his supervision at COAP from January 2000 through March 2001. Her resume indicates she worked there from 2000 to 2008, and Mr. Abreau acknowledged that she continued to work there, but no longer under his supervision. Ms. Gregie attempted to speak with Mr. Abreau but Mr. Abreau hung up on her after she announced herself, and despite immediately calling back, she was only able to leave a voicemail requesting a return call, which did not occur. Ms. Garcia knows Mr. Abreau personally because she used to work with him at Miami Behavioral Health Center (now called "Banyan") when she was employed as a TCM in 2005. In February 2017, Ms. Garcia called Mr. Abreau and told him that Ms. Lopez was not approved by Medicaid, and that is why Mr. Abreau wrote the detailed reference letter. Mr. Abreau was told by Ms. Garcia that he would receive a call from AHCA to verify, and he did. Mr. Abreau told Ms. Garcia that the call broke off and, when Mr. Abreau called the same number back, it was a general line for AHCA and he did not know who to ask for. Mr. Abreau did not get a voicemail from Ms. Gregie. According to Ms. Lopez' resume, she worked from August 2011 until August 2012 as a TCM at Miami Behavioral Health Center. Ms. Gregie contacted Ana Marie Rodriguez in the Human Resources Department at Banyan and was told that Ms. Lopez actually only worked there for two months. Ms. Rodriguez signed and returned a form confirming this. Ms. Gregie questions why Ms. Lopez would make a misrepresentation about her employment at Banyan if she in fact already had the requisite experience from her employment in Cuba. Although it is understandable that these interactions with Mr. Abreau and Banyan would raise Ms. Gregie's suspicion, it does not invalidate either Ms. Garcia's personal knowledge of Ms. Lopez' course of study and her work at COAP, or the letter provided by Mr. Abreau, verifying more than a year of experience working with the target population. Elisa Alonso Knapp Elisa Alonso Knapp has a bachelor's degree in psychology and a master's degree in human resource management. Her course of study in Cuba to obtain her psychology degree would have included work experience with the target population. Ms. Knapp's resume listed her most recent place of employment as New Life Staffing, Inc. The resume recites her work there as including "case management assistance to adults and elderly with chronic mental disorders." Staffing agencies generally do not provide direct mental health services. The other positions on her resume are all human resource positions. Access' Employment Reference Check dated May 12, 2014, listed only three names, three telephone numbers, and three different years of experience. Ms. Knapp listed Oscar Villegas Flores as a reference. When Ms. Gregie spoke with Mr. Villegas Flores, he admitted that Ms. Knapp was not a case manager and did not provide TCM services. Post-FAR, Access also offered a letter from Reinaldo Carnota in support of Ms. Knapp's experience. The letter stated that Ms. Knapp worked as a psychotherapist at Sanatorio Los Cocos, Santiago de las Vegas, Cuba, from July 1995 to December 1997. When Ms. Gregie spoke with Mr. Carnota, he was unable to remember the name of the place of employment where he worked with Ms. Knapp and was "evasive." Ms. Knapp also provided reference letters from Emeterio Santovenia, Lissett Nardo, and Ana-Elvy Hernandez Cordero. According to Ms. Cordero, Ms. Knapp worked as a volunteer psychologist from 2009 to 2010 at Docent Polyclinic in Havana, Cuba, working with elderly patients suffering psychiatric disorders. Ms. Nardo stated that Ms. Knapp worked as a volunteer at the Psychology College of Havana University assisting elderly mental health patients in accessing services. Ms. Gregie did not contact these three additional references. Ms. Knapp attested to her one year of required experience on the Appendix H form. Although it is clear that Ms. Knapp did not have recent psychology experience, her training and letters of reference reflect that she had worked with the target population for at least one year. Karen Cuellar Karen Cuellar obtained a bachelor's degree in psychology in Cuba. Her resume states that she worked at Community House in Havana as a mental health counselor from June 2006 through September 2008. This is supported by a notarized reference letter from Lissette Gallardo which states that Ms. Cuellar worked with adults with severe mental disorders. Ms. Cuellar's resume lists her most recent employment as the Chrysalis Center as a "targeted case manager." However when Ms. Gregie contacted Chrysalis Center she was told that they do not employ case managers, they do not provide mental health services, and that Ms. Cuellar was never employed by them. Although this deception places the validity of Ms. Cuellar's resume in doubt, Ms. Gregie did not attempt to verify Ms. Cuellar's employment with Community House which, standing alone, meets the experience requirement. Ana Sarai Llanes Ana Sarai Llanes holds a master's degree in psychology from Cuba. According to Ms. Garcia, Ms. Llanes' course of study required a practicum that meets the requirements of working with the target population. Ms. Garcia also indicated she personally knew Ms. Llanes. Ms. Llanes' resume listed her last "Experience" as volunteer community work for Sion Baptist Church. The resume further cited this as case management work, including "[a]ssisting elderly and adults to access community resources." Ms. Gregie determined Ms. Llanes was ineligible as she was unable to locate the Sion Baptist Church in her research. She also testified that in her experience, she never heard of voluntary case management services or professional mental health services being provided at a church. She further stated that the services listed on the resume, such as "DCF, LIHEAP, Logisticare, and housing applications" are the exact services Respondent provides to all recipients which led her to conclude this experience was fabricated. Post-FAR, Access offered a letter of reference from Moriama Alfonso. Ms. Garcia personally knows Ms. Alfonso, who was Ms. Llanes' supervisor at COAP in Havana. Ms. Gregie spoke with Ms. Alfonso via an interpreter and determined the letter was non-credible because Ms. Alfonso could not remember the name of the employer where she worked with Ms. Llanes. Ms. Gregie also determined, based upon her own experience in the mental health field, that Ms. Alfonso's statement that Ms. Llanes provided eight hours per day of direct mental health counseling was not plausible. Ms. Gregie also assumed that COAP was a "cultural center" and did not provide mental health services. However, Ms. Gregie did not attempt to contact COAP or the other references provided by Ms. Llanes regarding her volunteer work with the mentally ill for the "ZunZun" project in Cuba which would provide more than a year of working with the targeted population. Ilineis Gonzalez Torres Ilineis Gonzalez Torres has a doctor of medicine degree from Cuba. In order to obtain her degree, Mr. Torres would have completed a six-month work training program in psychiatry. Ms. Garcia believed Ms. Torres was qualified based on her work as a general doctor at Policlinic "Victoria de Giron" in Havana, Cuba, from 2007 to 2010. "Policlinics" in Cuba are multidisciplinary facilities that include mental health services. A web-profile of Policlinic Victoria de Giron from the InfoMed confirms that mental health services are included. Ms. Garcia also reached out to Dr. Soto for a letter of reference. Dr. Soto verified that she worked with Ms. Gonzalez part-time for a year on a clinical trial regarding patients taking anti-depressants. Ms. Torres also worked from 2004 to 2006 at the COAP center as evidenced by her resume and the reference letter from Idania Garcia Barrios. This is the same facility that Ms. Lopez worked at. Ms. Gregie contacted Ms. Torres' most recently listed employer, Med-Care. Ms. Gregie was told that Ms. Torres worked there as a medical assistant rather than as a "social worker," which is listed on her resume. Ms. Gregie researched Med-Care on-line and determined it provided medical services to the general public, not mental health or TCM services. Ms. Gregie did not attempt to verify Ms. Torres' work in Cuba. i. Andres Gutierrez Andres Gutierrez is a medical doctor from Cuba who was referred to Access by Dr. Fuentes. His medical training would have included a six-month work program in psychiatry with the target population. From 2006 through 2012, Mr. Gutierrez worked at Comprehensive. According to Ms. Gregie, there is nothing to verify this employment or that it complies with the one year of full-time or equivalent experience working with adults experiencing serious mental illness. However, his employment in Venezuela working with patients with mental illness was verified by Dr. Fuentes. Dr. DeLeon is listed as Mr. Gutierrez' supervisor at Miami Beach Medical Group. He provided a letter of reference for Mr. Gutierrez. Ms. Gregie contacted the Human Resources Department at Miami Beach Medical Group and was told that Mr. Gutierrez was not a "case worker" but rather in Quality Assurance where he reviewed medical records. Also, the dates of employment were different than listed on the resume. On this basis, Ms. Gregie decided Mr. Gutierrez' resume was fraudulent. Ms. Gregie did not contact Dr. DeLeon or the other individuals who provided Mr. Gutierrez with a letter of reference.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order incorporating the terms of this Recommended Order as follows: All of the disputed employees shall be allowed, and no Medicaid overpayments shall be based on their failure to have the requisite work experience. Petitioner will not apply an administrative sanction against Respondent. Because AHCA is not the prevailing party in this action, it shall not be entitled to recover any of its costs. DONE AND ENTERED this 11th day of April, 2018, in Tallahassee, Leon County, Florida. S MARY LI CREASY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of April, 2018.
The Issue The issue for determination is whether Respondent was reimbursed by the Medicaid program for non-covered behavioral health services and was, therefore, overpaid by the Medicaid program in the amount of $17,506.76, as set forth in Petitioner's agency action letter dated March 31, 2011.
Findings Of Fact Lorraine A. Mitchell, Ph.D., LCSW, has certifications, among others, in trauma, substance abuse, and sex therapy. She treats Medicaid patients who, as described by her, other practitioners might turn-away. Dr. Mitchell became an authorized Medicaid provider of community behavioral mental health services to Medicaid recipients. As a community behavioral mental health services provider, Dr. Mitchell was issued individual Medicaid provider number 768303100 and was a Type 07 provider. At all times material hereto, Dr. Mitchell had a valid Medicaid Provider Agreement with AHCA (Agreement). The Community Behavioral Health Services Coverage and Limitations Handbook, effective October 2004, hereinafter Handbook, provides in Chapter 1 that community behavioral health services include "mental health and substance abuse services provided to individuals with mental health, substance abuse and mental health and substance abuse co-occurring disorders for the maximum reduction of the recipient's disability and restoration to the best possible functional level." The Handbook further provides, among other things, (a) that Type 07 providers are the Comprehensive Behavioral Health Assessment Provider and Specialized Therapeutic Foster Care Provider; (b) that a treating licensed practitioner of the healing arts (LPHA) must enroll as Provider Type 07 and must be affiliated with a group provider in order to be enrolled as an individual Provider Type 07; and (c) that a LPHA includes a clinical social worker, mental health counselor, marriage and family therapist, or psychologist. The Handbook was incorporated by reference into Florida Administrative Code Rule 59G-4.050, Community Behavioral Health Services. Dr. Mitchell was advised by AHCA that she was required to be affiliated with a group practice. For a period of time, Dr. Mitchell was affiliated with the Trauma Resolution Center, hereinafter TRC. The evidence demonstrates that some Medicaid payments for services rendered were paid to TRC and, in turn, TRC paid Dr. Mitchell; and that some Medicaid payments were paid directly to Dr. Mitchell. Sometime after her affiliation with TRC, Dr. Mitchell formed Mitchell and Associates. As Mitchell and Associates, the same services were provided and the same Medicaid provider number and provider type were used by Dr. Mitchell. As a result, Dr. Mitchell billed under the name of Mitchell and Associates, but continued to use her individual Medicaid provider number (768303100) and provider type (Provide Type 07). AHCA audited certain of Mitchell and Associates' Medicaid claims for the community behavioral mental health services rendered. AHCA's audit focused only on services for which billing by Mitchell and Associates, as a Provider Type 07, was not permitted. A Provider Type 07 was only authorized to bill for Comprehensive Behavioral Health Assessment services (code H0031 HA) and Specialized Therapeutic Foster Care services (codes S5145, S5145 HE, and S5145 HK). AHCA determined from the audit that, for services in 2009 and 2010, Mitchell and Associates billed for non-covered services for a Type 07 provider (services beginning on February 4, 2009, and ending on August 10, 2010, for codes H2019 HR and H2019 HO) in an amount exceeding $17,506.76. No dispute exists that, during 2009 and 2010, Mitchell and Associates received payment for services to Medicaid recipients, including for the services that are being disputed. Further, no dispute exists as to whether the services were provided or as to the medical necessity of the services provided. The evidence demonstrates that, for the audit of services rendered by Mitchell and Associates during 2009 and 2010, Mitchell and Associates billed for non-covered behavioral health services (services beginning on February 4, 2009, and ending on August 10, 2010, for codes H2019 HR and H2019 HO), and received payment for same in an amount exceeding $17,506.76. Further, the evidence demonstrates that Mitchell and Associates was overpaid by the Medicaid program in an amount exceeding $17,506.76 for the non-covered behavioral health services. AHCA seeks only the overpayment amount of $17,506.76. No dispute exists as to the accuracy of the formula used to calculate the total overpayment. At all times material hereto, Dr. Mitchell attended training sessions presented by persons, who processed Medicaid billings, in order to better understand the billing aspect as Medicaid providers. Further, Dr. Mitchell was in contact with AHCA's staff, who assisted Medicaid providers, in order to obtain a better understanding of the Medicaid provider process for Type 07 providers. The evidence demonstrates that Dr. Mitchell believed that she was billing correctly and was billing for covered behavioral health services. AHCA considers the billing by Mitchell and Associates to be a mistake, not fraud. The evidence demonstrates that the billing by Mitchell and Associates was not fraud, but was a mistake. On September 27, 2010, Mitchell and Associates was issued a group Medicaid number. Dr. Mitchell began billing under the group Medicaid provider number for services rendered.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order: Finding that Lorraine A. Mitchell and Associates, P.A., received overpayments from the Medicaid program for non-covered behavioral health services in 2009 and 2010 (for services beginning on February 4, 2009, and ending on August 10, 2010, for codes H2019 HR and H2019 HO) in the amount of $17,506.76; and Requiring Lorraine A. Mitchell and Associates, P.A., to repay the overpayment of $17,506.76, plus interest at ten percent interest from March 31, 2011, in accordance with an agreed upon repayment schedule. S DONE AND ENTERED this 17th day of August, 2011, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of August, 2011.
Findings Of Fact The application and project On October 15, 1986, Respondent, Florida Residential Treatment Centers, Inc. (FRTC), filed a timely application with the Respondent, Department of Health and Rehabilitative Services (Department), for a certificate of need to construct a 60-bed specialty hospital to be licensed as an intensive residential treatment program for children and adolescents in Broward County, Florida. On March 11, 1987, the Department proposed to grant FRTC's application, and petitioners, Florida Psychiatric Centers (FPC) and South Broward Hospital District (SBHD), timely petitioned for formal administrative review. FRTC is a wholly-owned subsidiary of Charter Medical Corporation (Charter). Currently, Charter owns, operates or has under construction 85 hospitals within its corporate network. Of these, 13 are general hospitals, and 72 are psychiatric hospitals. Notably, Charter now operates residential treatment programs in Newport News, Virginia, Provo, Utah, and Mobile, Alabama; and, is developing such a program in Memphis, Tennessee. Within the State of Florida, Charter operates psychiatric hospitals in Tampa, Jacksonville, Fort Myers, Miami, and Ocala. In connection with the operation of these facilities, Charter has established satellite counseling centers to screen patients prior to admission and to provide aftercare upon discharge. Of 20 such centers operated by Charter, one is located in Broward County and two are located in Dade County. The facility proposed by FRTC in Broward County (District X) will treat seriously emotionally disturbed children and adolescents under the age of 18. The patients admitted to the facility will have the full range of psychiatric diagnoses, with the probable exception of serious mental retardation and severe autism. FRTC will not treat patients who present themselves with a primary substance abuse diagnosis, nor will it admit patients who are actively dangerous. This distinguishes FRTC from an acute psychiatric hospital where actively dangerous patients requiring immediate medical intervention are often admitted. The anticipated length of stay at FRTC will vary depending upon the patient's responsiveness to treatment, but is reasonably expected to range between 6 months to 2 years, with an average of 1 year. The treatment programs to be offered at FRTC will be based upon a bio- psychosocial treatment model. This model assumes that the biological component of a patient's condition has been stabilized and that psychiatric medication will be administered solely to maintain this stabilized condition. The social component of the model is designed to resolve problems in interpersonal, family and peer relationships through educational groups, psychiatric co-therapeutic groups and family group therapy. The psychological component focuses primarily on developing personal understanding and insight to guide the patient toward self-directed behavior. Among the therapies to be offered at FRTC are individual, family, recreational, group and educational. Group therapy will be designed to resolve interpersonal problems and relationships, and focuses primarily on building trust among group members. Some group therapy sessions will also cover specific issues such as sex education, eating disorders, self-image and social skills. The goal of recreational therapy will be to teach patients to play appropriately, showing them how to give, take and share, and to follow and to lead. Recreational activities will be available both on and off campus. The goal of occupational therapy will be to develop skills used in work. For a child whose work is school, this often involves using special education techniques. For teenagers, occupational therapy also develops work skills, and prepares them for vocational training or employment. Family therapy is crucial because the family is she core of child development. Families will be invited to spend days with their children at FRTC where they will learn behavioral management techniques, and participate in parent education activities and multifamily groups. The school component of the program includes development of an individualized educational plan for each child. School will be conducted 4-5 hours a day. FRTC will utilize the level system as a behavioral management tool This system provides incentives for learning responsibility for one's own behavior and for functioning autonomously. The typical progress of a patient at FRTC will be as follows. First, a team which includes a psychiatrist, social worker, psychologist and teacher will decide, based upon available information, whether admission is appropriate. If admitted, a comprehensive assessment will be conducted within 10 days, a goal- oriented treatment program will be developed for each patient, designed to remedy specific problems. Discharge planning will begin immediately upon admission. A case manager will be involved to assure that the treatment modalities are well-coordinated. Finally, FRTC will provide aftercare upon discharge. Should any FRTC patients experience acute episodes, they will be referred to acute care psychiatric hospitals with which FRTC has entered into transfer agreements. Likewise, patients who require other medical attention will be referred to appropriate physicians Consistency with the district plan and state health plan. While the local health plan does not specifically address the need for intensive residential treatment programs (IRTPs) for children and adolescents, it does contain several policies and priorities that relate to the provision of psychiatric services within the district. Policy 2 contains the following relevant priorities when an applicant proposes to provide a new psychiatric service: ... Each psychiatric inpatient unit shall provide the following services: psychological testing/assessment, psychotherapy, chemotherapy, psychiatric consultation to other hospital departments, family therapy, crisis intervention, activity therapy, social services and structured education for school age patients, and have a minimum patient capacity of 20 and a relationship with the community mental health center. Facilities should be encouraged to provide for a separation of children, adolescents, adults, and geriatric patient' where possible. Greater priority should be given to psychiatric inpatient programs that propose to offer a broad spectrum of continuous care. ... Applicants should be encouraged to propose innovative treatment techniques such as, complementing outpatient and inpatient services or cluster campuses, that are designed to ultimately reduce dependency upon short term psychiatric hospital beds. New facilities should be structurally designed for conducive recovery, provide a least restrictive setting, provide areas for privacy, and offer a wide range of psychiatric therapies. Applicants should be encouraged to offer intermediate and follow-up care to reduce recidivism, encourage specialty services by population and age, engage in research, and offer a full range of complete assessment (biological and psychological). Additionally, the local plan contains the following policies and priorities which warrant consideration in this case: POLICY #3 Services provided by all proposed and existing facilities should be made available to all segments of the resident population regardless of the ability to pay. Priority #1 - Services and facilities should be designed to treat indigent patients to the greatest extend possible, with new project approval based in part on a documented history of provision of services to indigent patients. Priority #2 - Applicants should have documented a willingness to participate in appropriate community planning activities aimed at addressing the problem of financing for the medically indigent. POLICY #4 Providers of health services are expected to the extent possible to insure an improvement of the quality of health services within the district. Priority #1 - Applicants for certificate of need approval should document either their intention or experience in meeting or exceeding the standards promulgated for the provision of services by the appropriate national accreditation organization. Priority #2 - Each applicant for certificate of need approval should have an approved Patient Bill of Rights' `as part of the institution's internal policy. POLICY #5 Specialized inpatient psychiatric treatment services should be available by age, group and service type. For example, programs for dually diagnosed mentally ill substance abusers, the elderly, and children, should be accessible to those population groups. Priority #1 - Applicants should be encouraged to expand or initiate specialized psychiatric treatment services. The FRTC application is consistent with the local health plan. FRTC's program elements and facility design are consistent with those mandated by the local plan for mental health facilities, and its proposal offers a wide range of services, including follow-up care. FRTC intends to provide a minimum of 1.5 percent of its patient day allotment to indigent children and adolescents, and will seek JCAH accreditation and CHAMPUS approval. The state health plan addresses services similar to those being proposed by FRTC, and contains the following pertinent policies and statements: Mental health services are designed to provide diagnosis, treatment and support of individuals suffering from mental illness and substance abuse. Services encompass a wide range of programs which include: diagnosis and evaluation, prevention, outpatient treatment, day treatment, crisis stabilization and counseling, foster and group homes, hospital inpatient diagnosis and treatment, residential treatment, and long term inpatient care. These programs interact with other social and economic services, in addition to traditional medical care, to meet the specific needs of individual clients. STATE POLICIES As the designated mental health authority' for Florida, HRS has the responsibility for guiding the development of a coordinated system of mental health services in cooperation with local community efforts and input. Part of that responsibility is to develop and adopt policies which can be used to guide the development of services such that the needs of Florida residents are served in an appropriate and cost effective manner. Policies relating to the development of mental health services in Florida are contained in Chapter 394 and Chapter 230.2317, F.S. The goal of these services is: '... reduce the occurrence, severity, duration and disabling aspects of mental, emotional, and behavioral disorders.' (Chapter 394, F.S.) '... provide education; mental health treatment; and when needed, residential services for severely emotionally disturbed students.' (Chapter 230.2317, F.S.) Within the statutes, major emphasis has also been placed on patient rights and the use of the least restrictive setting for the provision of treatment. 'It is further the policy of the state that the least restrictive appropriate available treatment be utilized based on the individual needs and best interests of the patient and consistent with optimum improvement of the patient's condition.' (Chapter 394.459(2)(b), F.S.) 'The program goals for each component of the network are'... 'to provide programs and services as close as possible to the child's home in the least restrictive manner consistent with the child's needs.' (Chapter 230.2317(1)(b), F.S.) Additional policies have been developed in support of the concept of a 'least restrictive environment' and address the role of long and short term inpatient care in providing mental health services for severely emotionally disturbed (SED) children. These include: 'State mental hospitals are for those adolescents who are seriously mentally ill and who have not responded to other residential treatment programs and need a more restrictive setting.' (Alcohol, Drug Abuse and Mental Health Program Office, 1982) 'Combined exceptional student and mental health services should be provided in the least restrictive setting possible. This setting is preferably a school or a community building rather than a clinical or hospital environment.' (Office of Children Youth and Families, 1984) 'Alternative, therapeutic living arrangements must be available to SED students in the local areas, when family support is no longer possible, so that they may continue to receive services in the least restrictive way possible.' (Office of Children Youth and Families, 1984) 'SED students should not be placed in residential schools or hospitals because of lack of local treatment resources, either educational or residential.' (Office of Children Youth and Families, 1984). * * * Sufficient funding for the development of residential treatment and community support is necessary if the state is to fulfill its commitment to providing services for long term mentally ill persons. These services provide, in the long run, a more humane and cost effective means of meeting the mental health needs of Florida residents. Community services have been shown to be effective in rapidly returning the majority of individuals to their productive capacity and reducing the need for costly long term, institutional mental health services. There is, therefore, a need to proceed as rapidly as possible with the development of publicly funded services in those districts which are currently experiencing problems resulting from gaps in services. * * * Services for Adolescents and Children An additional issue which has been identified as a result of increased pressures for development of hospital based programs is the need to differentiate between services for adults and those for children and adolescents. Existing policy supports the separation of services for children and adolescents from those of adults and requires the development of a continuum of services for emotionally disturbed children. The actual need for both long and short term inpatient services for children and adolescents is relatively small compared to that of adults but is difficult to quantify. Providers, however, continue to request approval for long and short term adolescent and children services as a means of gaining access to the health care market. Continued development of long and short term inpatient hospital programs for the treatment of adolescents and children is contrary to current treatment practices for these groups and is, therefore, inappropriate without local data to support the need for these services. Such development can contribute to inappropriate placement, unnecessary costs of treatment, and divert scarce resources away from alternative uses. In addition, the following pertinent goals are contained in the state health plan: GOAL 1: ENSURE THE AVAILABILITY OF MENTAL HEALTH AND SUBSTANCE ABUSE SERVICES TO ALL FLORIDA RESIDENTS IN A LEAST RESTRICTIVE SETTING. * * * GOAL 2: PROMOTE THE DEVELOPMENT OF A CONTINUUM OF HIGH QUALITY, COST EFFECTIVE PRIVATE SECTOR MENTAL HEALTH AND SUBSTANCE ABUSE TREATMENT AND PREVENTIVE SERVICES. * * * GOAL 3: DEVELOP A COMPLETE RANGE OF ESSENTIAL PUBLIC MENTAL HEALTH SERVICES IN EACH HRS DISTRICT. * * * OBJECTIVE 3.1.: Develop a range of essential mental health services in each HRS district by 1989. * * * OBJECTIVE 3.2.: Place all clients identified by HRS as inappropriately institutionalized in state hospitals in community treatment settings by July 1, 1989. RECOMMENDED ACTIONS: 3.2a.: Develop a complete range of community support services in each HRS district by July 1, 1989. * * * OBJECTIVE 3.3.: Develop a network of residential treatment settings for Florida's severely emotionally disturbed children by 1990. The FRTC application is consistent with the state health plan which emphasizes the trend toward deinstutionalization, and the importance of education, treatment and residential services for severely emotionally disturbed children and adolescents rather than the traditional approach of institutional placement. Deinstutionalization assures more appropriate placement and treatment of patients, and is less costly from a capital cost and staffing perspective. The FRTC application also promotes treatment within the state, and will assist in reducing out-of-state placements. Need for the proposed facility The Department has not adopted a rule for the review of applications for IRTPs, and has no numeric need methodology to assess their propriety. Rather, because of the paucity of such applications and available data, the Department reviews each application on a case by case basis and, if it is based on reasonable assumptions and is consistent with the criteria specified in Section 381.705, Florida Statutes, approves it. In evaluating the need for an IRTP, the Department does not consider other residential treatment facilities in the district, which are not licensed as IRTP's and which have not received a CON, as like and existing health care services because such facilities are subject to different licensure standards. Under the circumstances, the Department's approach is rational, and it is found that there are no like and existing health care services in the district. While there are no like and existing health care services in the district, there are other facilities which offer services which bear some similarity to those being proposed by FRTC. These facilities include short-term and long-term residential treatment facilities, therapeutic foster homes and therapeutic group homes. These facilities are, however, operating at capacity, have waiting lists, and do not in general offer the breath or term of service proposed by FRTC. There are also short-term and long-term psychiatric hospitals within the district that include within their treatment modalities services similar to those proposed by the applicant. The short-term facilities are not, however, an appropriate substitute for children and adolescents needing long-term intensive residential treatment and neither are the long-term facilities from either a treatment or cost perspective. Notably, there are only 15 long term psychiatric beds in Broward County dedicated to adolescents, and none dedicated to children. In addition to the evident need to fill the gap which exists in the continuum of care available to emotionally disturbed children and adolescents in Broward County, the record also contains other persuasive proof of the reasonableness of FRTC's proposal. This proof, offered through Dr. Ronald Luke, an expert in health planning whose opinions are credited, demonstrated the need for and the reasonableness of FRTC's proposed 60-bed facility. Dr. Luke used two persuasive methodologies which tested the reasonableness of FRTC's 60-bed proposal. The first was a ratio of beds per population methodology similar to the rule methodology the Department uses for short-term psychiatric beds. Under this methodology, approval of FRTC's proposal would result in 25.47 beds per 100,000 population under 18 in District X. This ratio was tested for reasonableness with other available data. Relevant national data demonstrates an average daily census of 16,000 patients in similar beds. This calculates into 24.01 beds per 100,000 at a 90 percent occupancy rate and 25.93 beds per 100,000 at an 85 percent occupancy rate. Additionally, Georgia has a category of beds similar to IRTP beds. The Georgia utilization data demonstrates a pertinent ratio of 27.05 beds per 100,000 population. The second methodology used by Dr. Luke to test the reasonableness of FRTC's proposal, was to assess national utilization data for "overnight care in conjunction with an intensive treatment program." The national census rate in such facility per 100,000 population for persons under 18 was 21.58. Multiplying such rate by the district population under 18, derives an average daily census of 52. Assuming an optimal occupancy rate of 85 percent, which is reasonable, this demonstrates a gross need for 61 IRTP beds in District X. Dr. Luke's conclusions not only demonstrate the reasonableness of FRTC's proposal, but corroborate the need for such beds within the district. This proof, together with an analysis of existing or similar services, existing waiting lists for beds at similar facilities, and the placement by the Department of 28 children from Broward County outside the county in 1986 for long-term residential treatment, demonstrates the need for, and reasonableness of, FRTC's proposal. Quality of care The parties have stipulated that Charter and its hospitals provide quality short and long term psychiatric care. All of Charter's psychiatric hospitals are JCAH accredited, and Charter will seek JCAH accreditation and CHAMPUS approval for the proposed facility. Based on Charter's provision of quality psychiatric care, its experience in providing intensive residential treatment, and the programs proposed for the Broward County facility, it is found that quality intensive residential treatment will be provided at the FRTC facility. The availability of resources, including health manpower, management personnel, and funds for capital and operating expenditures, for project accomplishment and operation. The parties have stipulated that FRTC has available resources, including management personnel and funds for capital and operating expenditures, for project accomplishment and operation. The proof further demonstrates that FRTC will be able to recruit any other administrative, clinical or other personnel needed for its facility. 1/ Accessibility to all residents FRTC projects the following utilization by class of pay: Insurance 66.5 percent, private pay 25 percent, indigent 1.5 percent, and bad debt 7 percent. While this is an insignificant indigent load, FRTC has committed to accept state-funded patients at current state rates. FRTC's projected utilization by class of pay is reasonable. The evident purpose of FRTC's application is to permit its licensure as a hospital under Section 395.002, Florida Statutes, and thereby permit it to be called a "hospital." If a residential treatment facility is licensed as a hospital it has a significant advantage over unlicensed facilities in receiving reimbursement from third party payors. Therefore, accessibility will be increased for those children and adolescents in need of such care whose families have insurance coverage since it is more likely that coverage will be afforded at an IRTP licensed as a "hospital" than otherwise. Design considerations The architectural design for the FRTC facility was adopted from a prototype short-term psychiatric hospital design which Charter has constructed in approximately 50 locations. This design contains the three essential components for psychiatric facilities: administration, support and nursing areas. The floor plan allows easy flow of circulation, and also allows for appropriate nursing control through visual access to activities on the floor. This design is appropriate for the purposes it will serve, and will promote quality residential care. As initially proposed, the facility had a gross square footage of 31,097 square feet. At hearing, an updated floor plan was presented that increased the gross square footage by 900 square feet to 32,045, an insignificant change. In the updated floor plan the recreational component was increased from a multipurpose room to a half-court gymnasium, an additional classroom was added, and the nursing unit was reduced in size to create an assessment unit. The updated floor plan is an enhancement of FRTC's initial proposal, and is a better design for the provision of long-term residential care to children and adolescents than the initial design. While either design is appropriate, acceptance of FRTC's updated floor plan is appropriate where, as here, the changes are not substantial. Financial feasibility As previously noted, the parties have stipulated that FRTC has the available funds for capital and operating expenses, and that the project is financially feasible in the immediate term. At issue is the long-term financial feasibility of the project. FRTC presented two pro forma calculations to demonstrate the financial feasibility of the project. The first pro forma was based on the application initially reviewed by the Department. The second was based on the proposal presented at hearing that included the changes in staffing pattern and construction previously discussed. Both pro formas were, however, based on the assumption than the 60-bed facility would achieve 50 percent occupancy in the first year of operation and 60 percent occupancy in the second year of operation, that the average length of stay would be 365 days, and that the daily patient charge in the first year of operation would be $300 and in the second year of operation would be $321. These are reasonable assumptions, and the proposed charges are reasonable. The projected charges are comparable to charges at other IRTP's in Florida, and are substantially less than those of acute psychiatric hospitals. For example, current daily charges at Charter Hospital of Miami are $481, and FPC anticipates that its average daily charge will be $500. FRTC projects its utilization by class of pay for its first year of operation to be as follows: Insurance (commercial insurance and CHAMPUS) 65.5 percent, private pay 25 percent, indigent 1.5 percent, and bad debt 8 percent. The projection by class of pay for the second year of operation changes slightly based on the assumption that, through experience, the bad debt allowance should decrease. Consequently, for its second year of operation FRTC projects its utilization by class of pay to be as follows: Insurance (commercial insurance and CHAMPUS) 66.5 percent, private pay 25 percent, indigent 1.5 percent, and bad debt 7 percent. These projections of utilization are reasonable. FRTC's pro forma for the application initially reviewed by the Department demonstrates an estimated net income for the first year of operation of $97,000, and for the second year of operation $229,000. The updated pro forma to accommodate the changes in staffing level and construction, demonstrates a $102,000 loss in the first year of operation and a net income in the second year of operation of $244,000. The assumptions upon which FRTC predicated its pro formas were reasonable. Accordingly, the proof demonstrates that the proposed project will be financially feasible in the long-term. Costs and methods of construction The estimated project cost of the FRTC facility, as initially reviewed by the Department, was $4,389,533. The estimated cost of the project, as modified at hearing, was $4,728,000. This increase was nominally attributable to the change in architectural design of the facility which increased the cost of professional services by approximately $7,500 and construction costs by $139,322. Of more significance to the increased cost of the project was the increase in land acquisition costs which raised, because of appreciation factors, from $750,000 to $1,000,000. The parties stipulated to the reasonableness of the majority of the development costs and most of the other items were not actively contested. Petitioners did, however, dispute the reasonableness of FRTC's cost estimate for land acquisition and construction supervision. The proof supports, however the reasonableness of FRTC's estimates. FRTC has committed to construct its facility south of State Road 84 or east of Interstate 95 in Broward County, but has not, as yet, secured a site. It has, however, allocated $1,000,000 for land acquisition, $200,281 for site preparation exclusive of landscaping, and $126,000 for construction contingencies. The parties have stipulated to the reasonableness of the contingency fund, which is designed as a safety factor to cover unknown conditions such as unusually high utility fees and unusual site conditions. Totalling the aforementioned sums, which may be reasonably attributable to land acquisition costs, yields a figure of $1,326,281. Since a minimum of 6 acres is needed for project accomplishment, FRTC's estimate of project costs contemplates a potential cost of $221,047 per acre. In light of the parties' stipulation, and the proof regarding land costs in the area, FRTC's estimate for land acquisition costs is a reasonable planning figure for this project. FRTC budgeted in its estimate of project costs $6,000 for the line item denoted as "construction supervision (Scheduling)." Petitioners contend that construction supervision will far exceed this figure, and accordingly doubt the reliability of FRTC's estimate of project costs. Petitioners' contention is not persuasive. The line item for "Construction supervision (Scheduling)" was simply a fee paid to a consultant to schedule Charter's projects. Actual on site supervision will be provided by the construction contractor selected, Charter's architect and Charter's in-house construction supervision component. These costs are all subsumed in FRTC's estimate of project cost. FRTC's costs and methods of proposed construction, including the costs and methods of energy efficiency and conservation, are reasonable for the facility initially reviewed by the Department and the facility as modified at hearing. The petitioners FPC, a Florida partnership, received a certificate of need on May 9, 1986, to construct a 100-bed short term psychiatric and substance abuse hospital in Broward County. At the time of hearing, the FPC facility was under construction, with an anticipated opening in May 1988. Under the terms of its certificate of need, the FPC facility will consist of 80 short-term psychiatric beds (40 geriatric, 25 adult, and 15 adolescent) and 20 short-term substance abuse beds. Whether any of the substance abuse beds will be dedicated to adolescent care is, at best, speculative. The principals of FPC have opined at various times, depending on the interest they sought to advance, that 0, 5, or 20 of such beds would be dedicated to adolescent care. Their testimony is not, therefore, credible, and I conclude that FPC has failed to demonstrate than any of its substance abuse beds will be dedicated to adolescent care and that none of its treatment programs will include children. As a short term psychiatric hospital, FPC is licensed to provide acute inpatient psychiatric care for a period not exceeding 3 months and an average length of stay of 30 days or less for adults and a stay of 60 days or less for children and adolescents under 18 years. Rule 10-5.011(1)(o), Florida Administrative Code. While its treatment modalities and programs may be similar to those which may be employed by FRTC, FPC does not provide long-term residential treatment for children and adolescents and its services are not similar to those being proposed by FRTC. Notably, FPC conceded that if the patients admitted by FRTC require treatment lasting from 6 months to 2 years, there will be no overlap between the types of patients treated at the two facilities. As previously noted, the proof demonstrates that the length of stay at the FRTC facility was reasonably estimated to be 6 months to 2 years, with an average length of stay of 1 year. Under the circumstances, FPC and FRTC will not compete for the same patients. As importantly, there is no competent proof that FRTC could capture any patient that would have been referred to FPC or that any such capture, if it occurred, would have a substantial impact on FPC. Accordingly, the proof fails to demonstrate that FPC will suffer any injury in fact as a consequence of the proposed facility. SBHD is an independent taxing authority created by the legislature. Pertinent to this case, SBHD owns and operates the following facilities in Broward County: Memorial Hospital of Hollywood, 1011 North 35th Avenue, Hollywood, Florida, and Memorial Hospital Share Program, 801 S.W. Douglas Road, Pembroke Pines, Florida. Memorial Hospital of Hollywood is a general acute care hospital, with 74 beds dedicated to short-term psychiatric care. These beds are divided between three units: two closed units for acute care (42 beds) and one open unit (32 beds). There is no unit specifically dedicated to the treatment of adolescents, and Memorial does not admit any psychiatric patient under the age of 14. When admitted, adolescents are mixed with the adult population. From May 1987 through January 1988, Memorial admitted only 5-10 adolescents (ages 14-18). Their average length of stay was 12-14 days. Memorial Hospital Share Program is a 14-bed inpatient residential treatment program for individuals suffering from chemical dependency. No patient under the age of 18 is admitted to this program, which has an average length of stay of 27 days. SBHD contends that its substantial interests are affected by this proceeding because approval of FRTC's facility would result in the loss of paying psychiatric and residential treatment patients that would erode SBHD's ability to provide services to the indigent, and would, due to a shortage of nursing, recreational therapy and occupational therapists who are skilled and trained in the care of psychiatric patients, affect the quality of care at its facility and increase costs for recruiting and training staff. Due to the paucity of competent proof, SBHD's concerns are not credited, and it has failed to demonstrate that its interests are substantially affected by these proceedings. Succinctly, SBHD offered no proof concerning any staffing problems it was encountering and no proof of any disparity that might exist between wages and benefits it offers its employees and those to be offered at the FRTC facility. In sum, it undertook no study from which it could be reasonably concluded that the FRTC facility would adversely impact its staffing or otherwise increase the cost of recruiting and training staff. Likewise, SBHD undertook no study and offered no credible proof that the FRTC facility would adversely impact it financially. In fact, the FRTC facility will not treat the same patient base that is cared for by SBHD.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that FRTC's application for certificate of need, as updated, be granted, subject to the special condition set forth in conclusions of law number 12. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 7th day of September, 1988. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of September, 1988.
The Issue The issue to be resolved in this proceeding is whether Petitioner, a family day care center owner/operator, committed violations of the Florida Statutes and the Florida Administrative Code, as alleged by Respondent, sufficient to justify Respondent's imposition of civil penalties upon Petitioner's license.
Findings Of Fact On October 26, 2000, Petitioner was notified by Respondent's representative that she was in violation of Section 402.302(7)(d), Florida Statutes, by "being over ratio" by having more than ten children in her care. Petitioner signed an acknowledgement of the notification. On October 30, 2000, Petitioner was formally notified by mail that she was over ratio. In the letter, Petitioner was notified that another violation would result in the imposition of an administrative fine. On July 16, 2002, Clark Henning, a day care licensing counselor for Respondent, made a routine inspection of Petitioner’s facility and determined that 13 children were present. On July 22, 2002, Respondent sent a certified letter to Petitioner advising her that she continued to be over ratio and that any future violations would result in the imposition of an administrative fine. Petitioner signed the certified mail receipt. On August 22, 2002, Henning made an unannounced inspection of Petitioner’s facility and observed that 14 children were in the facility. In accordance with requirements of Section 402.302(7), Petitioner is licensed to provide care to children solely in her home. During the course of his July 16, 2002 inspection, Henning observed that Petitioner was providing day care services in an out-building unattached to her home. At that time, Petitioner signed an acknowledgement of notification that Petitioner was prohibited from rendering care in an out- building. On July 18, 2002, Henning made an unannounced inspection of Petitioner's facility and noted that day care services continued to be provided in the out-building. On July 22, 2002, Respondent sent a certified letter to Petitioner advising her that if she continued to render day care services in the out-building, future violations would result in the imposition of an administrative fine. Petitioner signed the certified mail receipt. On August 22, 2002, Henning made an unannounced inspection of Petitioner’s facility and saw that the out-building was continuing to be used for day care. Section 402.302(3), Florida Statutes, requires that any person providing child care must first be properly background screened. On July 16, 2002, during his routine inspection of Petitioner’s facility, Henning observed an adult female, Molly Hilbert, providing care for the children. On July 16, 2002, Petitioner signed an acknowledgement of notification that Molly Hilbert had not been background screened. On July 22, 2002, Respondent sent a certified letter to Petitioner advising her that having Molly Hilbert in her employ without a background screening would, in the event of any future violations, result in the imposition of an administrative fine. Petitioner signed the certified mail receipt. In the course of his August 22, 2002 unannounced inspection of Petitioner’s facility, Henning observed Hilbert working with three children.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is RECOMMENDED that a final order be entered imposing an administrative penalty of $100 upon Petitioner's license for each of the three violations alleged in the Administrative Complaint for a total of $300. DONE AND ENTERED this 21st day of January, 2003, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 21st day of January, 2003. COPIES FURNISHED: Edward T. Cox, Jr., Esquire Department of Children and Family Services 1601 West Gulf Atlantic Highway Wildwood, Florida 34785-8158 Lillie Shells Shell's Family Day Care Home 9340 County Road 231 Wildwood, Florida 34785 Paul F. Flounlacker, Jr., Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
