The Issue The issue is whether Petitioner is qualified to take the examination for licensure as a mental health counselor.
Findings Of Fact Petitioner executed an application for licensure as a mental health counselor on June 13, 1989. He filed the application with the Board of Clinical Social Workers, Marriage & Family Therapists, and Mental Health Counselors on July 6, 1989. The application was accompanied by the appropriate fee and disclosed that Petitioner satisfied all of the educational requirements for taking the examination. However, Respondent determined that the application was incomplete because Petitioner failed to show that he had had the requisite clinical experience under the supervision of a qualified person. By letter dated July 17, 1989, Respondent informed Petitioner that his application was incomplete pending receipt of, among other things, documentation of the requisite clinical experience under the supervision of a qualified person. A second letter dated January 17, 1990, from Respondent to Petitioner restated that the application was still missing the items set forth in the prior letter. By Order of Intent to Deny filed April 12, 1990, Respondent informed Petitioner that it was denying his application on the grounds set forth above. Petitioner obtained a master's degree in clinical psychology from the University of Central Florida on December 20, 1985. From October 4, 1985, through October 20, 1988, Petitioner worked full- time as a psychological specialist at the Polk Correctional Institution under the supervision of Gerd Garkisch, Ph.D., who was head of the mental health department at the prison. Petitioner's work qualifies as clinical experience in mental health counseling. Dr. Garkisch does not hold any Florida professional licenses, such as a mental health counselor or psychologist. He is not so licensed in any other state, although he is licensed as a psychologist in Puerto Rico. Dr. Garkisch does not meet the education criteria required for licensure as a mental health counselor. Dr. Garkisch earned a master's degree in clinical psychology, which would otherwise satisfy the educational requirement for licensure as a mental health counselor. However, he received his degree from the Pontifical Catholic University of Rio Grande do Sul, Institute of Psychology, which is located in Brazil. The school is not accredited by an accrediting agency approved by the U.S. Department of Education, Council on Postsecondary Accreditation, or Association of Universities and Colleges of Canada.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Professional Regulation deny Petitioner's application for licensure as a mental health counselor. ENTERED this 11th day of October, 1990, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 11th day of October, 1990. COPIES FURNISHED: Kenneth E. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Linda Biederman, Executive Director Board of Mental Health Counseling 1940 North Monroe Street Tallahassee, FL 32399-0792 Vytas J. Urba, Staff Attorney Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Suresh Paul Pushkarna, pro se 309 Hidden Hollow Court Sanford, FL 32773
Findings Of Fact After surgery on his shoulder, petitioner found it painful to lift sacks of fertilizer and the like at the nursery where he was employed, so he left his job and sought help at respondent's Orlando office. Albert Michael Tester, a counselor in respondent's employ, caused petitioner's shoulder to be evaluated by a physician and arranged for vocational testing. Presented with various vocational options, petitioner chose a two year paralegal training program at Valencia Community College. Beginning April 26, 1977, respondent paid for petitioner's books and tuition and paid petitioner $10.00 weekly toward transportation expenses incurred in getting to and from school. Petitioner's counselor also found a job for petitioner, as a child care worker at the Orange Regional Juvenile Detention Center. Petitioner testified that the $10.00 weekly transportation "maintenance" he had been receiving ceased when he began work. Petitioner held down the job and did well in school until he left both in January of 1978. Petitioner had consulted two physicians before he left off working and quit school in January of 1978. Petitioner testified that one, Dr. Samano, told him he should cut something out; but that the other, Dr., Tew, told him he need not cut out anything. At the time of the hearing, petitioner had not been employed since January 23, 1978. After dropping out of the paralegal program, petitioner suggested to his counselor that respondent set him up in a woodworking shop as a means of vocational rehabilitation. Mr. Tester advised petitioner that, in all likelihood, this request would not be granted. In mid-February, petitioner and a legal services representative met with Charles May, Mr. Tester and other employees of respondent. When informed that the rules did not seem to authorize setting petitioner up in business, petitioner's representative asked that a final determination be postponed pending a medical evaluation of petitioner. Respondent agreed to order a series of diagnostic tests to evaluate petitioner's psychiatric condition and to access the effects of petitioner's essential hypertension. Respondent had been advised as early as August of 1977, that petitioner's shoulder "should not be disabling to any degree or restrict him from activity of choice." Respondent's exhibit No. 7. Petitioner's counselor arranged for petitioner to receive four weeks' "diagnostic maintenance" and suggested he use his spare time to gather information about establishing a woodworking business. By letter dated May 8, 1978, respondent formally notified petitioner that it was "unable to meet [his] request to assist [him] in self- employment." Respondent's exhibit No. 5. On or about June 16, 1978, respondent sponsored petitioner in the photography program in which he was involved at the time of the hearing. This sponsorship has included maintenance payments. At no time before filing the petition in the present case did petitioner request any maintenance benefits. Respondent's "Rehabilitation Services Manual" provides: "Maintenance may only be provided when supportive of other vocational rehabilitation services." Respondent's exhibit No. 9. Respondent's "Vocational Rehabilitation Counselor Manual" provides: "Maintenance will be provided a client only if it is necessary for him to derive full benefits from other services being provided." Respondent's exhibit No. 8. Neither manual has been promulgated as a rule.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent deny petitioner's request for back maintenance payments. DONE and ENTERED this 27th day of March, 1979, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: William R. Barker, Esquire 128 West Central Boulevard Orlando, Florida 32802 Douglas E. Whitney, Esquire Room 912, 400 West Robinson Orlando, Florida 32801
Findings Of Fact In 1993, the US Health Care Financing Administration gave Respondent approval to design and implement a pilot program for the delivery of mental health services in part of Florida. The pilot program is limited to Medicaid Area 6, which consists of Hardee, Highlands, Hillsborough, Manatee, and Polk counties. The purpose of the pilot program is to change the way in which the State of Florida pays for mental health services under the Medicaid program. At present, the State makes "fee-for- service" payments based on predetermined fees for defined services. RFP, 1.1 KK. Under the new method, the State will make "capitation" payments consisting of a monthly fee paid in advance to the contractor for each enrolled Medicaid recipient, regardless whether the enrollee receives the services during the payment period. RFP, 1.1.H. On November 23, 1994, Respondent issued Request for Proposals 9501 (RFP). The purpose of RFP 9501 is to procure a contract with a "single, comprehensive mental health care provider on a prepaid, capitated basis, to provide mental health benefits to Medicaid recipients who are residents of Medicaid Area 6 . . .." RFP, 1.4. The second paragraph of RFP 1.4 identifies four goals of the procurement: that the procurement proceed in a timely manner, (2) that the . . . RFP . . . encourages free and open competition, (3) that the procurement effort and resulting new contract operations be completed in a timely manner without disruption of service to Medicaid clients, and (4) that the procure- ment result in a single contractor for Area 6 with sufficient resources to provide services to all AFDC related and SSI Without Medicare Medicaid eligibles in Area 6. Section 2.2 requires that the contractor provide "[i]npatient hospital care for psychiatric conditions," "[o]utpatient hospital care for psychiatric conditions," "[p]sychiatric physician services," "[c]ommunity mental health care," "Mental Health Targeted Case Management," and "Mental Health Intensive Case Management." Section 2.3 defines the six categories of services identified in the preceding paragraph. Referring to "Community mental health care" as "Community Mental Health Services," Section 2.3 states: Community Mental Health Services Community Mental Health Services are rehabil- itative services which are psychiatric in nature, rendered or recommended by a psychia- trist; or medical in nature, rendered or recommended by a psychiatrist or other physician. Such services must be provided in accordance with the policy and service provision specified in the Community Mental Health Services Provider Handbook. The term "Community Mental Health Services" is not intended to suggest that the following services must be provided by state funded "Community Mental Health Centers" or to preclude state funded "Community Mental Health Centers" from providing these services: There are eight categories of mental health care services provided under community mental health: Treatment planning and review; Evaluation and testing services; Counseling, therapy and treatment services provided by a psychiatrist or physician; Counseling, therapy and treatment services provided by a direct service mental health care provider; Rehabilitative services; Children's mental health services; Specialized therapeutic foster care, Level 1 and 2; and Day treatment programs. Community mental health services for children in specialized therapeutic foster care and resi- dential treatment will be provided by HRS District 6 Alcohol, Drug Abuse and Mental Health Program Office to the same degree as in the past. Services are limited to those covered services provided by or under the recommendation of a psychiatrist or physician and related to a plan of care provided or authorized by a psychiatrist or physician, as appropriate, based on the patient's diagnosis. Targeted Case Management The contractor shall adhere to the requirements of the Medicaid Case Management Services Provider Handbook, but will not be required to seek certifications from the HRS Districts' Alcohol, Drug Abuse and Mental Health Program Office in regard to clients, agency designation, or mental health care case manager qualifications. Case manager training materials will be made available through the agency for reproduction by the contractor. Intensive Case Management This is a new mandatory service which is intended to provide intensive, team case management to highly recidivistic persons who have severe and persistent mental illness. Section 2.5 requires that the contractor "adhere to the following minimum staffing, availability, and access standards": The contractor shall provide access to medically necessary mental health care (with the exceptions noted in section 2.4 B.) The contractor shall make available and accessible facilities, service locations, and service sites and personnel sufficient to provide the covered services (specifically, non-hospital outpatient, emergency and assessment services) throughout the geographic area, within thirty minutes typical travel time by public or private transportation of all enrolled recipients. (The typical travel time standard does not apply to waiting time for public transportation--it applies only to actual time in transit.) The contractor must allow enrollees to choose one of the capitated services, as provided in Section 5.1 F.1., when the plan offers another service, not reimbursed under the contract, as a downward substitution. The maximum amount of time between an enrollee's request for mental health services and the first point of service shall be as follows: For emergency mental health services as defined in section 1.1 BB., service shall be immediate. For persons initially perceived to need emergency mental health services, but upon assess- ment do not meet the criteria for emergency care, they are deemed to require crisis support and services must be provided within twenty-three hours. For routine outpatient intake, assessment shall be offered within seven calendar days. Follow-up service shall be offered within fourteen calendar days after assessment. Minimum staffing standards shall be as follows, and failure to adhere to these staffing standards, or the staffing standards indicated in the winning proposal, whichever are greater, may result in termination of the contract (if the contractor's "staff" person does not fill one of the "key staff" positions listed on page 81, the staff persons may be a subcontractor.): * * * The contractor's outpatient staff shall include at least one FTE direct service mental health care provider per 1,500 prepaid members. The Agency expects the contractor's staffing pattern for direct service providers to reflect the ethnic and racial composition of the community. The contractor's array of direct service mental health care providers for adults and children must include providers that are licensed or eligible for licensure, and demonstrate two years of clinical experience in the following specialty areas: Adoption, Separation and loss, Victims and perpetrators of sexual abuse, Victims and perpetrators of physical abuse, Court ordered evaluations, and Expert witness testimony. Mental health care case managers shall not be counted as direct service mental health care providers. The contractor shall provide Spanish speaking and Spanish literate direct service providers at each service location at which there are Spanish speaking enrollees. The contractor shall provide staff approp- riately trained and experienced to provide psychological testing. The contractor shall provide staff approp- riately trained and experienced to provide rehabilitation and support services to persons with severe and persistent mental illness. For all persons meeting the criteria for case management as specified in the Medicaid Case Management Provider Handbook, the contractor shall adhere to the staffing ratio of at least 1 FTE mental health care case manager per 20 children, and at least 1 FTE mental health care case manager per 40 adults. Direct service mental health care providers shall not be counted as mental health care case managers. * * * Section 2.10 provides, in part: The contractor shall be responsible for the coordination and management of mental health care and continuity of care for all enrolled Medicaid recipients through the following minimum functions: A. Minimizing disruption to the enrollee as a result of any change in service providers or mental health care case manager occurring as a result of the awarding of this contract. An offeror may not propose rates exceeding Medicaid's upper payment limit, which "is that amount which would have been paid, on an aggregate basis, by Medicaid under fee-for-service for the same services to a demographically similar population of recipients." 4.11. Section 1.1 TTT defines "Upper Payment Limit" similarly: "The maximum amount Medicaid will pay on a capitated basis for any group of services, based upon fee-for- service Medicaid expenditures for those same services." Section 4.11 sets the range of payment rates at 92-98 percent of the upper payment limit. Each offeror is required to propose a specific payment percentage within the range. Section 4.17 allows offerors to propose a risk corridor of up to 16 percentage points plus and minus the proposed range. The corridor must be equal above and below the capitation rate. The RFP illustrates the risk corridor by applying an 8 point corridor to a 95 percent capitation rate. In this case, the contractor absorbs any plan costs up to 4 percent over the actual payments made to the plan by Respondent or retains any excess plan payments up to 4 percent over the actual costs. Beyond the corridor, the contractor and Respondent share equally in the costs or savings, subject to Respondent's upper payment limit. In no event, however, shall the contractor be entitled to payment from Respondent for "start- up" or "phase-down" costs. Section 4.18 addresses subcontractors: The contractor is fully responsible for all work performed under the contract resulting from the RFP. The contractor may, with the consent of the agency, enter into written subcontract(s) for performance of certain of its functions under the contract. The contractor must have subcontracts with all administrative and service providers who are not salaried employees of the plan prior to the commencement of services under this contract. The contractor shall abide by the requirements of Section 1128A(b) of the Social Security Act prohibiting HMOs and other such providers from making payments directly or indirectly to a physician or other provider as an inducement to reduce or limit services provided to Medicaid enrollees. The contractor must submit signed subcontracts, for a complete provider network in order to obtain agency approval for operation in an area, within sixty days of the execution of this contract, for each proposed subcontracted service provider. Any additional subcontracts must be submitted to the agency twenty days prior to the subcontract effective date. Subcontracts must be approved in writing by the agency's Technical Project Manager prior to the effective date of any subcontract. No subcontract which the contractor enters into with respect to performance under the contract resulting from the RFP shall in any way relieve the contractor of any responsibility for performance of its duties. Amendments to subcontracts must be approved by the agency before taking effect. The contractor shall notify the agency in writing prior to termination of approved subcontracts. The contractor will agree to make payment to all subcontractors within 35 days of receipt of all invoices properly documented and submitted by the subcontractor to the plan. All subcontracts executed by the contractor under the resulting contract must meet the following requirements and be approved by the agency in advance of implementation. All subcontracts must adhere to the following requirements: Be in writing. Specify the functions of the subcontractor. Identify the population covered by the subcontract. Specify the amount, duration and scope of services to be provided by the subcontractor, including a requirement that the subcontractor continue to provide services through any post- insolvency period. Provide that the agency and DHHS may evaluate through inspection or other means the quality, appropriateness, and timeliness of services performed. Specify that the subcontractor has read and agreed to the subcontract and the service provision requirements under section 2 of RFP, for services to be provided under the subcontract, and to the contractor's admission and retention criteria for the services the subcontractor will provide as indicated in the subcontractor's response to section 5.1 F3.b,(5). Provide for inspections of any record pertinent to the contract by the agency and DHHS. Specify procedures and criteria for extension and renegotiation. Provide for prompt submission of information needed to make payment. Require an adequate record system be maintained for recording services, charges, dates and all other commonly accepted information elements for services rendered to recipients under the contract. Require that financial, administrative and medical records be maintained for a period of not less than five years from the close of the contract and retained further if the records are under review or audit until the review or audit is complete. Prior approval for the disposition of records must be requested and approved by the contractor if the subcontract is continuous. Require safeguarding of information about recipients according to 42 CFR, Part 431, Subpart F. Require an exculpatory clause, which survives the termination of the subcontract including breach of subcontract due to insolvency, that assures that recipients or the agency may not be held liable for any debts of the subcontractor. Provide for the monitoring of services rendered to recipients sponsored by the contractor. Specify the procedures, criteria and requirements for termination of the subcontract. Provide for the participation in any internal and external quality assurance, utilization review, peer review, and grievance procedures established by the contractor. Make full disclosure of the method and amount of compensation or other consideration to be received from the contractor. Provide for submission of all reports and clinical information required by the contractor. Make provisions for a waiver of terms of the subcontract, if appropriate. Contain no provision which provides incentive, monetary or otherwise, for the withholding of medically necessary care. Require adherence to the Medicaid policies expressed in applicable Medicaid provider handbooks. Require that the subcontractor secure and maintain during the life of the subcontract worker's compensation insurance for all of its employees connected with the work under this contract unless such employees are covered by the protection afforded by the provider. Such insurance shall comply with Florida's Workers' Compensation Law; and Contain a clause indemnifying, defending and holding the Agency and the plan members harmless from costs or expense, including court costs and reasonable attorney fees to the extent proximately caused by an negligent act or other wrongful conduct arising from the subcontract agreement. This clause must survive the termination of the subcontract, including breach due to insolvency. The contractor shall give the agency immediate notification in writing by certified mail of any action or suit filed and prompt notice of any claim made against the contractor by any subcontractor or vendor which in the opinion of the contractor may result in litigation related in any way to the contract with the agency. In the event of the filing of a petition in bankruptcy by or against a principal subcontractor or the insolvency of said subcontractor, the contractor shall immediately advise the agency. The contractor shall assure that all tasks related to the subcontract are performed in accordance with the terms of the contract. The contractor shall identify any aspect of service that may be further subcontracted by the subcon- tractor. Subcontractors shall not be considered agents of the agency. For evaluation purposes, the RFP divides proposals into two parts: technical and rate, including any rate corridor. The six categories under the technical part, with point values in parentheses, are: Management Summary (0 points), Organization and Corporate Capabilities (100 points), Proposed Staffing Pattern and Licensure of Staff and Facilities (250 points), Operational Functions (400 points), Mental Health Care Service Delivery (400 points), and Transition Workplan (100 points). RFP, 6.1. Section 5.1.C describes the 100-point Organization and Corporate Capabilities as follows: The proposer shall provide in this tab a descrip- tion of its organizational and corporate capabi- lities. The purpose of this section is to provide the agency with a basis for determining the contractor's, and its subcontractors', financial and technical capability for undertaking a project of this size. For the purpose of this tab, the term proposer shall refer to both the contractor and its major subcontractors. It does not refer to the plan's "parent company" unless specifically indicated. Section 5.1 D states the elements of the 250-point Proposed Staffing Pattern and Licensure of Staff and Facilities. Section 5.1 D.3 requires the offeror to disclose "actual and proposed" FTE professionals, including psychiatrists, case managers, psychologists, nurses, and social workers. Section 5.1D.4 requires the offeror to explain how the plan will allocate staff to meet various demands, such as for adoption, sexual and physical abuse counseling, and psychological testing of children. Section 5.1 D.5 requires the proposal to: Describe how the plan will ensure that it has the staff resources appropriately trained and experienced to provide rehabilitative and support services to low income adults with severe and persistent mental illness and, under separate heading, to children with severe and persistent mental illness. Denote the number and percent of total FTEs which will be filled by persons with this type of experience and who will be providing these types of services. Explain the contractor's rationale for the staffing levels indicated and provide a brief, one or two line, description of the training and exper- ience of such persons who will provide these services under the plan. Section 5.1.E describes the elements of the 400-point Operational Functions, in part, as follows: Within this tab, the proposer shall explicitly address its operational capacity to serve Medicaid recipients, and its previous history serving the Medicaid and other low income populations. Separately, the proposer shall address the member services the plan will offer, grievance procedures, quality assurance procedures, the contractor's proposed reporting systems, and the contractor's proposed handling of subcontracts. Service Area of Proposed Plan 42 CFR 434.36 Describe, for each county, how the proposer will meet throughout the lifetime of the contract the 30 minute typical travel time requirement specified in section 2.5 A.1. Describe, for each county, how the proposer will meet throughout the lifetime of the contract the 30 minute typical travel time requirement for child psychiatrists specified in Section 2.5 B.2. Describe, for each county, how the proposer will meet throughout the lifetime of the contract the 30 minute typical travel time requirement for adult psychiatrists specified in Section 2.5 B.1. * * * Section 5.1.F describes the 400-point Mental Health Care Service Delivery category. Section 5.1 F states, in relevant part: This section shall include a detailed discussion of the proposer's approach to providing mental health care. The proposer must be able to document a demonstrated ability to provide a comprehensive range of appropriate services for both children and adults who experience impairments ranging from mild to severe and persistent mental illness. Plans must provide services up to the limits specified by the RFP. They are encouraged to exceed these limits. However, in no instance may any service's limitations be more restrictive than those specified in the Florida Medicaid fee- for-service program. The plan cannot require payments from recipients for any mandatory services provided under this contract. Summary of Services * * * The following is a summary list of the services which may be provided . . . * * * Optional Services Crisis Stabilization Unit * * * z. Other Services (List) * * * Care Coordination 42 CFR 434.52; 10C-7.0524(16), F.A.C. Attach the plan's written protocol describing the plan's care coordination system, which should include the plan's approach to care coordination, utilization review, and assuring continuity of care, such as, verifying medical necessity, service planning, channeling to appropriate levels of treatment, and develop- ment of treatment alternatives when effective, less intensive services are unavailable. The protocol should also address the following questions: * * * 3. Indicate how the contractor will establish services in such a way as to minimize disruption of services, particularly to high risk populations currently served by the department, for children and, separately, for adults. * * * Section 6.3 describes the criteria for evaluating proposals. For Proposed Staffing Pattern and Licensure of Staff and Facilities, the evaluation criteria include, at 6.3 B.3.c: The ability of the proposer to ensure it has, and will continue to have, the resources necessary to provide mental health rehabilitation and support to children who are in the care and custody of the state or who have special needs, such as children who have been adopted or have been physically or sexually abused. About a year ago, Respondent issued RFP 9405, which also sought to procure mental health services on a capitated basis for Medicaid Area 6. Respondent received four proposals, which contained numerous deficiencies. Respondent later withdrew RFP 9405 for revisions to encourage more competition. Concerns over competition involve the role of Community Mental Health Centers (CMHC) in the procurement. CMHCs are publicly funded, not-for-profit entities that traditionally have provided five types of services: emergency, outpatient, day/night, inpatient, and prevention education. CMHCs now also operate crisis stabilization units and supply case management services, as well as specialized children's services, services for aged persons with severe and persistent mental illness, and services for persons with alcohol or drug dependencies. The RFP calls for a wide range of mental health care services, only part of which are community mental health services or other services presently provided by CMHCs. However, CMHCs constitute the only available network of existing providers of community mental health services to Medicaid clients in Medicaid Area 6. Medicaid payments account for about 30 percent of the revenue of Area 6 CMHCs. In late 1992, six CMHCs in Area 6 formed Florida Behavioral Health, Inc. in response to competition from one or more other provider networks, such as Charter. The competitive network of six CMHCs consisted of Manatee Glens Corp., Mental Health Care, Inc., Northside Mental Health Hospital, Peace River Center for Personal Development, Inc., Winter Haven Hospital, and Mental Health Services. Although the six CMHCs are not all of the CMHCs in Area 6, they provide nearly all of the community mental health services to Medicaid clients in Area 6. By early 1993, Florida Behavioral Health, Inc. formed Florida Health Partnership with Options Mental Health, Inc., which is a managed-care provider owned by First Hospital Corporation--a behavioral health management company. With the assistance of Florida Health Partnership, Options Mental Health, Inc. submitted a proposal in response to RFP 9405. An oral or written agreement between Florida Behavioral Health, Inc. and Options Mental Health, Inc. prohibited the six CMHCs from assisting any entity but Options Mental Health, Inc. in responding to RFP 9405. This agreement continues to prohibit the six CMHCs from assisting any entity but Options Mental Health, Inc. in responding to the RFP. The six CMHCs have shared with Options Mental Health, Inc. cost and utilization information. The importance of the unpublished cost information is unclear, and Petitioner has not yet made a public records request to obtain this information. The same is true of unpublished utilization information, which includes information on waiting lists for community mental health services. Any delay in providing community mental health services would have a bearing on the projected demand and thus the cost of a capitated plan. After withdrawing RFP 9405, Respondent revisited the requirement that offerors propose an existing network of providers. In an effort to encourage competition, Respondent deleted a requirement in RFP 9405 that proposals contain existing provider networks. Respondent substituted a requirement that proposals describe provider networks generally, without necessarily including names of subcontractors. Petitioner did not prove any fraudulent, illegal, arbitrary, or dishonest act by Respondent. The main thrust of Petitioner's case is that the effect of the RFP is illegal or arbitrary. Petitioner asserts that the RFP requires a sole source provider or, at minimum, precludes free and open competition. Petitioner argues that the RFP illegally and arbitrarily favors offerors of CMHCs, in partnership with CMHCs, or with subcontracts with CMHCs. Through testimony and argument, Petitioner asserts that various provisions of the RFP either exacerbate or fail to ameliorate the advantages enjoyed by CMHCs, especially due to RFP requirements of implementation of the new provider network in 60 days and with minimal disruption to Medicaid clients. RFP 1.4(2) encourages open and free competition. RFP 2.3 D disclaims any intent that only CMHCs may supply community mental health services. Petitioner's chief witness, Dr. Ronald Mihalick, testified that RFP 2.3 D favors CMHCs because state regulations have designated them the sole provider of community mental health services and government grants have funded their capital expenditures. Neither Dr. Mihalick, Petitioner's other witness, nor Petitioner's counsel has suggested a practical means by which to eliminate this advantage of CMHCs, which cannot, by executive or legislative fiat, be stripped of their buildings, equipment, or experienced staffs, nor of the advantages that may accrue to them by virtue of such assets. It would be counterproductive to eliminate CMHCs from direct or indirect participation in the subject procurement. Nor is Respondent required, if it were legally able, to assign to CMHCs the status of universal providers in order to eliminate illegality or arbitrariness from the RFP. The RFP seeks a broad range of mental health services, of which a substantial part are community mental health services. RFP 2.3 D represents a simple description of community mental health services and expressly negates the inference that only CMHCs may provide such services. RFP 2.3 E and F describes two of the five categories of mental health services: targeted case management and intensive case management, respectively. Intensive case management is a new service, and nothing suggests that Area 6 CMHCs have any direct experience that would give them an advantage in providing this new service, Targeted case management is an existing service provided by CMHCs. There is some doubt whether the RFP provides detailed cost information, including information about targeted case management. However, Petitioner has never made a public records request for such information from any of the CMHCs or Respondent. In any event, Petitioner has hardly presented sufficient evidence regarding targeted case management that the inclusion of such a service in the RFP is arbitrary or illegal. RFP 2.5 prescribes standards for minimum staffing, availability, and access. The minimum staffing standards do not require that existing service providers supply the specified services. For instance, "direct service mental health care providers" must be "licensed or eligible for licensure," as provided in RFP 2.5 B.3.a. Petitioner's objection is that the RFP expresses staffing standards in accordance with Medicaid guidelines, under which the CMHCs are already operating. This objection is puzzling because the procurement is for Medicaid services. In any event, the presence of such a provision does not render the RFP illegal or arbitrary for the reasons already stated. RFP 2.5 B.4 requires staffing ratios of one fulltime equivalency (FTE) per 20 mental health care case managers for children and one FTE per 40 mental health care case managers for adults. Again, though, the RFP does not require that such case managers must be currently employed by a CMHC or even currently providing such services. Petitioner legitimately objects to specifications expressed in terms of FTEs when applied to non-administrative services. The use of FTEs applies to fulltime employees, not to individual therapists who may see Medicaid clients on an occasional basis. The requirement that non-administrative services be expressed in FTEs unduly emphasizes process over product or outcome and is inconsistent with the spirit of the RFP. However, the use of FTEs in RFP 2.5 B.4 does not rise to the level of arbitrariness or illegality. As Respondent's chief witness, Marilyn Reeves, testified, an offeror may convert individual therapists to FTEs, even though the contractor may bear the risk of a faulty conversion formula. RFP 2.10 requires that the contractor implement the new capitated plan with minimal disruption to Medicaid clients, whose mental conditions may worsen from such disruption. Petitioner does not challenge this sensible provision. Petitioner instead argues that other pro-CMHC provisions preclude the implementation of a new plan with minimal disruption. Petitioner has failed to prove that the pro-CMHC provisions, except for 4.18 as discussed below, necessitate more than minimal disruption during the transition. RFP 4.17 provides that Respondent shall not pay the contractor's start-up or phase-down costs. Petitioner's objection is that government grants have paid for the capital expenditures of the CMHCs. For the reasons discussed in connection with RFP 2.3 D, Petitioner has failed to prove how this provision is arbitrary or illegal. RFP 5.1 D assigns 250 points for the proposed staffing pattern and requires the offeror to disclose "actual and proposed" FTE professionals, such as psychiatrists, case managers, and social workers. An offeror that has already identified its personnel may be able to provide a more detailed description and earn more points than another offeror that has yet to find its subcontractors. Likewise, RFP 5.1 D.5 requires a discussion of FTEs, although an offeror with as yet unidentified subcontractors probably can satisfy this section with a more generic discussion and not lose points. In any event, to the extent that the specification in terms of FTEs favors CMHCs, such a provision is not so onerous or unnecessary as to be arbitrary or illegal, as discussed in connection with 2.5 B.4. RFP 5.1 E assigns 400 points for operational functions and requires the offeror to "explicitly address its operational capacity to serve Medicaid recipients, and its previous history serving the Medicaid and other low income populations." Unlike RFP 5.1 C, which requires a proposal to address the contractor and its "major subcontractors," 5.1 E does not mention subcontractors, so this provision favors CMHCs even less than the other provisions of 5 and 6. Perhaps for this reason, neither Petitioner's witnesses nor Petitioner's proposed recommended order addressed RFP 5.1 E. RFP 5.1 F requires an offeror to provide a "detailed discussion," in which it shall "document a demonstrated ability to provide a comprehensive range of appropriate services . . .." An offeror with as yet unidentified subcontractors will likely be unable to supply nearly as much detail as an offeror with subcontractors already in place, but this provision would, if challenged, not be deemed arbitrary or illegal. However, Petitioner challenges only RFP 5.1 F.1 (Optional Services) and 5.1 F.4.a.3. Section 5.1 F.4.a.3 reiterates the requirement that the new capitated plan be implemented so as to "minimize disruption of services." As noted above, Petitioner of course does not object to this requirement, but uses it to show how other provisions are arbitrary or illegal. Petitioner objects to the portion of 5.1 F.1 identifying crisis stabilization units as an Optional Service. Although only CMHCs are licensed to operate crisis stabilization units, the same services are available from other sources, although often not as economically. Moreover, the crisis stabilization unit is only an Optional Service, which Respondent mentioned only for illustrative purposes. The last-cited option, "Other Services (List)," encourages offerors to devise creative options that may not involve such traditional providers as crisis stabilization units. RFP 6.3 B.3.c requires the offeror to ensure that "it has, and will continue to have, the resources necessary to provide mental health rehabilitation and support . . .." Satisfaction of the criteria of 6.3 B, like 5.1 C, D, and F, is easier for CMHCs and harder for contractors with as yet unidentified subcontractors. However, the advantage conferred upon CMHCs is not so great as to render 6.3 B arbitrary or illegal. To varying degrees, RFP 5.1 D.5, E.1, and F.1 (Optional Services) and 6.3 B.3.c prefer CMHCs or offerors affiliated with CMHCs. These provisions potentially conflict with the RFP provisions encouraging free and open competition and prohibiting more than minimal disruptions in service. The potential conflicts are partially attenuated by the ability of an offeror, prior to submitting a proposal, to identify subcontractors that may provide similar services to non-Medicaid clients or provide similar services to Medicaid clients in other areas of Florida or other states. RFP 5.1 D.5, E.1, and F.1 (Optional Services) and 6.3B impose qualitative standards upon the contractor and any subcontractors, whose employees have direct contact with the Medicaid clients. Non-CMHC offerors may nonetheless be able to identify, at the proposal stage, their subcontractors so as to earn the maximum points in these categories. For instance, offerors may find non-CMHC subcontractors providing community mental health services to non- Medicaid clients or to Medicaid clients elsewhere in Florida or the United States. With greater difficulty, non-CMHC offerors with as yet unidentified subcontractors may be able to project, at the proposal stage, features of their subcontractors. They may not be able to score as well as CMHCs and other offerors with already identified networks of community mental health service providers. However, to the extent that non-CMHCs are disadvantaged by these provisions, Petitioner has not shown that the inclusion of these provisions is arbitrary or illegal. These provisions ensure the delivery of quality mental health services. As likely as not, Petitioner has included these provisions after careful consideration of the benefits of further competitiveness and the costs of further limitations upon the participation of CMHCs. The final provision challenged by Petitioner is RFP 4.18, which acknowledges that the contractor may not itself provide the mental health services, but may contract with subcontractors for the provision of these services. Requiring that the contractor have subcontracts prior to the commencement of services under the new capitated plan, Section 4.18 adds that the contractor must submit for Respondent's written approval: signed subcontracts, for a complete provider network in order to obtain agency approval for operation in an area, within sixty days of the execution of this contract, for each proposed subcontracted service provider. Petitioner's challenge to RFP 2.3 D, E, and F; 2.5 A and B.3 and 4; and 4.17 fails because these provisions confer upon CMHCs an insignificant advantage, an advantage upon that could not be removed without eliminating CMHCs from the procurement, or an advantage while specifying an important substantive requirement. Petitioner's challenge to RFP 5.1 D.5, 5.1 E.1, 5.1F.1, and 6.3 B.3.c fails because these provisions, even if conferring significant advantages upon CMHCs, impose important qualitative requirements upon the delivery of mental health services to Medicaid clients. However, RFP 4.18 is different from these other provisions. It does not involve the actual delivery of mental health services to Medicaid clients. Section 4.18 dictates only how long after signing the contract with Respondent the contractor has to implement the new capitation contract. The advantage conferred by 4.18 upon CMHCs is neither trivial nor necessary. The federal waiver runs two years from the actual start-up date of the new capitation plan. Obviously, an inordinate delay in implementation might suggest that the contractor is unable to do the job, but nothing in the record suggests that 60 days marks the beginning of an inordinate delay. Respondent understandably wants to get the pilot project started quickly, presumably in anticipation of important cost savings. But these considerations do not rise to the importance of other provisions involving the actual delivery of mental health services to Medicaid clients. Non-CMHCs, especially offerors with as yet unidentified subcontractors, face a considerable task in plan implementation. For this procurement, only one offeror will have the assistance of the CMHCs, which gives that offeror a clear advantage in at least the community mental health and targeted case management categories. There is no good reason to increase this advantage by imposing an unrealistically short implementation timeframe on contractors. On the other hand, there are two reasons why the 60-day implementation timeframe is arbitrary and illegal: it conflicts with RFP provisions encouraging open competition and it conflicts with RFP provisions prohibiting more than a minimal disruption to clients. The new capitation plan represents a marked departure from past practice. The successful contractor is assuming considerable financial risks when it sets its fees and risk corridor, if any. This risk is spread over a wide geographic area containing some of Florida's most densely populated areas. Anticipated cost savings to the State may result in narrowed profit margins before the contractor can safely realize savings from reductions in the cost of mental health services provided to Medicaid clients. The success of the capitation plan is jeopardized if the contractor underestimates the revenue needed for the successful operation of the plan. The offeror without subcontractors at the time of submitting a proposal needs time to enlist the cooperation of CMHCs or other subcontractors. A witness of Respondent described a possible scenario in which CMHCs declined to cooperate with the contractor and were forced to terminate employees. Although these employees would be available to the contractor, they would not likely be available in a 60-day timeframe. A multitude of tasks confront the non-CMHC contractor, especially if the contractor does not have a subcontractor network in place when submitting the proposal. Not surprisingly, Respondent's witnesses did not offer a spirited defense of the 60-day implementation timeframe, as is partly illustrated by the following testimony of Respondent's chief witness: Q: Is there a reason that the language on Page 61 says "must have signed subcontract within 60 days?" A: No. What it is trying to get at there is that if you are going to start being operational within 60 days, you got to know that you got to get those subcontracts approved by us prior to being able to do that. Respondent's witness readily testified that the deadline would not be enforced, if the enforcement jeopardized the welfare of the Medicaid clients. Of course, given the vulnerability of the clients, Respondent would not require the implementation of an unfinished plan at the end of the contractual implementation timeframe, regardless of the duration of the implementation timeframe. But a rational deadline for implementation would not so readily invite discussions of waivers and extensions. The presence of an impractical deadline misleads offerors. Some offerors may obtain an unfair advantage by structuring their proposals without regard to the implementation timeframe, secure in the knowledge that it will not be enforced. Other offerors may limit Optional Services or avoid more creative delivery or administrative programs in order to ensure that their plans can be implemented within the arbitrarily short implementation timeframe. To eliminate arbitrary and illegal conflicts with other RFP provisions encouraging open competition and prohibiting more than minimal disruptions in service, the implementation timeframe of 60 days must be extended to at least 120 days.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Agency for Health Care Administration enter a final order amending RFP 4.18 by inserting "120" days for "60" days in the second paragraph and making any necessary conforming changes elsewhere in the RFP, and, after making these changes, proceed with the subject procurement. ENTERED on January 31, 1995, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on January 31, 1995. APPENDIX Rulings on Petitioner's Proposed Findings 1-4: (except that "poisonous" in paragraph 2 is rejected as melodramatic and unsupported by the appropriate weight of the evidence): adopted or adopted in substance. 5: rejected as unsupported by the appropriate weight of the evidence, except for 4.18. 6-7: adopted or adopted in substance, except that Petitioner did not challenge 5.1 E at the hearing or in the proposed recommended order. 8: rejected as irrelevant. 9-13: adopted or adopted in substance. 14: rejected as unsupported by the appropriate weight of the evidence. Petitioner did not prove that the actual information shared by the CMHCs was crucial--only that certain information could theoretically be crucial. 15: adopted or adopted in substance, although other CMHCs operate in Area 6, but do not possess much share of the community mental health services market. 16-17: rejected as irrelevant. 18: adopted or adopted in substance, except for the last sentence, which is rejected as unsupported by the appropriate weight of the evidence (except for 4.18). 19-20: adopted or adopted in substance. 21: rejected as repetitious. 22: adopted. 23-25: adopted or adopted in substance, except for last sentence of paragraph 25, which is rejected as unsupported by the appropriate weight of the evidence. 26-27: adopted or adopted in substance. 28: rejected as unsupported by the appropriate weight of the evidence. 29-33: adopted or adopted in substance, except for last sentence of paragraph 33, which is rejected as unsupported by the appropriate weight of the evidence. 34: adopted or adopted in substance. 35-36: rejected as unsupported by the appropriate weight of the evidence. 37-38: adopted or adopted in substance, although this was hypothetical testimony of one of Respondent's witness, not a formal statement of Respondent's "position." 39 (first sentence): rejected as unsupported by the appropriate weight of the evidence. 39 (second sentence): adopted. 40-44 (second sentence): adopted or adopted in substance. 44 (third sentence): rejected as recitation of evidence. 45: adopted. 46-47: adopted or adopted in substance. 48: rejected as unsupported by the appropriate weight of the evidence. 49: rejected as irrelevant and, except for 4.18, unsupported by the appropriate weight of the evidence. Rulings on Respondent's Proposed Findings 1-5: adopted or adopted in substance. 6: adopted or adopted in substance, except for 4.18. 7: adopted or adopted in substance. 8: adopted or adopted in substance, at least to the extent that Petitioner failed to prove the contrary. 9 (except last sentence): adopted or adopted in substance. 9 (last sentence): rejected as speculative. 10-16: adopted or adopted in substance, although the extent of Petitioner's ability to respond satisfactorily is questionable, as is the rationale for the use of FTEs for non-administrative positions. Additionally, all proposed findings that RFP provisions do not place non-CMHCs at a disadvantage, when such proposed findings conflict with findings in the recommended order, are rejected as unsupported by the appropriate weight of the evidence. COPIES FURNISHED: Douglas M. Cook, Director Agency for Health Care Administration 2727 Mahan Drive Tallahassee, FL 32308 Harold D. Lewis, General Counsel Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, FL 32303 Sam Power, Agency Clerk Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, FL 32303 Seann M. Frazier Mark A. Emanuele Panza Maurer P.A. 3081 East Commercial Blvd. Suite 200 Ft. Lauderdale, FL 33308 Paul J. Martin William H. Roberts Assistant Attorneys General Office of the Attorney General PL-01, The Capitol Tallahassee, FL 32399-1050
The Issue Whether Petitioner, Drew Breznitsky (“Petitioner” or “Mr. Breznitsky”), should be issued a license as a mental health counselor intern; Whether Petitioner is unable to practice with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics, chemicals, or any other type of materials or as a result of any mental or physical condition pursuant to section 456.072(1)(z), Florida Statutes; and Whether Petitioner is unable to practice as a mental health counselor intern with reasonable skill or competence as a result of any mental or physical condition or by reason of illness; drunkenness; or excessive use of drugs, narcotics, chemicals, or any other substance, in violation of section 491.009(1)(p), Florida Statutes.
Findings Of Fact Background The Department is the state agency charged with regulating the practice of clinical social work in Florida, see § 20.43 and chs. 456 and 491, Fla. Stat. The Board is the state agency that implements and enforces regulations regarding the registration of mental health interns in the State of Florida. Mr. Breznitsky is an applicant for licensure as a mental health counselor intern. Mr. Breznitsky has a bachelor’s degree in human services, and a minor in psychology. In March 2020, he earned a degree in counseling, with an emphasis in clinical mental health counseling, from Webster University. Petitioner’s cumulative GPA upon graduation was 3.550. He also holds a master’s degree in clinical mental health counseling and marriage and family therapy. Mr. Breznitsky is the owner of Beachside Recovery Interventions and Consulting (“BRIC”), for which he has received positive online reviews for his work. BRIC provides interventions, peer support groups, educational seminars, human trafficking investigation, and expert witness services. As part of his position at BRIC, Mr. Breznitsky has testified as an expert witness in substance use, mental health assessment, and treatment services in six different counties in Florida. Mr. Breznitsky also provides services to the Brevard County Sheriff’s Office Gang Unit, Drug Unit, and Sex Crimes Unit. He sits on several task forces including the Brevard County Opioid Task Force, the Brevard County Human Trafficking Task Force, and the Brevard County Prevention Coalition. Application Process On May 18, 2020, Mr. Breznitsky submitted his application for registration as a mental health counselor intern to the Board. On May 21, 2020, the Board informed Petitioner that his application was not complete and that additional documentation and information was needed related to prior disciplinary action and criminal history. Mr. Breznitsky timely submitted the requested documentation and his application was completed on July 6, 2020, when the Board received official transcripts from Webster University. The Board obtains criminal history background screening for applicants in addition to any crimes disclosed by the applicant. On August 6, 2020, pursuant to notice, Mr. Breznitsky appeared before the Board at a scheduled Board meeting. Members of the Board questioned Mr. Breznitsky regarding his criminal and educational discipline history at the August 6, 2020, Board meeting. The Board, acting within their authority, passed a vote that required Mr. Breznitsky to appear at one of the next two board meetings, and to provide an evaluation from the Professional Resources Network (“PRN”) indicating that he is able to practice as a registered mental counselor intern with reasonable skill and safety. On November 5, 2020, Mr. Breznitsky appeared before the Board at a Board meeting as instructed. At the November 5, 2020, Board meeting, the Board voted to deny Mr. Breznitsky’s application for registration as a mental health counselor intern. On November 19, 2020, the Board filed its Notice in this matter. It is undisputed that Mr. Breznitsky has met all requirements for licensure as a mental health counselor intern. However, there was a question about whether he could practice with reasonable skill and safety to patients. Fact Witness Testimony Petitioner presented multiple witnesses to attest to his ability to practice with reasonable skill and safety based upon personal observations and experience with Petitioner. The witnesses presented were familiar with working with him in various environments. Jack Platt, a personal injury and criminal defense attorney, has been practicing law for more than 27 years. Mr. Platt represented Mr. Breznitsky in a criminal matter. Due to this representation, Mr. Platt has knowledge of Mr. Breznitsky’s prior criminal issues. Mr. Platt currently refers his criminal defense clients with substance abuse issues to Mr. Breznitsky to help them with seeking treatment and recovery. Mr. Breznitsky testifies in court on behalf of these clients to help redirect their sentences from incarceration to treatment. While Mr. Platt does not socialize with Mr. Breznitsky, of most importance in this matter, he sees him in professional settings, including court. Mr. Platt credibly testified that he has never seen Mr. Breznitsky impaired by use of drugs or alcohol. When asked if he believed that Mr. Breznitsky would pose a danger to the public health or safety and if he should be granted the ability to practice as a mental health counselor intern, Mr. Platt unequivocally testified that he didn’t believe he would be a danger and that the profession would benefit from him being a part of it. Specifically, Mr. Platt testified that “Mr. Breznitsky gives these people these tools to deal with, not only the clients but the family. And he helps them move forward and become contributing members of society.” Mr. Platt’s testimony is credited. Dr. Beth Mahoney, another witness familiar with Mr. Breznitsky in a professional setting, is a licensed medical doctor and has been practicing as a psychiatrist for over 25 years. Dr. Mahoney’s practice focuses on patients with addiction issues, trauma, and post-traumatic stress disorder (“PTSD”). Dr. Mahoney practices in the same building, and in collaboration, with Mr. Breznitsky. Mr. Breznitsky’s business refers approximately four to five patients to Dr. Mahoney each month. Dr. Mahoney sees Mr. Breznitsky at the office daily. They also interact and discuss patients. She has never seen Mr. Breznitsky impaired by use of drugs or alcohol, nor has she seen him do anything that would make her doubt his ability to be a mental health counselor intern. Moreover, Dr. Mahoney believes that he would be very good at practicing as a mental health counselor intern as he is able to evaluate patients quickly and get them the help they need. Dr. Mahoney’s testimony is found to be credible. Respondent has asserted that Dr. Mahoney has a financial interest in the success of Dr. Breznitsky being granted a license. However, the undersigned finds that the business relationship has no bearing on the issue of whether he is able to practice with competency or reasonable skill and safety. She credibly testified that she has never observed him impaired and she does not believe that he would pose a danger to others. In addition, she believes he would be an asset to the profession as a mental health counselor intern. Moreover, the referral relationship is currently with Mr. Breznitsky’s company and it would not be impacted whether he is granted a license as he is not required to hold a license to continue the relationship. Gregory Richter, who has served in law enforcement for approximately 20 years, created the “Coming Clean” documentary after the death of his brother from a drug overdose. Mr. Richter had interactions with Mr. Breznitsky both during the filming of the documentary and for showings, both locally and out of state, of the documentary after its completion. In addition to interactions related to the documentary, Mr. Richter has had social interactions with Mr. Breznitsky as well. Due to the creation of the documentary, individuals with substance abuse issues request Mr. Richter’s help. Mr. Richter recommends Mr. Breznitsky to these individuals. Mr. Richter testified that he has never seen Mr. Breznitsky in a professional or personal setting impaired on drugs or alcohol, and does not believe he would be a danger to public health or safety should he be granted his registered mental health counselor intern license. Mr. Richter’s testimony is found to be credible. Susan Deane, licensed mental health counselor, a licensed marriage and family therapist, and a licensed qualified supervisor, also provides her services to BRIC. Mr. Breznitsky interned with Ms. Deane during his graduate program, and she has been his mentor since that time. As part of her work with BRIC, Ms. Deane reviews and approves Mr. Breznitsky’s substance abuse and mental health evaluations. Prior to signing any evaluation, Ms. Deane also discusses the patient and the evaluation with Mr. Breznitsky. The evaluation discussions routinely occur four to five times per week. Thus, Ms. Deane has many opportunities to assess his competency in the professional setting. She credibly testified that “he’s extremely thorough.” Ms. Deane would serve as Mr. Breznitsky’s qualified supervisor if he is granted a license. Christopher Kiesel is a private investigator who has focused primarily on criminal defense and due process investigations for approximately 10 years. Mr. Kiesel was instrumental in helping Mr. Breznitsky start the operation of BRIC and in helping him establish relationships with people he would need to perform his job effectively. Mr. Kiesel works with Mr. Breznitsky on criminal defense cases when they share a common client. Mr. Kiesel has never seen Mr. Breznitsky impaired by use of drugs or alcohol. Mr. Keisel has never seen Mr. Breznitsky do anything that would make him doubt Mr. Breznitsky’s ability to be a mental health counselor intern nor does he believe that if Mr. Breznitsky’s license was granted that he would be a danger to public health or safety. Mr. Kiesel’s testimony is also credited. Based on the testimony of five fact witnesses, there was no testimony of client care or attendance issues. There was no evidence of any incidents that would raise any concern that Petitioner was impaired in any way while working or in a personal setting. The Board offered no witnesses or evidence to rebut the testimony of Petitioner’s lay witnesses regarding any incidents that demonstrate Petitioner is unable to practice with reasonable skill and safety or whether he is competent to practice as a mental health counselor intern. PRN Review The Board directed Petitioner to undergo an evaluation with PRN to determine whether he is safe to practice with reasonable skill. Mr. Breznitsky contacted PRN as directed by Board. Petitioner first submitted to an intake interview with the PRN Intake Case Manager, Kim Simon. In addition to the intake interview, PRN obtained available information from the Board. After the intake interview, the intake team met to review and discuss Mr. Breznitsky’s file. The members of the intake team included: Dr. Polles; William Jacobs, M.D (associate medical director); Delana Torrance (case manager supervisor); Ms. Simon (intake case manager); and Miranda Ivy (administrative support). Dr. Polles was the only member from the intake team who testified at the final hearing. Based on the review, the intake team was concerned that Mr. Breznitsky could be impaired and an independent evaluation was necessary. PRN then notified Mr. Breznitsky about the intake team’s determination and he was given the names and contact information for three evaluators approved by PRN whom he could choose for the evaluation. Petitioner selected Dr. Lawrence Wilson to perform the independent evaluation. A proper evaluation to diagnose an alcohol or substance use disorder requires obtaining a past history, current use information, and validating information with objective testing. The intake interview and information provided to PRN from the Board was forwarded to Dr. Wilson, along with a letter which requested what was needed for PRN to make their determination regarding Petitioner’s ability to practice safely. The Board presented Dr. Wilson as an addiction medicine expert who evaluated Respondent. He is board-certified in addiction medicine. Dr. Wilson was a urologist until substance abuse impaired his ability to practice medicine, and he entered the PRN program. After successful completion of the PRN program, he pursued addiction medicine. He completed a two-year fellowship in addiction medicine at the Drug Abuse Comprehensive Coordinating Office (DACCO) in Tampa from 2010 to 2012. He worked at DACCO and eventually became its associate medical director. He currently serves as the CEO and medical director at Seven Summit Pathways, a private treatment facility in Tampa, which is a residential and outpatient medication-assisted substance abuse treatment facility. As the medical director of Seven Summit Pathways, he is responsible for patient’s medical care. Dr. Wilson also routinely conducts evaluations for PRN. Dr. Wilson has held teaching positions in addiction medicine at the University of Florida in the Department of Psychiatry, and in the Department of Psychiatry and Neurobiology at the University of South Florida. He is a certified medical review officer and is qualified to interpret laboratory test results for substances detected in laboratory test samples. Mr. Breznitsky submitted to an in-office urine test, which detects the presence or absence of certain drugs and substances. The urine tests detect the presence of alcohol for 24 hours prior to testing and alcohol metabolites for two to three days after drinking. Mr. Breznitsky’s test returned negative. On September 18, 2020, Dr. Lawrence Wilson conducted an independent medical evaluation of Mr. Breznitsky. The evaluation included a personal interview and examination of Mr. Breznitsky, and collection of hair and blood samples for forensic drug and alcohol analysis. On October 2, 2020, Dr. Wilson’s office collected another hair sample to perform a second drug test. The first hair sample, while being presumptively positive for cocaine, did not have sufficient hair in the sample for a definitive determination. The second hair test was positive for cocaine and cocaethylene. Dr. Wilson’s evaluation was based on his examination and interview; the reports on the three drug tests he performed on Respondent; the PRN intake information; interviews of witnesses identified by the Petitioner; a psychological report prepared by Petitioner’s psychologist Dr. Eyring; and Petitioner’s prescription for alprazolam,2 a benzodiazepine. Dr. Wilson diagnosed Mr. Breznitsky with alcohol use disorder of moderate to possibly severe based on his evaluation. He testified that Mr. Breznitsky consumed alcohol in larger amounts over a longer period of time than intended; his inability to control his alcohol use issues resulting in a failure to fulfill a major obligation at work; and his recurrent alcohol use in situations in which it was hazardous, i.e., driving while under the influence of alcohol. To support his opinion, he identified incidents from Mr. Breznitsky’s past history but could not point to any incidents that 2 The brand name for Alprazolam is Zanax. demonstrated Mr. Breznitsky is unable to practice with reasonable skill and safety.3 Dr. Wilson’s evaluation was provided to PRN upon completion and reviewed by the intake team to determine the best decision for public safety and Petitioner. Dr. Polles testified that Dr. Wilson addressed the intake team’s concerns in his evaluation and his documented findings gave support to his final diagnoses and recommendations. PRN accepted Dr. Wilson’s findings. PRN provided a copy of Dr. Wilson’s evaluation to Mr. Breznitsky. Petitioner disagreed with Dr. Wilson’s findings and recommendations. Due to his dissatisfaction with Dr. Wilson’s findings, Mr. Breznitsky was offered a second evaluation by another evaluator approved by PRN. However, Petitioner declined a second evaluation. Mr. Breznitsky was then offered alternative treatment solutions, which Mr. Breznitsky also declined. Based in part on Dr. Wilson’s opinion and the intake team’s review of Mr. Breznitsky’s history, PRN determined Petitioner is not able to practice and is a serious danger to the safety and welfare of the public. 3 Dr. Wilson testified that he based his decisions regarding his diagnosis on several factors that are based on incidents that occurred more than 10 years prior to his evaluation of Mr. Breznitsky. His testimony was as follows: Q: … You say that he uses in larger amounts or over a longer period than intended, what did you base that on? A: Well, he’s drinking large shots of 151 rum. He’s drinking excessive amounts of alcohol. Q: Can you tell me the last time he drank 151 rum? A: No. And like I told you before it’s moot. Q: … What major role obligations has he failed to fulfill? A: He had issues in school, well, I don’t know if he lost his employment. He certainly lost his job. He lost his occupation because he was arrested. … Q: In the last ten years, what major role obligations has he failed to fulfill? A: Don’t know. Q… In the last ten years, when has he used in physically hazardous conditions? A: Don’t know. By letter dated October 27, 2020, Dr. Polles communicated to the Board that Dr. Wilson diagnosed Mr. Breznitsky with alcohol use disorder, moderate to severe; stimulant (Cocaine Type) use disorder, mild to moderate; sedative hypnotic anxiolytic use, evaluate for use disorder; history of generalized anxiety disorder; and stressors including professional licensure, employment, and substance use. She further communicated that Dr. Wilson recommended a residential, partial hospitalization program with housing. Petitioner requested an agreement to intensive outpatient treatment. PRN denied the request. Dr. Bowen’s Testimony Petitioner presented expert testimony of Dr. Duncan Bowen to refute Dr. Wilson’s opinions. Dr. Bowen, a psychotherapist, is a licensed mental health counselor, the same professional license that Mr. Breznitsky would ultimately pursue. Dr. Bowen has been practicing for more than 40 years with experience in mental health and substance abuse issues. Dr. Bowen is not board-certified in addiction medicine or addiction psychiatry, and he does not hold the kinds of certifications Dr. Wilson holds. However, he has performed evaluations of licensed healthcare providers. In addition, Dr. Bowen has testified as an expert witness hundreds of times with the majority of those cases being for drugs, alcohol, and mental health issues. Dr. Bowen disagreed with Dr. Wilson’s findings, including his conclusion that Mr. Breznitsky has a lifetime alcohol use disorder. Dr. Bowen conducted an evaluation of Mr. Breznitsky. Dr. Bowen met with Mr. Breznitsky on three separate occasions for interviews, he considered documents that he received; conducted independent interviews with Mr. Breznitsky's colleagues; obtained past history; performed an in-office urine alcohol and substance screening test (Precision Plus Urinalysis - 13 Panel Screen); and conducted a Minnesota Multiphasic Personality Inventory-2 (“MMPI-2”) personality test of Petitioner. Dr. Bowen testified that the MMPI-2 test is one of the most researched inventories in the United States to determine an individual’s personality traits and one of the most recognized tests within the legal system. Dr. Bowen completed training on administering the MMPI-2 test and interpretation of its results. Additionally, Dr. Bowen’s doctoral thesis involved the administration and interpretation of MMPI-2 test results. During his professional career, Dr. Bowen has administered the MMPI-2 thousands of times. The early part of his career involved administering and interpreting MMPI-2 results for applicants to the Brevard County Sheriff’s Office to ensure that they were psychologically and emotionally fit to be sheriff’s deputies. He currently routinely administers and interprets the MMPI-2 when he is working with clients with potential mental health or substance abuse issues. Dr. Bowen collected the urine sample for the Precision Plus urine test. He performed the test by standing outside the office restroom with the door cracked while Petitioner was in the restroom. After collection of the sample, Dr. Bowen read the reactive panel on the specimen cup, which was negative for all substances. The Precision Plus test screens for alcohol ingestion within the previous 24 hours and cocaine for three days. After the evaluation, Dr. Bowen concluded that “Mr. Breznitsky is not a danger to himself, children, or the community at large. He has the ability to make sound assessments and decisions in life matters. He is not a danger to clients with whom he may provide mental health or substance abuse counseling.” Similarly, at the final hearing, Dr. Bowen testified that in his opinion, Mr. Breznitsky would not be a danger to public health and safety and that he would be able to practice safely if he were granted his mental health counselor intern license. The Board disputed the MMPI-2 validity and results. Dr. Aufderheide testified that Dr. Bowen’s report did not indicate whether Dr. Bowen gave Mr. Breznitsky required instructions on taking the test, and he disputed whether a mental health examination was performed prior to the test being administered. However, Dr. Bowen testified that he conducted a mental health exam on Mr. Breznitsky and gave him the required instructions prior to administering the MMPI-2. Further, he testified that he made sure Mr. Breznitsky was alone in a secure room, with periodic monitoring, while the test was being conducted. The Board disputed the results of the MMPI-2 because the results were reported as “marginally valid.” The Board suspected the report was “marginally valid” due to Mr. Breznitsky painting himself in a favorable light. The Board challenged Dr. Bowen’s testimony on the basis that he relied upon the results of the “marginally valid” MMPI-2. Dr. Bowen testified that when formulating his opinion, he took into consideration that the MMPI-2 results were “marginally valid,” but did not rely solely on the result in his evaluation of Mr. Breznitsky. Dr. Bowen testified that he considered the MMPI-2, his clinical observations during the evaluation, and his 30 years of experience working with drug, alcohol, and mental health clients to reach his conclusion that Mr. Breznitsky was safe to practice as a registered mental health counselor intern. Respondent also challenged the urinalysis test conducted by Dr. Bowen on the basis that he collected a urine sample that was not physically “observed.” Dr. Polles questioned the results of the panel test used by Dr. Bowen and explained that the panel tests are screening tools, inaccurate, and not appropriate for independent evaluations for substance use disorders. The question raised was whether there was an opportunity for tampering with the test results without someone directly observing the production of the urine sample. Dr. Bowen credibly testified that the method he used to administer the test was standard industry practice among private practitioners. There was also no credible evidence offered at hearing to demonstrate that Mr. Breznitsky tampered with the urine sample. The urinalysis test administered by Dr. Bowen returned negative for substances tested on that date and the results are accepted. Dr. Polles’ Testimony Respondent offered the testimony of Alexandria Polles, M.D., the medical director and CEO of PRN. PRN is designated as one of the State of Florida’s impaired practitioner programs. It serves as a consultant to the Florida Department of Health on matters of practitioner impairment. The mission of PRN is to protect public health, safety, and welfare. It oversees the process for evaluation of professionals referred to the program, if needed, and provides monitoring of recommended treatment. Dr. Polles is certified by the American Board of Psychiatry and Neurology, the American Board of Addiction Medicine, and is a Fellow of the American Psychiatric Association. Dr. Polles has served on the faculty of the University Medical Center at the University of Florida, and at the Osteopathic School of Medicine in Hattiesburg, Mississippi. She has authored a number of peer-reviewed articles, contributed to texts, and given many lectures. Dr. Polles testified that evaluators approved by PRN must have experience in the area of concern for the evaluation. Moreover, evaluators approved by PRN are required to attend an annual meeting to review what their evaluations must include. Dr. Polles explained that in addition to the collection of information, PRN requested certain laboratory tests to assist in the evaluation, which included an “observed” urine test, a blood test for alcohol use, and a HairStat test. “Observed” urine tests means that a healthcare provider actually observes urine directly collected in the specimen cup. Dr. Polles testified that “observation” prevents substitution or tampering with the specimen by the donor. Dr. Polles did not evaluate Mr. Breznitsky, as she does not perform evaluations. Thus, her testimony does not offer a first-hand assessment of whether Mr. Breznitsky could practice as a registered mental health counselor intern with reasonable skill and safety. However, Dr. Polles accepted Dr. Wilson’s conclusion that Petitioner is not safe to practice without treatment. She further testified that based on her training, alcohol use disorder is a lifetime illness. Dr. Aufderheide’s Testimony Respondent also presented Dr. Aufderheide as an expert. Like Dr. Polles, he did not evaluate Mr. Breznitsky and offered no opinions related to whether he has any mental health or substance abuse disorders or whether Mr. Breznitsky could practice as a mental health counselor intern with reasonable skill and safety. Dr. Aufderheide has been chief of mental health services with the Florida Department of Corrections for 17 years. Dr. Aufderheide ensures that all psychiatrists, psychologists, and mental health professionals are appropriately licensed and credentialed. He has been licensed as a psychologist in Florida since 1993, and is Board-certified in correctional psychology. Dr. Aufderheide was offered as an expert in treating mental health practitioners for mental health disorders and substance abuse, and co- occurring morbidities. Dr. Aufderheide’s testimony focused in part on the MMPI-2 test administered by Dr. Bowen. Similar to Dr. Bowen’s explanation, Dr. Aufderheide testified that the MMPI-2 is a psychological test that measures psychopathology, psychological and behavioral dysfunction, and personality traits. Dr. Aufderheide believes the MMPI-2 is not intended to be used by professionals to interpret mental status evaluations and other tests. Although Dr. Aufderheide was concerned with the evaluation performed by Dr. Bowen, those concerns were persuasively addressed through Dr. Bowen’s testimony at the final hearing. Thus, the undersigned finds that Dr. Bowen’s evaluation and conclusions are credited. Dr. Abbas’ Testimony Dr. Abbas, a forensic toxicologist, testified at the hearing as well. He works for United States Drug Testing Laboratories (USDTL). USDTL tests biological samples for drugs, as well as alcohol biomarkers. Dr. Abbas was familiar with the testing of the urine sample provided by Mr. Breznitsky. Dr. Abbas is currently the manager of the certification department that reports all the positive results reported out of USDTL’s laboratory. The parties stipulated to the validity of the two test results, i.e., the HairStat Specimen No. 7374951 (the hair test) and the PEth test (blood test), which were both processed by USDTL. The PEth test uses a sample of dried blood. Regarding the PEth test, Dr. Abbas’ testimony was critical as it pertained to Dr. Wilson’s opinion regarding the frequency and the last time Mr. Breznitsky consumed alcohol. Most important, his testimony rebutted Dr. Wilson’s testimony pertaining to the ability to determine the frequency of consumption of alcohol during a specified time period. Specifically, he testified that “he could only report if the test is positive or negative. He could not state how much alcohol a person consumed in the last 28 days; he could not state how frequently a person consumed alcohol in the last 28 days; and he could not state the quantity a person consumed in the last 28 days.” Dr. Abbas determined that Petitioner’s PEth test results were positive for phosphatidylethanol at 181 nanogram per milliliter. The PEth test results also referenced a confirmed cutoff of 20 nanograms per milliliter. The cut off is an industry-wide value that is used as a threshold, and any specimen measured at 20 and above is considered to be positive. The initial testing was done on a similar instrument that the confirmatory testing is done using liquid chromatography mass spectrometry. Dr. Abbas further testified to the results confirmed by USDTL from Petitioner’s second hair sample taken by Dr. Wilson’s office. The results were reported positive as follows: 1) Benzoylecgonine: positive 524 pg/mg; 2) Cocaine: positive 2595 pg/mg; and 3) cocaethylene: positive 773 pg/mg. Dr. Abbas explained that hairs are a reservoir matrix where drugs collect and degrade over time. Therefore, whenever a reservoir matrix is examined, you cannot pinpoint when somebody used it, how much they used it, and how often they used it. It simply reflects that an individual used a certain substance within the three-month period prior to collection and/or was exposed to it. Dr. Abbas’ ultimate conclusions from the test results for Mr. Breznitsky were that they were negative for: amphetamines, opiates, PCP, and cannabinoids. The results were presumptive positive for cocaine and were confirmed positive for: benzoylecgonine, cocaine, and cocaethylene. Mr. Breznitsky’s Testimony Personal and Criminal Background Mr. Breznitsky acknowledged that he has a criminal history and a past with substance use. His criminal history began more than 10 years prior to submitting his application for registration as a mental health counselor intern. The most recent criminal conviction involving alcohol, occurred in 2007. Mr. Breznitsky’s substance use, which contributed to his criminal history, stemmed from stress related, in part, to loss of key family members. He testified that his mother, grandmother, and grandfather died within a two-year time period. Due to the stress of the deaths, Mr. Breznitsky began drinking heavily. Following the separation from his long-time girlfriend of five years, Mr. Breznitsky began drinking more heavily on a daily basis. Petitioner subsequently had three Driving Under the Influence (DUI) arrests within an 18-month period. His first arrest occurred in April 2005. He was placed on probation, completed a DUI Level I course, and had a six-month licensure suspension. Mr. Breznitsky’s second DUI occurred in 2007. His third DUI occurred a few days after he posted bail from his second DUI and both cases were consolidated. Additionally, Mr. Breznitsky reported that, while in high school, he was arrested for Criminal Mischief while drinking alcohol. In 2011, while still on probation, he was a passenger in a car driven by his friend who was pulled over. He was charged with a Violation of Probation (“VOP”) for being out of the county and not informing his Probation Officer. There was no evidence offered at hearing that he was intoxicated or that alcohol was involved. He was arrested for the VOP offense and spent nine and a half months in prison. There has been no subsequent involvement with law enforcement for DUI or involving alcohol since 2007. Mr. Breznitsky has presented persuasive evidence that he has changed his life since his last known criminal offense. Mr. Breznitsky has owned BRIC for a number of years, and has received awards from the community for his work. Mr. Breznitsky has been married and has been approved to adopt his two children. To the contrary, the Board did not present any competent substantial evidence of behavior that demonstrated Mr. Breznitsky has not been rehabilitated from his criminal past since his last criminal offense. Mr. Breznitsky’s Treatment History Petitioner admitted that “he used cocaine when he drank alcohol; he never really experimented too much outside of that but ultimately just became a completely different person, and I drank to numb my emotions. I drank to cope with trauma; I drank to cope with depression, shame, guilt, family stuff, the loss of my mother.” In 2009, Petitioner was required to complete a 12-month Residential program where he was treated for alcohol use disorder at Phoenix House in Ocala. Mr. Breznitsky eventually continued treatment at Phoenix House on a Partial Hospitalization Plan/Intensive Outpatient Program basis, completing a total of 18 months of treatment. He was placed on five years’ criminal probation and had his driving privileges suspended for five years with the requirement that he have an interlock device placed for six months once returning to driving. His treatment did not involve treatment with a psychiatrist nor was he prescribed psychotropic medications. While in treatment, he had an introduction to Twelve Step Recovery and attended Narcotics Anonymous meetings. Mr. Breznitsky remained sober during his 18 months at Phoenix House and continued to abstain from alcohol for approximately 3 to 4 years, after which time, abstinence from alcohol was no longer required as part of his treatment. Mr. Breznitsky’s Recovery Plan Mr. Breznitsky testified that while in treatment, he focused on PTSD, depression, self-harm, and personal mental health recovery because those were the stressors that led to his alcohol use. He indicated that he regularly sees his therapist, checks in with his supervisors, maintains close friends, and ensures that he engages in self-care. Additionally, at hearing, Respondent testified that he currently maintains his sobriety by regularly eating breakfast each morning, meeting with his pastor on a weekly basis, attending church on Sundays, regularly exercising, and using a sensory deprivation tank. Dr. Aufderheide was asked to opine on whether Petitioner’s recovery plan of attending church, regularly engaging with colleagues and close friends, surfing, exercising, and refuge recovery, would be recognized by the medical community. He did not offer an opinion regarding the efficacy of the treatment plan recommended by Dr. Wilson. However, he suggested that a recovery plan should include drug testing. Ultimate Findings of Fact In general, Dr. Wilson was concern with the frequency and amount of alcohol Mr. Breznitsky was consuming. His concerned stemmed from his belief that Mr. Breznitsky had recently drank with such frequency that it would affect his ability to practice as a mental health intern with reasonable skill and safety. However, there was not sufficient competent substantial evidence to demonstrate that Mr. Breznitsky exhibited behavior to demonstrate he was impaired. The positive test results for alcohol and coathelylene is significant. However, the positive test results alone do not prove Mr. Breznitsky is unable to practice safely as a registered mental health intern. Dr. Wilson testified that he diagnosed Mr. Breznitsky with alcohol use disorder moderate to severe, because he believed Mr. Breznitsky consumed alcohol in larger amounts over a longer period of time than intended; his inability to control his alcohol use issues resulting in a failure to fulfill a major obligation at work; and his recurrent alcohol use in situations in which it was hazardous, i.e., driving while under the influence of alcohol. He also diagnosed him with cocaine-type use disorder of mild to moderate severity. At the final hearing, Dr. Wilson maintained his opinion that Mr. Breznitsky was not safe to practice as a registered mental health intern based in part on his “suspicions that [Mr. Breznitsky’s] use was more recent than three months ago because now the three-month window has moved two weeks additional yet he’s still testing positive.”4 In addition, they were based 4 At the final hearing, Dr. Wilson testified regarding his suspicions on more than one occasion when formulating his opinion about Mr. Breznitsky’s ability to practice as a registered mental health intern. His testimony about his suspicions include, but are not limited to, the following: Q: Yeah let’s take them one at a time and look at some of the comments that you made in those and what they were based on. Dimension 1, what was your conclusion there? A: I felt he was at a moderate risk for being intoxicated based on the discrepancy between what he was telling me and the laboratory result of his PEth test. They were incongruent. And I believe I did not know for sure how much this gentleman was drinking. So I claimed he was at moderate risk, and I felt he was event at moderate risk for going through alcohol withdrawal if he keeps drinking based on the fact that they didn’t know how much he was drinking, but I knew he had a very high PEth test.” in part on assumptions that were not proven at the hearing and more importantly, on facts that were based on incidents from Mr. Breznitsky’s past history that occurred at least 10 years before his evaluation. Dr. Wilson’s opinions appeared to be influenced by his honest and genuine belief that Mr. Breznitsky would benefit from the care and treatment he could receive as a participant in PRN. He may well be correct. At best, he demonstrated that Mr. Breznitsky was not able to practice with reasonable skill and safety more than 10 years before his evaluation. However, the issue is not whether there is suspicion or a risk of Mr. Breznitsky being unsafe to practice, but rather the issue is whether he is unsafe to practice at this time. Nothing in the record demonstrated that Mr. Breznitsky was a danger while working with clients or patients. The evidence taken as a whole is not sufficient competent and substantial evidence that Mr. Breznitsky is now unable to practice as a registered mental health intern with reasonable skill and safety by reason of illness or use of alcohol, drugs, narcotics, or chemicals, or any other type of material, or as a result of any mental or physical condition.
Conclusions For Petitioner: Stephen B. Burch, Esquire Smith & Associates Suite 540 709 South Harbor City Boulevard Melbourne, Florida 32901 For Respondent: Timothy Frizzell, Esquire Robert Antonie Milne, Esquire John Benjamin Fricke, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Clinical Social Work, Marriage and Family Therapy, and Mental Health Counseling issue a final order granting Petitioner's application for registration as a mental health counselor intern, which may include conditions to ensure Petitioner’s continued sobriety. DONE AND ENTERED this 11th day of February, 2022, in Tallahassee, Leon County, Florida. COPIES FURNISHED: S YOLONDA Y. GREEN Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of February, 2022 Timothy Frizzell, Esquire Office of the Attorney General PL-01, The Capitol Tallahassee, Florida 32399 Robert Antonie Milne, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Stephen B. Burch, Esquire Smith & Associates Suite 540 709 South Harbor City Boulevard Melbourne, Florida 32901 John Benjamin Fricke, Esquire Office of the Attorney General PL-01, The Capitol Tallahassee, Florida 32399 Kimberly Marshall, MPH, JD Executive Director Board of Clinical Social Work, Marriage and Family Therapy and Mental Health Counseling Department of Health 4052 Bald Cypress Way, Bin C06 Tallahassee, Florida 32399 Louise St. Laurent, General Counsel Department of Health 4052 Bald Cypress Way, Bin C65 Tallahassee, Florida 32399
The Issue The issue in this matter is whether the Department of Health should discipline Respondent’s clinical social worker’s license.
Findings Of Fact The Department is the state agency charged with regulating the practice of clinical social work in Florida. See § 20.43 and chs. 456 and 491, Fla. Stat. Respondent is a licensed clinical social worker in the State of Florida, having been issued license number SW 14255 on February 14, 2017. Respondent received his Licensed Master Social Work degree in New York in May 2006. Between August 2013 and August 2017, Respondent worked as a clinical social worker/psychotherapist at Compass Counseling Services, LLC (“Compass Counseling”), in Orlando, Florida. The Department seeks to discipline Respondent based on an incident that occurred on July 19, 2017. The Department accuses Respondent of committing “sexual misconduct” with a patient. The Administrative Complaint specifically alleges that, during a counseling session in his office, Respondent: told Patient L.P.[7/] that she was attractive, followed Patient L.P. to the door and grabbed her buttocks with his hand, and, grabbed Patient L.P.’s arm, pulled her towards him, and attempted to kiss her. “Sexual misconduct” in the practice of clinical social work, mental health counseling, or psychotherapy is prohibited under section 491.0111. “Sexual misconduct” is defined by rule 64B4-10.002, which provides: (1) It is sexual misconduct for a psychotherapist to engage, attempt to engage, or offer to engage a client in sexual behavior . . . whether verbal or physical, which is intended to be sexually arousing, including kissing; . . . or the touching by either the psychotherapist or the client of the other’s breasts, genital areas, buttocks, or thighs, whether clothed or unclothed. Section 491.009(1)(k) authorizes the Department to discipline Respondent for “sexual misconduct” up to and including permanent revocation of his clinical social worker’s license. In July 2017, L.P. was 27 years old. She was (and is currently) living with a transgender man, Kode Hulett. L.P. refers to Mr. Hulett as her husband, although they are not legally married as of yet. At the final hearing, L.P. testified that she suffers from a number of mental health conditions including Attention- Deficit/Hyperactivity Disorder (“ADHD”), auditory processing disorder, and bipolar disorder, as well as anxiety, anger issues, depression, insomnia, and mood disorder. In addition, L.P. experiences post-traumatic stress disorder (“PTSD”) stemming from past sexual abuse. During her testimony, L.P. also disclosed that she has a very bad memory and gets confused very easily. She urged, however, that her ailments do not affect her mental awareness. Conversely, L.P. is considered fully “disabled” in that she cannot work due to her mental health illnesses. L.P. explained that she has received mental health counseling since she was young. In June and July 2017, L.P. received psychotherapy services from Respondent at Compass Counseling. L.P. relayed that she was searching for a new therapist and (to the best of her memory) her insurance company recommended Compass Counseling. L.P. and Respondent met on three occasions, June 23, 2017, July 6, 2017, and July 19, 2017. Each appointment started at 1:00 p.m. and lasted approximately an hour. During all sessions, L.P. met with Respondent alone in his office, with the door closed. At L.P.’s first visit, Respondent initially informed L.P. that he was leaving Compass Counseling shortly for another job. Therefore, he offered to refer her to another mental health therapist (Ashlyn Douglass-Barnes, L.C.S.W.) if she so desired. Until he left, however, he was willing to meet with her. (In August 2017, Respondent departed Compass Counseling for a job with Magellan Behavioral Health. There, he manages a customer- provider call center and does not treat patients.) During their first session on June 23, 2017, Respondent colloquially introduced himself as “Dr. G.” Respondent then conducted an initial evaluation of L.P. and prepared a Complete Evaluation/Biopsychosocial Assessment. In his assessment, Respondent recorded that L.P. chiefly complained of “mood swings, anxiety, insomnia, attentional issues, auditory processing issues, and post traumatic stress.” He added that L.P. had experienced panic attacks two to three times a month for years, as well as depressive disorder. Respondent also wrote that L.P. experienced anxiety symptoms “a few times a week.” Finally, Respondent noted that L.P.’s PTSD resulted from several instances of physical and sexual abuse she suffered as a youth and a young adult. Despite her issues, Respondent wrote that L.P. appeared: [C]alm, friendly, happy, attentive, communicative, well groomed, overweight, and relaxed. . . . [L.P.’s] behavior in the session was cooperative and attentive with no gross behavioral abnormalities. Respondent recorded the following diagnoses: bipolar II disorder, panic disorder [episodic paroxysmal anxiety], and (chronic) PTSD. Regarding L.P.’s PTSD, Respondent remarked that L.P. suffered from flashbacks to the traumatic event, which resulted in feelings of detachment or estrangement from others. Respondent also documented that L.P. was prescribed several psychotropic medications including Effexor and Lamictal. (Other medical records from 2017 indicate that L.P. was also prescribed and/or taking Alprazolam, BuSpar, Concerta, Doxepin, Geodon, Hydrocodone/Acetaminophen, Lamotrigine, Meclizine, Omeprazole, Oxycodone, Quetiapine Fumarate, Promethazine, Robaxin, Rozerem, Seroquel, Sucralfate, Venlafaxine, Xanax, and Zyprexa.) As part of his assessment, Respondent formulated a six- month treatment plan for L.P., which included ongoing individual psychotherapy sessions. During their second psychotherapy session on July 6, 2017, Respondent again wrote that L.P. appeared: [C]alm, friendly, happy, attentive, communicative, casually groomed, over weight, and relaxed. . . . Mood presents as normal with no signs of either depression or mood elevation . . . thinking is logical, and thought content appears appropriate. . . . Judgment appears fair. Respondent recorded that L.P. mainly discussed her issues coping with depression and impulsivity. Respondent responded by providing “unconditional positive regard, as well as support and encouragement in [L.P.’s] therapeutic endeavors.” Respondent identified “Anxiety” and “Depressed Mood” as L.P.’s active problems in need of treatment. L.P. and Respondent met for their third (and final) appointment on July 19, 2017. During this session, Respondent recorded in L.P.’s Progress Notes that she appeared stable and made no psychiatric complaints. Respondent described L.P. as: [C]oherent and spontaneous. Mood presents as normal with no signs of either depression or mood elevation. Affect is appropriate, full range, and congruent with mood. Associations are intact and logical. There are no apparent signs of hallucinations, delusions, bizarre behaviors, or other indicators of psychotic process. Associations are intact, thinking is logical, and thought content appears appropriate. . . . Judgment appears fair. There are no signs of hyperactive or attentional difficulties. Respondent, once again, identified “anxiety” as L.P.’s active problem, which manifested in PTSD. Respondent wrote that “Clinician provides unconditional positive regard, as well as support and encouragement in [L.P.’s] therapeutic endeavors. . . . A Client-Centered and Empowerment therapeutic approach was used in session to assist [L.P.] in recognizing personal strengths, as well as how to use them to manage presenting problems.” The incident in question occurred just after L.P. and Respondent finished their final session. As was typical, L.P. and Respondent were alone in his office, and the door was closed. Initially, although Respondent was leaving Compass Counseling soon, he asked if L.P. would schedule one last appointment with him. L.P. agreed. She stood by his desk as they selected another date on his computer calendar. At that point, L.P. turned and walked to the door to leave the room. Just as she reached the door, L.P. testified that she felt Respondent’s hand grab her right buttock in a “very sexual” manner. L.P. spun around, swatted his hand away, and exclaimed, “What the f***? I’m married.” She then pivoted back to the door. L.P. asserted that when she reached for the door knob, however, Respondent grabbed her wrist. L.P. stated that she then heard Respondent say, “You’re just really attractive.” L.P. expressed that she turned toward Respondent, he leaned in close to her. She sensed (by her “intuition”) that he wanted to kiss her, but he did not. L.P. testified that she pushed him away and again said, “What the f***? I’m married.” L.P. was then able to open the door and leave Respondent’s office. When L.P. exited Respondent’s office, he accompanied her down the hallway. They walked together through the office lobby and out of the building. In the parking lot, they separated. L.P. walked to her car, where Mr. Hulett was waiting in the driver’s seat. Respondent went to his car and retrieved a business card for an auto shop. Respondent then walked over to L.P.’s car. He approached Mr. Hulett in the driver’s seat and offered him the business card. Mr. Hulett cracked down the window and accepted the card. At that point, Mr. Hulett and L.P. drove away from Compass Counseling for a trip they had previously planned for St. Augustine. Mr. Hulett testified at the final hearing in support of L.P.’s story. Mr. Hulett and L.P. have lived together for over nine years. He “believed” he accompanied L.P. on her visit to Compass Counseling on July 19, 2017. During L.P.’s counseling session, Mr. Hulett waited in his car in the parking lot. While he did not witness L.P.’s encounter with Respondent, Mr. Hulett described L.P.’s behavior and demeanor immediately following her appointment. Mr. Hulett saw L.P. and Respondent exit the Compass Counseling building together after her appointment. He then observed Respondent motion for L.P. to come to his car. He watched as L.P., instead of following Respondent, headed to their car and climbed into the passenger seat. He stated that Respondent then approached their car and offered him a business card for a car mechanic through his driver’s side window. (Mr. Hulett confirmed that his car was having engine troubles.) During this interaction, Mr. Hulett testified that he immediately noticed that L.P. was not acting “regular.” She seemed nervous, and he sensed something was wrong. L.P., however, stayed silent. He then drove away from Compass Counseling. Mr. Hulett explained that they had planned to leave for St. Augustine immediately after L.P.’s appointment. After they started driving, however, Mr. Hulett noticed that L.P. appeared “physically upset.” Therefore, he repeatedly asked her what was wrong. Around 20 minutes later, after they reached the highway (I-4), L.P. opened up to him. Mr. Hulett testified that L.P. told him what had happened in Respondent’s office. Mr. Hulett specifically recalled that L.P., who had started crying, said that Respondent touched her inappropriately; she told him to stop, but he was persistent. At that point, Mr. Hulett and L.P. discussed what to do next. They decided to press on with their vacation. They would deal with the matter when they returned to Orlando. Mr. Hulett disclosed that they did not report the incident until after their trip ended, five days later. At the final hearing, L.P. testified that she waited to tell Mr. Hulett what had transpired in Respondent’s office because she feared his reaction. She was afraid Mr. Hulett would angrily and rashly confront Respondent. Instead, after she recounted Respondent’s conduct, L.P. and Mr. Hewlett continued on their vacation to St. Augustine. On the other hand, L.P. asserted that she called Compass Counseling 20 to 30 minutes after they drove away to cancel her next appointment with Respondent. L.P.’s cell phone records document three calls to Compass Counseling on July 19, 2017. Two were placed prior to her 1:00 p.m. appointment (12:18 p.m. and 12:23 p.m.). A third call was made at 2:04 p.m., approximately nine minutes after Respondent’s Progress Notes record that he finished L.P.’s counseling session (1:55 p.m.). The final call lasted one minute and 29 seconds. No evidence was presented documenting the subject matter of the 2:04 p.m. call. During her testimony, L.P. hesitantly agreed that the 2:04 p.m. call was the one during which she cancelled her appointment. (L.P. was under the impression that she met with Respondent from 12:00 p.m. to 1:00 p.m. on July 19, 2017. However, she conceded that she would not have phoned Compass Counseling at 12:18 p.m. or 12:23 p.m. if she was actually in her therapy session with Respondent at that time.) Other than the phone call to Compass Counseling at 2:04 p.m., L.P. did not contact any person or entity to report the incident until five days later on July 24, 2017. After leaving Respondent’s care, L.P. received psychotherapeutic counseling from Ashlyn Douglass-Barnes, a licensed clinical social worker who currently works at Jewish Family Services in Winter Park, Florida. Before Jewish Family Services, Ms. Douglass-Barnes worked at Compass Counseling from March 2014 through February 2017, where she met Respondent. Respondent referred L.P. to Ms. Douglass-Barnes during their first meeting on June 23, 2017. He contacted Ms. Douglass- Barnes through Facebook messenger. Respondent wrote: I have an intake today that would like to work with a female clinician. I have advised her that I am not going to be here much longer, and that I’d happily connect her with someone who is empathic, caring, and warm. I think this would be a perfect fit. . . . She’s 27 y.o. as well and is very sweet. Before Ms. Douglass-Barnes met L.P. for their first appointment, however, L.P. called her on July 24, 2017. Ms. Douglass-Barnes testified that L.P. expressed that “I need to tell you something, but it has to stay between us.” With Ms. Douglass-Barnes’s encouragement, L.P. confided that “last Wednesday [June 19, 2017], Dr. G. [Respondent] grabbed my butt and tried to kiss me.” Ms. Douglass-Barnes also recalled L.P. telling her that when Respondent grabbed her, she “turned around and yelled at him.” Ms. Douglass-Barnes invited L.P. to come to her office that day. When L.P. arrived at Ms. Douglass-Barnes’s office, L.P. repeated that Respondent made a sexual advancement towards her. Ms. Douglass-Barnes specifically recalled L.P. telling her the following: Respondent touched her butt as their therapy session ended. L.P. then slapped his hand away, and screamed, “What the hell, I’m married.” Respondent also tried to kiss her. Respondent subsequently told L.P., “I’m so sorry. I’m just so attracted to you.” Ms. Douglass-Barnes reviewed with L.P. all available options to report the incident (law enforcement, complaint to the Department, and Compass Counseling’s insurance carrier). L.P. wanted to exercise all options. Therefore, with L.P.’s acquiescence, Ms. Douglass-Barnes called 911 to report a sexual assault. A deputy sheriff from the Orange County Sheriff’s Office arrived at Ms. Douglass-Barnes’s office approximately 90 minutes later. L.P. provided a written statement to the deputy stating: On Wednesday July 19, 2017 I had an appt. w/ [Respondent]. When I arrived to the appt he brought me into his office and we began our session. When we were done with the session he told me he wanted one more appt with me. I said OK let’s make the appt. We made the appt and when I walked out of his office he grabed [sic] my butt. I slaped [sic] his hand away and said what the f[***] I am married. [Respondent] said he was sorry. You are just really attractive. Then he tried to kiss me and I pushed him away and said what the f[***] dude I am married again. He said he [was] sorry your [sic] just really attractive. I walked out of his office and he walked me out to my car. When I told him I was fine he tried to get me to go with him to his car. I said no I will meet you in my car. . . . He walked up to my car and gave my husband a card for [a] car fixing place. I DID NOT GIVE HIM ANY PERMISSION TO TOUCH ME AT ALL!! I want to prosecute and am willing to go to court for this.[8/] L.P. also told the police that Respondent had never attempted to touch her before the July 19, 2017, incident. Also on July 24, 2017, Ms. Douglass-Barnes, again with L.P.’s consent, prepared a formal complaint with the Department. On the Complaint Form, Ms. Douglass-Barnes indicated “abuse” and “sexual contact” were the reasons for L.P.’s complaint. L.P. signed the form. Ms. Douglass-Barnes faxed the Complaint Form to the Department that day and attached L.P.’s statement to the Sheriff’s Office. In addition, in August 2017, L.P. contacted a personal injury law firm. On March 19, 2018, the law firm wrote Compass Counseling on L.P.’s behalf complaining about the July 19, 2017, incident. The letter demanded $275,000 to settle L.P.’s case. Over the next few days, Respondent reached out to Ms. Douglass-Barnes expressing an urgent need to talk to her. Respondent did not explain his reasoning, although she suspected he was simply seeking support and unaware of her involvement. Ms. Douglass-Barnes avoided directly speaking with Respondent. At Compass Counseling, Ms. Douglass-Barnes considered Respondent a friend and colleague with whom she consulted and talked two to three times a week. Based on their time together, Ms. Douglass-Barnes described Respondent as a very effective therapist and passionate about his practice. She commented that he went over and above to help his clients. However, in light of L.P.’s accusations, on July 26, 2017, she informed Respondent that it was in their best interest not to communicate any further. Ms. Douglass-Barnes has had no contact with Respondent since that date. After meeting on July 24, 2017, L.P. continued to see Ms. Douglass-Barnes for cognitive behavior therapy. They met approximately every month from August 1, 2017, through June 5, 2018. L.P. first discussed her encounter with Respondent on October 4, 2017, during their third session. They also talked about the incident on April 9, 2018, May 8, 2018, and June 5, 2018. As part of her testimony, Ms. Douglass-Barnes also provided her insight into how L.P.’s mental health conditions affected her ability to perceive and understand what was happening around her in July 2017. Ms. Douglass-Barnes conveyed that L.P. has been diagnosed with auditory processing disorder. With this condition, L.P. has difficulty processing information or instructions when she is under emotional pressure or stressed. Auditory processing disorder can also cause L.P. to become confused. Consequently, L.P.’s ability to interact with others is affected. Ms. Douglass-Barnes also commented that L.P. is not manic, but does exhibit some traits of mania. This ailment is evident in L.P.’s impulsiveness. But, it does not affect her perception. Similarly, L.P. presents some traits of borderline personality disorder, but has not been diagnosed with this mental illness. (At the final hearing, Ms. Douglass-Barnes explained that borderline personality disorder is a mental condition characterized by pervasive abnormalities of perception, behavior, thinking, and relationships. Borderline personality disorder causes a person to operate in their own world, i.e., not in reality.) Finally, L.P. does not suffer from psychosis, which would substantially affect her ability to comprehend what is happening around her. Despite these mental health disorders, Ms. Douglass- Barnes testified that she never doubted L.P.’s ability to accurately recognize and understand what happened to her in Respondent’s office on July 19, 2017. Neither does she believe that L.P.’s mental health conditions impair her ability to tell the truth. Ms. Douglass-Barnes testified that, based on her interactions with L.P. and the consistency with which L.P. described the facts and circumstances of the encounter, she believes that L.P. accurately reported that Respondent “sexually touched/assaulted her inappropriately.” After L.P. reported the incident to Ms. Douglas-Barnes, on July 25, 2017, Compass Counseling received a phone call from a caller who did not identify herself. Luz Rosa was working the receptionist desk and took the call. Although the caller did not provide her name, Ms. Rosa was able to match the phone number to L.P. based on the information in her office records. Therefore, Ms. Rosa typed up a report of the call to include in L.P.’s file. (L.P.’s cell phone records from that date document a call that was placed to Compass Counseling at 2:46 p.m., which lasted approximately 10 minutes.) According to Ms. Rosa’s typed report, as well as her testimony at the final hearing, the caller (L.P.) asked about the cost of a first time visit, as well as the amount of the co-pay for follow-up appointments. Ms. Rosa relayed that the first appointment, without a medical plan, was priced at $75.00. The cost of follow-up visits differed depending on the plan. At that point, Ms. Rosa expressed that the caller became very upset. The caller threatened to sue Compass Counseling for charging too much to her medical plan. The report did not include, nor did Ms. Rosa remember, any complaint from the caller regarding Respondent’s services or an incident on July 19, 2017. On August 8, 2017, L.P. called Compass Counseling again. She left a voice mail canceling an appointment. On her message, L.P. relayed that “something else came up.” On August 16, 2017, Compass Counseling received another call from someone who did not identify herself. Dalys Melendez was the front desk coordinator that day and answered the call. Although the caller did not provide her name, Ms. Melendez was able to match L.P. to the phone number through caller ID. Ms. Melendez typed a record of the call and added it to L.P.’s file. (L.P.’s cell phone records also document a call placed to Compass Counseling at 10:40 a.m. that day, which lasted one minute and 34 seconds.) During the call, the caller (L.P.) asked if Respondent was working at Compass Counseling. After Ms. Melendez responded that he was not there, the caller became angry, screamed a profanity, then hung up the phone. At the conclusion of her testimony, L.P. stated that, in response to the July 19, 2017, incident, she wants Respondent’s license taken away. She would also like to see him go to jail. L.P. called Respondent’s actions “disgusting” and “sick.” She voiced that she should have been able to fully trust Respondent and feel safe with him during her therapy sessions, but Respondent violated that trust. L.P. expressed that what Respondent did to her should never happen to anyone else. Respondent elected not to testify at the final hearing.9/ Instead, Respondent contested the Department’s allegations by attacking the veracity of L.P.’s story. Respondent challenged L.P.’s testimony on two fronts. First, Respondent argues that the facts and circumstances surrounding the event do not support L.P.’s narrative. Second, Respondent asserts that L.P. has credibility issues which prevent the Department from meeting its burden of proof based on her testimony. To present a more comprehensive picture of the Compass Counseling office at the time of L.P.’s appointment, Respondent offered the testimony of two individuals who were working in Compass Counseling on the afternoon of July 19, 2017. Karina Flores is a psychotherapist who has provided counseling services at Compass Counseling since 2016. Ms. Flores initially described the Compass Counseling office layout. Compass Counseling operates in a two-story building. Respondent’s office is located on the first floor. The first floor includes a lobby with a receptionist desk. Through a door behind the receptionist desk is a hallway that connects three offices. Office 1 is located at the end of the hall with a door that faces the lobby. Office 2 is the middle office. Office 3 is adjacent to Office 2 and is closest to the lobby. Respondent used the second/middle office. It shared walls on both sides with Offices 1 and 3. On July 19, 2017, as Respondent was finishing his session with L.P., Ms. Flores was sitting in Office 3 waiting to confer with him about one of her clients. Her door was ajar, and she had a clear view of the hallway leading from Respondent’s office to the lobby. Ms. Flores described the hallway as a small, tight location. She also relayed that the office walls were very thin. Consequently, she could “absolutely” hear conversations coming from other offices, as well as the hallway. Ms. Flores has used all three offices for appointments, and her experience is the same: she can “hear anything” that was said in the adjoining offices. Ms. Flores expounded that, although she might not be able to make out individual words, she has clearly heard people crying, laughing, talking, or yelling through the doors and walls. Ms. Flores testified that, while waiting to speak with Respondent, she heard two voices talking back and forth in his office. The conversation was conducted in normal tones. Occasionally, she heard “giggling.” Ms. Flores further recalled that she did not hear either person raise their voice or yell or scream. Neither did she hear any cries of distress. Ms. Flores confidently asserted that if someone had shouted “what the f***? I’m married” twice while standing at the door of Office 2, she would have heard it. Ms. Flores declared that she did not hear any such outburst. What Ms. Flores did hear was the door to Respondent’s office open at the end of his appointment. Then, in her peripheral vision, she saw Respondent walk with a woman wearing a blonde ponytail to the lobby. Ms. Flores recalled that the two were talking “in a friendly manner” as they passed her door. Shortly, thereafter, Respondent returned, and she met him in his office. Ms. Flores “particularly” recalled that Respondent commented that he had just offered his patient information about an auto mechanic. Respondent also mentioned that he met his patient’s spouse and dog. (L.P.’s dog was in the back seat of Mr. Hulett’s car.) Finally, Ms. Flores offered her observations of Respondent’s psychotherapy practice. She found him friendly and professional. He was well-liked and considered a good therapist. Ms. Flores also recalled that Respondent called her about a week after the incident and divulged that he had been accused of sexual misconduct. Ms. Flores testified that Respondent appeared shocked and surprised by the allegations. Dr. Roberta Wildblood was also present at Compass Counseling on July 19, 2017, when L.P. met with Respondent. Dr. Wildblood is a clinical psychologist who has provided services at Compass Counseling since 2015. On July 19, 2017, Dr. Wildblood was scheduled to meet a patient at 2:00 p.m. in Office 1 (her office). However, she did not recall whether she was actually present when L.P. walked out of Office 2 with Respondent. She did not see or hear L.P. in the building that afternoon. However, similar to Ms. Flores, Dr. Wildblood testified that voices can be heard through the office walls. Dr. Wildblood echoed Ms. Flores in that she is not able to discern exact words while sitting in Office 1. Nevertheless, she has heard exclamations from counselors and clients. She has also heard a ball bouncing in another office. Dr. Wildblood also offered her experience working with Respondent. She described him as professional and highly regarded by his peers. She stated that he is gentle, kind, and an effective counselor. For her part, Ms. Douglass-Barnes agreed that voices can be heard through the office walls at Compass Counseling. To try and maintain privacy, Ms. Douglass-Barnes recalled that counselors routinely used noise machines in their rooms, and a radio played in the reception area. To counterbalance Ms. Douglass-Barnes’ testimony regarding the effect of L.P.’s mental health conditions, Respondent called Earl P. Taitt, Jr., M.D., to testify. Dr. Taitt is a psychiatrist who currently runs a private practice in Orlando, Florida. He is board-certified in psychiatry and neurology, as well as forensic medicine. Dr. Taitt testified as an expert in psychiatry. At the final hearing, Dr. Taitt described in detail the effect of the various mental health conditions from which L.P. suffers. He also offered his opinion on how L.P.’s mental illnesses affected her interpersonal functions with Respondent. Dr. Taitt stated that he formed his impressions based on a review of L.P.’s extensive medical and psychotherapy records, as well as his observations of her deposition and live testimony. Conversely, Dr. Taitt was careful to explain that he was not opining on L.P.’s truthfulness during her testimony at the final hearing. Further, he readily acknowledged that he has never personally examined or interviewed L.P. Neither does he possess any personal information regarding L.P.’s interaction with Respondent on July 19, 2017. Dr. Taitt’s diagnostic impression, based on his limited observations, is that L.P. suffers from borderline personality disorder. Dr. Taitt identified signs of borderline personality disorder in L.P.’s history of impulsivity, intense mood changes including anger (her most significant mood symptom), and unstable interpersonal relationships. Dr. Taitt explained that someone with borderline personality disorder exhibits abnormalities of perception relating to interpersonal relationships. Borderline personality disorder creates an impediment to social interactions and a person’s ability to accurately perceive the social interaction. Dr. Taitt opined that L.P.’s borderline personality disorder directly affected her ability to accurately relate to Respondent in his office on July 19, 2017. Consequently, when Respondent informed L.P. that their counseling sessions would be coming to an end, Dr. Taitt suggested that L.P. might have felt “a real or imagined abandonment.” Borderline personality disorder would have caused L.P. to experience a greater vulnerability to the fact that Respondent was leaving her treatment to another therapist. Therefore, L.P.’s report of sexual abuse may have been her vindictive reaction to the imagined abandonment. L.P. was lashing out at Respondent. Dr. Taitt further remarked that borderline personality disorder may have caused L.P. to misrepresent the facts of her narrative based on how she (incorrectly) perceived her interaction with Respondent in his office. Dr. Taitt also commented on the wide range of psychotropic medications L.P. was taking before and after July 19, 2017. He expressed that these medications could have impacted L.P.’s psychological conditions. Dr. Taitt further noted that the medication dosages L.P. was prescribed indicate that she was suffering from severe symptoms. Finally, Dr. Taitt discussed L.P.’s decision to proceed with her five-day trip to St. Augustine instead of immediately reporting the incident. He believed that going on a vacation following a sexual assault is atypical of someone who has actually experienced such misconduct. If L.P. truly encountered the inappropriate touching, Dr. Taitt thought that she would have disclosed it earlier. Lastly, Respondent presented the testimony of several former clients or parents of minor clients (Jessica Rosado, Erika Ana Camacho, and Marta Lopez). These witnesses described Respondent’s counseling methods and personal interactions during his therapy sessions. All were highly complimentary of his professionalism, and stated that Respondent never acted inappropriately with them. None of these witnesses, however, had personal knowledge of the allegations in this matter or knew L.P. Respondent presented them primarily for mitigation purposes. Based on the competent substantial evidence presented at the final hearing, the clear and convincing evidence in the record does not establish that Respondent engaged in behavior “which [was] intended to be sexually arousing” or that he touched L.P.’s buttocks on July 19, 2017. Accordingly, the Department failed to meet its burden of proving that Respondent committed “sexual misconduct,” which would support discipline under section 491.0111 and rule 64B-10.002(1).
Conclusions For Petitioner: Andrew James Pietrylo, Esquire Kristen M. Summers, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 For Respondent: Carol C. Schriefer, Esquire The Health Law Firm 1101 Douglas Avenue Altamonte Springs, Florida 32714
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Clinical Social Work, Marriage and Family Therapy and Mental Health Counseling, enter a final order dismissing the Amended Administrative Complaint against Respondent, Gerard Kruse. DONE AND ENTERED this 16th day of August, 2019, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 16th day of August, 2019.
Findings Of Fact In July, 1988, the Petitioner applied for renewal of dual annual licenses to operate both an alcoholism prevention and treatment program (APT) and a drug abuse treatment and prevention program (DATAP). On July 26, 1988, a representative of the Department, Aixa Reyes-Wajsman, made a site visit to Petitioner's facility to determine whether Petitioner was complying with the provisions of the Florida Administrative Code for the operation of an alcoholism prevention and treatment program (APT) and a drug abuse treatment and prevention program. The Department's representative found that the Petitioner was in violation of several administrative regulations, but the Petitioner took steps to comply with the regulations, and the Department renewed the Petitioner's regular annual DATAP license and regular annual APT license, authorizing the Petitioner to operate those programs through July 30, 1989. On June 27, 1989, a Department representative, Lorenzo Thomas, made a site visit to the Petitioner's facility to determine whether or not Petitioner was complying with regulations for the operation of an APT program. (The Petitioner requested renewal of the APT license only, not the DATAP license.) At the time, the Petitioner, primarily a small human development counseling service, had only two APT clients. By the time Mr. Thomas returned with his supervisor, Gail Potter, for a second site visit on July 27, 1989, the Petitioner had one additional APT client, who had just been accepted as a client. Although the Petitioner's client files included forms which would have allowed for the inclusion of initial and individualized treatment plans which identified target dates for completion of goals identified in the client's plan, the Petitioner did not utilize the forms so as to adequately describe the treatment plan or identify target dates. The Petitioner's client files did include progress notes. But the progress notes were incomplete and disorganized, some consisting of cryptic notes on pieces of scrap paper loose in the files, and did not adequately relate the progress of each client in accordance with the individual treatment plan. The Petitioner took the position that the notes were sketchy so as not to reveal client confidences in the event the records were required to be disclosed pursuant to a subpoena. One of the Petitioner's client files--the file on the new, third client--did not include a psychosocial assessment. The other two client files did include a partially completed psychosocial assessment, but neither was signed, credentialed and dated by the treating counselor. Since there had been no request for the release of client information on the Petitioner's three APT clients, there was no reason for the Petitioner's client files to include a client consent form for the release of confidential information. (The blank forms that the Petitioner had available for use in the event of a request for client information did not include a time limit for the release of such information.) The Petitioner's client files did not include evidence of the development and utilization of admission and discharge criteria or standards. The Petitioner distributed to its APT clients an information sheet upon admission, but the information sheet did not include admission criteria. The Petitioner also had available a questionnaire for new clients to complete. But the questionnaire was not used for the clients the Petitioner had at that time and, besides, did not indicate how the Petitioner would score, or evaluate, the client's answers. Based on the June 27 and July 27, 1989, site visits, HRS issued to the Petitioner an interim APT license from August 1, 1989, to October 29, 1989, instead of a regular annual APT license.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Respondent, the Department of Health and Rehabilitative Services, enter a final order affirming the Department's action in issuing to the Petitioner an interim alcoholism prevention and treatment program license instead of a regular license. DONE and ENTERED this 3rd day of April, 1990, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of April, 1990.
The Issue The issue is whether revocation of the foster home care license of Petitioner was properly based upon his abuse of a child in his care.
Findings Of Fact Under Sections 409.175(3)(a) and 409.175(4)(a), Florida Statutes, the Department of Children and Family Services is the state agency responsible for licensing and monitoring foster care homes. Under Section 409.175(8), Florida Statutes, the Department has authority to deny, suspend, or revoke a foster home license. At all times material to this case, Petitioner, Steven A. Schick, was a licensed foster care parent in Pasco County, Florida. C. B., a 13-year-old male, was a foster child in Petitioner's care from late November 1999 until his removal from Petitioner's foster care home on or about January 6, 2000, by the Department of Children and Family Services. At the final hearing, and after questioning, C. B. was found competent to testify. On more than one occasion, usually late at night, Petitioner entered C. B.'s room and fondled his genitals. On at least one of these late night visits, C. B. felt what he believed to be Petitioner's mouth touching his genitals. C. B. explained that initially he was afraid to report these incidents to adults for fear that they would not believe him. He did not report these incidents to the Department because he feared a return to the Personal Enrichment through the Mental Health Services (PEMHS) program facility. C. B. is presently taking Aderol, a depression medicine, and he was taking his medication during the late night visits to his room by Petitioner. C. B. told his friend, A. B., and A. B.'s mother about Petitioner's late night visits on or about January 6, 2000. An abuse report was called into the Department, who called the police. The police arrived at Petitioner's residence approximately 11:00 p.m. on January 6, 2000, interviewed C. B., A. B., A. B.'s mother, and the Petitioner. C. B.'s testimony did not vary significantly from the testimony of Deputy Bradford Seltman, the first police officer on the scene, or from the allegations contained in the Abuse Report #2000-3014. Petitioner denied the allegations made by C. B. during C. B.'s seven-week stay in Petitioner's home as a foster child. Petitioner offered uncorroborated speculation on C. B.'s motive in making the abuse allegations, to wit: C. B. became resentful after he became aware that Petitioner was going to adopt another boy; C. B. had a fight at school resulting in an in-school suspension; C. B. and A. B. having been caught viewing an internet sex site and ordered by Petitioner to stop and go to bed; C. B. wanted to spend the night at A. B.'s house and when ordered by Petitioner to come home he became angry, and C. B., having many opportunities, did not mention those allegations to any adults prior to January 6, 2000. C. B., in his testimony, admitted the truth of the several incidents testified to by Petitioner. C. B. refuted, however, Petitioner's assertion that those incidents were the reason he told A. B. and A. B.'s mother of the sexual encounters that had occurred over the seven-week period of time he was in Petitioner's care.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Children and Family Services, enter a Final Order revoking the foster care license of Petitioner, Steven A. Schick. DONE AND ENTERED this 20th day of April, 2001, in Tallahassee, Leon County, Florida. FRED L. BUCKINE 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 20th day of April, 2001. COPIES FURNISHED: Keith J. Ganobsik, Esquire Department of Children and Family Services 11351 Ulmerton Road, Suite 100 Largo, Florida 33778-1630 Nicholas L. Ottaviano, Esquire Sharp, Ottaviano, & Barnes 24710 U.S. Highway 19 North, Suite 104 Clearwater, Florida 33763 Virginia A. Daire, 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 204B Tallahassee, Florida 32399-0700
