Findings Of Fact In December, 1984, Petitioner, a black female, began employment with the Respondent. The Petitioner was hired for two positions. In one position, the Petitioner was employed as a (40 percent FTE) Cook, working 40 percent of a full time 40 hour work week, or 16 hours weekly. In the other position, the Petitioner was employed as an "on-call" Mental Health Technician I. The Mental Health Technician employment was an OPS (other personnel services) position with no regularly scheduled working hours. Her place of employment was the geriatric residential treatment system (GRTS) center at Bristol, Florida. On July 11, 1986, the Petitioner was transferred from the OPS Mental Health Technician position to a (50 percent FTE) Mental Health Technician position. In the new position, which entailed completion of a six month probationary period, the Petitioner worked 50 percent of a full time 40 hour work week, or 20 hours weekly. Combined with the job as Cook, Petitioner was employed for 36 hours weekly. At some point prior to the end of 1986, the Petitioner wrote to Ronald Kirkland, executive director for the Respondent. The Petitioner apparently felt that she was the subject of discrimination. The Petitioner demanded that Mr. Kirkland meet with her. She was advised to proceed in accordance with the Apalachee Center's personnel grievance procedure. Assistance in filing a grievance was offered to her, but she refused and continued to demand that Mr. Kirkland personally meet with her. The demand was rejected. In January, 1987, the Petitioner was informed that her job performance in the Mental Health Technician position was not satisfactory. At a meeting, held January 20, 1987, the Petitioner was given a memorandum (dated January 12, 1987) detailing a number of issues which were the basis for her unsatisfactory evaluation. (R-1) Such issues generally included disagreements over working hours, noncooperation with coworkers and abusiveness towards the Program Supervisor. The Petitioner acknowledged the memorandum, and stated that she believed it to be "unreasonable." Due to the unsatisfactory nature of her performance, the probationary period was extended for three months. At the end of the three month extension, in April, 1987, she was again evaluated. She received an above satisfactory evaluation in all categories except attitude, which was satisfactory. By March, 1987, the Respondent had determined that problems existed with the day treatment program at the Bristol GRTS facility and began planning to fully evaluate the operation. The Petitioner was working in the day treatment program. Laura Harris, Day Treatment Coordinator for the Respondent, was assigned to perform the review by Dr. William Perry, Respondent's Director of Geriatric Services. The process began in April, 1987. The staff of the Bristol GRTS facility was notified that the review was being performed and that Ms. Harris would be visiting at specific times to observe their performance. Ms. Harris requested that each day treatment staff person prepare four activities for GRTS clients and attempted to schedule times to observe the staff's presentation of the activities. The Petitioner failed to respond to Ms. Harris' request and did not schedule activity observation sessions. Eventually, Ms. Harris attended one of the Petitioner's activities periods without providing advance notice. Other day treatment staff were responsive to Ms. Harris' requests and cooperated with her suggestions. The Petitioner was not cooperative. The review period continued through August, 1987. On May 5, 1987, the Petitioner resigned from her position as Cook, effective May 18, 1987, and advised her program supervisor that she was available for additional employment as an OPS Mental Health Technician. The Petitioner's requested additional employment would have been during the evening, night and weekend shifts. The request was based on the departure, several weeks earlier, of the person employed as the 11:00 p.m. to 7:00 a.m. Mental Health Technician. The 11:00 p.m. to 7:00 a.m. shift is less popular and more difficult to staff than other work periods. Janey Hall, a black female, is the Bristol GRTS supervisor responsible for securing staff coverage for the evening shifts. The OPS evening shift assignments were generally rotated among staff members. However, due to the difficulty in staffing the 11:00 p.m. to 7:00 a.m. shift, Ms. Hall proposed assigning the coverage to a single individual. The proposal was approved by the Bristol GRTS program supervisor and by Dr. Perry. Ms. Hall selected Penny Mize, a white female, to work the 11:00 p.m. to 7:00 a.m. shift until a permanent employee was hired for the shift. Ms. Mize began working the shift immediately upon the departure of the former employee. There were occasions when black employees filled in for Ms. Mize. As to the Petitioner's request for additional employment hours, the Respondent's supervisory staff was concerned about the Petitioner's ability to successfully respond to the demands of evening, night and weekend shifts. Those shifts provide less supervision of employees than does the day shift. Due to previously noted problems with the Petitioner's job performance, as reported to Dr. William Perry, it was determined that the Petitioner required greater supervision than was available to her on the OPS shifts. Accordingly, her request for additional OPS hours was rejected on May 13, 1987, by Dr. Perry. On May 21, 1987, the Petitioner filed a complaint with the Florida Commission on Human Relations, FCHR No. 87-3619, alleging that the denial of her request for OPS hours as a Mental Health Technician was based on racial discrimination. The Petitioner alleged that Ms. Mize, a white employee, was permitted to work the additional hours, 11:00 p.m. to 7:00 a.m. There was no evidence presented by the Petitioner which would indicate that the denial of her request for the additional hours was racially motivated or based on any factor other than her job performance and the decision to limit her employment to more closely supervised shifts. Subsequent to the Petitioner's filing of FCHR 87-3619, Laura Harris completed the review of the Bristol GRTS facility. Based upon her review she prepared an evaluation of the Petitioner's job performance and a corrective action plan which specified steps the Petitioner was directed to complete in order to continue her employment and improve her job skills, both dated August 26, 1987. (R-3, R-4). The evaluation was severely critical of the Petitioner's attitude, and her unwillingness to work towards improving her interaction with co-workers and facility clients. The evaluation recommended that her employment "be terminated immediately". The Petitioner received the documents on September 10, 1987. Her written comments on the documents indicate that she disputed Ms. Harris' evaluation, and noted that she alone was being required to comply with the corrective action plan. However, the plan was related to the lack of effort and cooperation the Petitioner demonstrated during the Harris review. Other employees, black and white, were cooperative and no other corrective action plans were necessary. During the summer of 1987, the Respondent determined that additional assistance in providing nursing services to Bristol GRTS clients was required. The Respondent initiated establishment of a part-time Licensed Practical Nurse position and decided to delete the Petitioner's Mental Health Technician position to fund the new LPN. On October 15, 1987, the Petitioner was advised by Dr. Perry that the Mental Health Technician position was being eliminated to provide for the LPN position. Dr. Perry proposed to the Petitioner that she accept a position as Cook which would provide 32 hours weekly employment. The Petitioner's period of employment as Cook had been satisfactory. The Petitioner did not agree or refuse to accept the position, but said she would consider it. On October 26, 1987, Laura Harris prepared a follow-up evaluation to the corrective action plan of August 26, 1988. Ms. Harris noted improvement in the Petitioner's performance, although there were substantial problems remaining. Apparently, unaware that the Petitioner's Mental Health Technician position was being eliminated to provide for an LPN position, Ms. Harris recommended that the Petitioner be reevaluated on November 30, 1987. On October 27, 1987, Dr. Perry contacted the Petitioner and informed her that she would be transferred to the Cook's position and that her salary as Cook would remain at the same level as her Mental Health Technician salary, causing no reduction in her rate of pay as could have occurred. The following day, Dr. Perry met with the Petitioner and reiterated the proposal. There was no response from the Petitioner. On November 12, 1987, Dr. Perry delivered a letter, dated November 2, 1987, from Mr. Kirkland, executive director of the Respondent, confirming the prior discussions between Dr. Perry and the Petitioner. The letter stated that her employment as Mental Health Technician would cease on November 12, 1987, and that she would be paid for two additional weeks in lieu of notice. Alternatively, the letter stated that she could begin employment in the Cook's position on November 13, 1987. At the time the letter was delivered, the Petitioner stated that, due to the lack of child care availability, she could not begin the Cook's job on November 13. Dr. Perry suggested she begin on November 16, but the Petitioner refused. The Petitioner's employment at the Bristol GRTS facility concluded on November 12, 1987. In December, 1987, she filed a complaint with the Florida Commission on Human Relations, FCHR 88-1288, alleging that the elimination of her position as Mental Health Technician was in retaliation for the filing of her earlier complaint. There was no evidence that the Respondent's decision to employ an LPN instead of a Mental Health Technician was in retaliation for the earlier complaint or based on any consideration other than to better provide nursing care to the elderly clients of the Bristol GRTS facility. The evidence indicates that the decision to eliminate the Petitioner's position, rather than the position of another Mental Health Technician, was based on the Petitioner's poor job performance during the Harris evaluation period and was made without regard to the earlier complaint. Although at the hearing, the Petitioner repeatedly accused the Respondent's witnesses of perjured testimony, there is no evidence to support the accusation.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Florida Commission on Human Relations enter final orders dismissing the Complaints and Petitions for Relief in FCHR Cases No. 87-3619 and 88-1288. DONE and ENTERED this 21st day of December, 1988, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of December, 1988.
The Issue The issue to be resolved in this proceeding is whether Petitioner was constructively terminated from her employment with Respondent because of her national origin.
Findings Of Fact Petitioner is a female of German and Turkish descent and has a somewhat heavy German accent. In 1995, Petitioner was employed with Bay Medical Center, a hospital in Panama City, Florida. Petitioner was employed as a unit secretary for one of the hospital units. She voluntarily resigned that position in 1997. In March of 1998, Petitioner was again employed by Bay Medical Center as a unit secretary. She was a member of a secretarial float pool and floated from one unit of the hospital to another as needed. Later, due to a hospital reorganization, the unit secretarial position was reclassified to a Clerical Support Associate (CSA) position. The CSA position included more duties than the unit secretary position and had a higher wage. As a CSA, Petitioner was responsible for providing essential clerical support as required by patient’s and clinical staff. Her duties included entering physician orders into the hospital’s computer system, scheduling tests and procedures for patients, charging and crediting patient bills, greeting patients and visitors, chart maintenance, and otherwise assisting as needed. Petitioner eventually, was assigned as a full-time CSA in the Critical Care Unit (CCU). The CCU was a very small unit with only eight open beds and was the least active unit in the hospital at that time relative to the duties of a CSA. The lower activity resulted in less work and less stress for the CSAs assigned to the CCU. Because of the light workload and low- stress environment for CSA’s, P.J. Dotson, Petitioner's supervisor in the CCU, used the CCU to train new CSAs. Because Petitioner had experience with the work, she occasionally helped train new CSAs. At some point, Ms. Dotson determined that the CSAs in the CCU were only performing two and a half to three hours of clerical work during an eight-hour period. The small amount of productivity by the CSAs was unacceptable. In order to increase the CSAs’ productivity, Respondent changed the job role of the CSAs in the CCU, including Petitioner's, and added basic patient care tasks. Some of the new tasks included feeding patients and helping patients on and off bedpans. Additionally, the CSAs' hours changed to require them to come in earlier. On December 12, 2000, Petitioner was disciplined by Ms. Dotson for complaining to a physician about Respondent's decision to change the job requirements of the CSAs in the CCU. The physician was Respondent's "customer," not Petitioner's supervisor and Ms. Dotson felt that it was inappropriate for Petitioner to discuss her employment situation with a "customer." Ms. Dotson’s position was a reasonable position by an employer. After the disciplinary action, Petitioner declined the upgraded CSA position because she did not want to change her working hours and did not want to do hands-on patient care. Rather than terminating Petitioner's employment, Respondent allowed Petitioner to transfer to the EKG department to work as an EKG technician which position also included some clerical tasks. Petitioner served as an EKG technician for two months. During those two months, Petitioner experienced numerous performance problems and was disciplined several times by Ms. Dotson. Petitioner admits she simply was not very good at direct patient care and performed poorly as an EKG technician. On February 20, 2001, Ms Dotson issued Petitioner a Notice of Corrective Action based on a number of issues that had arisen beginning around January 15, 2001. The Notice states, "During week two, we started experiencing several problems with the paper work [Petitioner] was doing. Files were not in correct order (alphabetical), Cardiology Associates were complaining about paperwork, [and] the unsigned copies of Echo reports were not getting to M.D.s for their signature.” These problems were detrimental to efficient and timely patient care in an area of health care, cardiology, where efficiency and timeliness of care are very important. Due to these concerns, Ms. Dotson changed Petitioner's orientation schedule and established specific times to achieve performance goals. However, the changed schedule did not help resolve Petitioner's performance problems. After Petitioner was fully trained to perform an EKG procedure, Petitioner "developed the inability to perform this task" within a few weeks. Petitioner also improperly double-billed a large number of Respondent's patients. The double billing was a major oversight on Petitioner's part that could have been seriously detrimental to Respondent's ability to serve Medicare and Medicaid patients if the problem had not been discovered and resolved by Ms. Dotson. On March 8, 2001, Petitioner received a final written warning because her work-related problems persisted. At that time, Ms. Dotson informed Petitioner that she needed to find a different position within Bay Medical Center, resign, or be terminated. Ms. Dotson also took this opportunity to coach Petitioner on how to sell herself to other managers, so Petitioner could acquire another position. One of the areas Ms. Dotson discussed with Petitioner was her communication skills. Ms. Dotson explained that she needed to communicate better because she has an accent, does not articulate well and often speaks with her hands in front of her mouth thereby making it difficult for others to understand her. In addition, Ms. Dotson explained to Petitioner that she demonstrated a somewhat negative attitude and failed to take responsibility for her mistakes. These traits were concerns for managers in the various departments throughout the hospital. These traits were also demonstrated at the hearing. There was no evidence that any action taken by Ms. Dotson was done for discriminatory purposes or that the reasons given for such action were pretextual. Indeed, Petitioner admitted that Ms. Dotson did not discriminate against her. However, because of these traits, Petitioner had a difficult time finding another position within Bay Medical Center, even though there was a high turnover rate among CSAs throughout the hospital. Eventually, Petitioner was accepted by Ms. Pat Owens to serve as a CSA on Three South, a medical/surgery unit at Bay Medical Center. Indeed, Petitioner’s transfer to Three South was against hospital policy since Petitioner was slated for termination from her earlier position and had received her final warning. However, in order to help Petitioner, the transfer was allowed. Although Petitioner had served as a CSA in CCU previously, the working atmosphere of Three South was very different. Three South was, as Petitioner described it, a "very, very busy floor." Three South had 39 beds and over 200 physicians on staff. However, during Ms. Owen’s time as manager of Three South, Ms. Owens did not formally discipline Petitioner regarding her job performance. Ms. Owens did not testify at the hearing. Petitioner admits that she made mistakes while Ms. Owens was her supervisor. She testified that there were "minor things" that Ms. Owens would make her redo. However, under these facts, the fact that Ms. Owens chose not to discipline Petitioner formally is not evidence of discrimination. The hospital was not satisfied with the way Three South was being managed by Ms. Owens. The unit staff were not following various hospital protocols impacting patient care. Numerous complaints were made by both patients and doctors regarding the quality of care being delivered by the unit staff. Therefore, in April, 2002, Ms. Andi Bush was hired as the manager of Three South. She was hired in order “to get Three South into shape.” Ms. Bush also became Petitioner's supervisor and demanded considerably more performance and compliance with protocols of all the employees on Three South. After Ms. Bush became manager, Petitioner claims that Ms. Bush commented on Petitioner's accent and that "[Ms. Bush's] hearing would be perfect if anybody else would talk to her. But whenever I said something to her or tried to quote her [sic] about something, all of a sudden she had this major problem." This alleged evidence is not convincing. Ms. Bush wears a hearing aid and relies on "lip-reading" because she has a significant amount of hearing loss due to nerve damage. She often has difficulty hearing others' words and asks others to repeat themselves. This difficulty was demonstrated at the hearing. In addition, Petitioner did not provide any details about the times Ms. Bush allegedly commented on her accent. There is no evidence in the record about how often or in what context any such comment allegedly happened. Given the facts that Ms. Bush is hearing impaired and reads lips and that Petitioner often speaks with her hands in front of her mouth, has an accent and does not enunciate her words, comments by Ms. Bush regarding Petitioner’s accent do not support a finding of discrimination. Ms. Bush, unlike her predecessor, enforced the hospital protocol’s and demanded that her staff comply with those protocols. It was clear that Ms. Bush's job, as the new manager of Three South, was to impose accountability and discipline on that unit. Indeed, Petitioner testified that, during Ms. Bush's initial meeting with the employees on Three South, Ms. Bush made it clear that she believed Three South was a "mess" and that "she was going to straighten it out." Petitioner failed to provide any evidence that Ms. Bush applied the rules or issued discipline inconsistently among the employees or that employees of other nationalities were treated better than her. There is no comparator evidence in the record to demonstrate that Ms. Bush's discipline of Petitioner was for discriminatory purposes. Under Ms. Bush's administration, Petitioner was disciplined on several occasions for various performance issues. On May 23, 2002, Petitioner was issued a written warning for failing to enter a physician's order. The order requested a consultation with a cardiologist to determine what treatment the patient needed. Because Petitioner did not enter the order, the consultation was delayed for over 24 hours. When the consultation was eventually performed, the cardiologist determined that the patient needed a pacemaker. Petitioner's mistake could have had dire consequences for the patient involved. Petitioner does not deny that she failed to enter the order but claims that she was told by her co-workers that she did not need to enter the order because the patient was going to be transferred to a different floor. However, Petitioner knew that other co-workers could not instruct her not to follow the hospital’s protocol for entering a physician’s order in a timely manner. The discipline she received was clearly not pretextual and was appropriate for her failure to enter the physician’s order. On June 5, 2002, Petitioner received a written warning for excessive absenteeism. Again, Petitioner does not deny that she was excessively absent. Instead, Petitioner alleges that her absences "weren't really more extensive than anybody else's." Petitioner later admits, however, that these other employees were also punished for their tardiness and absenteeism. Petitioner provided no other evidence that Respondent applied its attendance policy inconsistently among the employees. Given these facts, the evidence is insufficient to demonstrate that Petitioner’s disciplinary action was discriminatory or pretextual. On July 3, 2002, Petitioner was suspended following two different incidents. First, Petitioner placed several documents in the wrong patient's chart. Second, Petitioner failed to properly consult a physician regarding a patient care issue. Both of these incidents could have had detrimental impact on the health and safety of Respondent's patients. Petitioner offered no evidence to dispute the accuracy of the report of these incidents. On August 7, 2002, Ms. Bush held a corrective action meeting with Petitioner to discuss the following incidents: (1) Petitioner's repeated failure to enter consultations into the computer; (2) Petitioner's repeated failure to consult physicians in a timely manner; (3) a patient complaint that her call light was not being answered during Petitioner's shift; and (4) Petitioner’s failure to file a stack of documents as she was assigned to do, but instead twice sent them to medical records to file. Petitioner denies making these mistakes, but her denial is based on her lack of memory for the events. Indeed, Ms. Bush based the disciplinary action on complaints and witness statements she received form a variety of sources. Again there was no evidence that the Ms. Bush’s actions were discriminatory or pretextual. Finally, on August 14, 2002, Petitioner was given her annual performance appraisal. Petitioner was rated as "unsatisfactory" based on her record of discipline and the real potential of her performance failures to adversely impact patient care. Based on her previous performance problems and the performance appraisal, Petitioner was told that she could no longer work as a CSA at Bay Medical Center. Indeed, Ms. Dotson who was consulted regarding Ms. Bush’s decision, concurred that Petitioner should not be transferred to any CSA position or position involving patient care due to past mistakes which were potentially detrimental to a patient’s health. Respondent gave her two weeks to find a different position within the hospital, resign, or be terminated. Respondent, through its personnel department, tried to assist Petitioner to find a position within the facility. After reviewing the printout of available positions with Petitioner the only positions that were open, and for which Petitioner was qualified, were in Dietary, Housekeeping, and Laundry. Petitioner did not offer any evidence of any other positions outside those areas that were available and for which she was qualified. Petitioner refused to apply to any of these positions and, instead, resigned on August 28, 2002. The evidence did not demonstrate that her resignation was forced or caused by any discriminatory actions by Respondent. Again, Petitioner failed to provide any evidence that Respondent discriminated against her and the Petition For Relief should be dismissed.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 25th day of October, 2004, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 25th day of October, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Margie Beach-Gutierrez 5807 Butler Drive, Apartment 4 Callaway, Florida 32404 L. Taywick Duffie, Esquire Price H. Carroll, Esquire Hunton & Williams, LLP 600 Peachtree Street, Suite 4100 Atlanta, Georgia 30308 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue The issues are whether the Respondent should be disciplined under sections 464.204(1)(b) and 456.072(1)(z), Florida Statutes2/; and, if so, the appropriate discipline.
Findings Of Fact The Petitioner regulates the practice of nursing and nursing assistants in Florida. The Respondent holds license CNA 140254, which allows her to work as a certified nursing assistant (CNA). She became licensed in 2006 and worked as a CNA at Quality Health Care Center (“Quality Health Care”) in Winter Garden from 2007 through 2016. There is no evidence that the Petitioner was aware of any concerns about the Respondent’s ability to practice as a CNA with reasonable skill and safety until May 2016. In May 2016, the Respondent sent an e-mail to the Petitioner’s Medical Quality Assurance Consumer Services Unit that said: Hi this is Francoise Utegg license # 140254 CNA. I m impossible since 2005 after I bought an house with my husband at 2004 Kruger Dr Modesto CA 95355 Since in the next day we finished repair the house I m impossible they executed me and video track me I face cults culture deaths I’m living an abandoned live people talking inside me it s not in my brain you can verify my work and I never give up to work I found out a gang tracking me to force me to give up my life. I was at work yesterday someone talk in me said I will cheats you, They pushed me down verbal harassing terracing terrified terrorize everywhere I m it s feel like I don’t have any right They say that I m assaulted to take care of children. They dissolution my married and pushed me down they wasting me in nightmares Thanks for your concern. It s can be anyone’s else The Respondent’s intent in sending this e-mail was to do a public service by alerting the Petitioner to the possibility that many other people might come under similar attacks, to the detriment of their health and safety. The result was that the Petitioner immediately began an investigation into the Respondent’s ability to practice with reasonable skill and safety due to a physical or mental illness. The investigation included an interview with the Respondent and an inquiry to the Intervention Project for Nurses (IPN), which reported that the Respondent was not a program participant. In July 2016, the Petitioner ordered the Respondent to undergo a mental and physical examination to determine her ability to practice and the need for IPN. An examination by Jamie Smolen, M.D., was scheduled for February 13, 2017. In December 2016, the Respondent was at work in the dining room at Quality Health Care when she began hearing voices telling her that she was “a domestique,” i.e., in her native Haitian patois, no more than a common house maid. This insulted and angered the Respondent, who was very proud of having passed her licensure examination and worked as a licensed nursing assistant for almost ten years. The Respondent controlled her anger while working with her patients but then began to angrily and loudly dispute what the voices were saying and angrily threw dirty dishes and utensils into a wash tub, which made loud crashing sounds. The family of one of the patients heard and saw this incident and reported it to the administration of Quality Health Care. Quality Health Care investigated the family’s report and required the Respondent to be evaluated and cleared before returning to work. Dr. Smolen examined the Respondent as scheduled on February 13, 2017. He diagnosed schizophrenia, paranoid type, continuous. Schizophrenia is a mental disorder characterized by abnormal social behavior and a failure to understand what is real. Symptoms include: delusions; hallucinations; and disorganized speech. Dr. Smolen recommended that the Respondent did not have reasonable skill and safety to return to practice as a CNA; that she should receive psychiatric medication management; that she should agree to a mental health monitoring contract with IPN; that she should not be allowed to return to work until she demonstrated full compliance with the IPN contract, including medication management and psychiatric follow-up to confirm remission in response to treatment; and that she should be evaluated at that time for recovery status and return to work. Dr. Smolen’s opinion is based in part on information provided to him by the Respondent. She is a Haitian woman, aged approximately 50, who married a Canadian and accompanied him when he returned to Canada in 1996. They moved to Modesto, California, and in 2005 they undertook to renovate a home they purchased there. They worked long and hard. As the repairs were being finished, the Respondent perceived strange things happening to her. She believed something was in the house trying to harm her. She also believed she was under video surveillance and that a remote-controlled device was implanted in her abdomen. She also began to suffer from auditory hallucinations, hearing disembodied voices speaking French creole. She believed the voices may have been spirits, a “gang cult” in the air, or a “satanic legion.” She thought she had been “voodoo-ized.” She suffered physical symptoms, such as weight loss, recurrent headaches, and abdominal pain that she attributed to the implanted device. She also imagined being hit in the face by an invisible hand and an invisible tightening around her hands. The Respondent’s husband did not believe she was cursed, but instead believed she suffered from schizophrenia, and he took her to a doctor for treatment. The Respondent called the doctor a “witch psychologist” who prescribed Risperdal, an anti- psychotic medication. The Respondent thought the dosage she received caused her to “float as though she did not exist” and feel “limp like a snake.” In the Respondent’s mind, this confirmed that she was cursed, not schizophrenic. The Respondent had blood drawn for her examination by the “witch psychologist.” She later saw marks, possibly hematomas, where the blood was drawn. The Respondent interpreted the marks as signs that something evil was happening to her. After what happened to her in Modesto, the Respondent and her husband divorced, and she moved to Orlando, Florida. In Orlando, the Respondent’s abdominal pain persisted. When the Respondent sought medical advice, she was referred to mental health specialists, and the Respondent refused treatment. Not only did she not believe she had a mental illness, she seemed to believe the mental health professionals were part of the “attack” against her by the evil spirits, or whoever or whatever was tormenting her. In 2006, despite her troubles, the Respondent somehow managed to become licensed as a nursing assistant, and managed to get a job as a CNA at Quality Health Care Center. It appears that she held the job for approximately ten years. The Respondent proudly reports that she frequently was asked to work overtime. No testimony or evidence was presented from anyone other than the Respondent concerning her job performance during those ten years. It is possible that her work was uninterrupted by her torments, but not likely, given the Respondent’s self- reporting of some of the incidents during those ten years. The Respondent testified that she has called the police more than ten times over the years to report the harassing voices she hears because she thinks they could harm others, too. The usual police response has been to handcuff the Respondent and transport her to a mental health facility for observation and treatment. Typically, the Respondent refuses treatment or discontinues it after a period of compliance, and the pattern repeats itself. On February 22, 2017, the Respondent was admitted to Aspire Healthcare on an inpatient status. She stayed for five days and was discharged on Zyprexa, an anti-psychotic medication, with clearance to return to work. She returned to work at Quality Health Care shortly after that and was compliant with her medication for a time. There was no evidence of any incidents at work after that. In April 2017, the Petitioner filed an Administrative Complaint against the Respondent alleging her inability to practice as a nursing assistant with reasonable skill and safety by reason of her mental illness and her intentional refusal to comply with recommended treatment. At some point, Quality Health Care was informed about the Administrative Complaint and placed the Respondent on leave from her employment. When the Respondent received the Administrative Complaint in June 2017, she disputed the charges and asked for a hearing. All of this greatly upset the Respondent, who stopped taking her Zyprexa, as futile, and decompensated. A neighbor witnessed bizarre behavior in her home garden and reported her to the police, who handcuffed her and transported her to a mental health facility for observation and treatment. On November 3, 2017, Dr. Smolen re-evaluated the Respondent. His opinion as to the Respondent’s mental illness and ability to practice with reasonable skill and safety did not change. The Respondent denies that she has a mental illness. As a result, she does not recognize the need for treatment or medication or monitoring. Nonetheless, she has shown some willingness to do what is necessary to remove the restrictions on her license so she can return to work, and she claims to have tried to contact IPN, but without success. However, she has not followed through for long before she gets frustrated with how long it takes to get cleared to return to work. When that happens, she stops treatment and medication.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Nursing enter a final order: finding the Respondent to be in violation of section 456.071(1)(z); suspending her license until she enters into a mental health contract with IPN, and appears before the Board to demonstrate, through an evaluation by IPN, that she can practice as a nursing assistant with reasonable skill and safety to patients; imposing such additional conditions and/or probation at the time of reinstatement; and imposing costs of investigation and prosecution. DONE AND ENTERED this 6th day of February, 2018, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 6th day of February, 2018.
The Issue Whether the Department should issue certificate of need number 4502 to construct and operate a fifty-bed long-term psychiatric hospital in Leon County, Florida, to HCAC?
Findings Of Fact HCAC is a corporation formed by Anthony Estevez for the purpose of developing and operating a long-term psychiatric facility in Leon County, Florida. The facility was to be known as HCAC psychiatric Hospital of Leon County. Mr. Estevez owns 100 percent of the stock of HCAC. The Department is the state agency in Florida authorized to issue certificates of need for long-term psychiatric facilities. TMRMC is a general acute care hospital located in Tallahassee, Leon County, Florida. TMRMC operates a free- standing short-term psychiatric facility in a two-story, approximately 45,000 square foot, structure located within a block and a half from the main hospital. TMRMC's psychiatric facility is licensed for sixty beds. At present, forty-five of its beds are actually open, with fifteen beds in each of three units. One unit is available for adult patients (including geriatric patients), one is available for adolescent patients and one is available for an open adult unit. The other fifteen beds are available but are not staffed because of a lack of patients. Apalachee is a private, non-profit corporation. Apalachee provides comprehensive community mental health services to Franklin, Gadsden, Jefferson, Leon, Liberty, Madison, Taylor and Wakulla Counties. Apalachee was established consistent with State and federal guidelines to provide a variety of mental health Services. On March 17, 1986, a Letter of Intent was filed with the Department notifying the Department of Mr. Estevez's intent to apply for a certificate of need in the March 16, 1986, batching cycle. This Letter of Intent was filed within the time requirements of Florida law. On April 15, 1986 Estevez filed an application for a certificate of need for a comprehensive, free-standing, ninety-bed long-term psychiatric facility to be located in Leon County, Florida. Leon County is located in the Department's District 2. District 2 is made up of Bay, Calhoun, Franklin, Gadsden, Gulf, Jackson, Jefferson, Holmes, Leon, Liberty, Madison, Taylor, Wakulla and Washington Counties. Franklin, Gadsden, Jefferson, Leon, Liberty, Madison, Taylor and Wakulla Counties make up Subdistrict 2B. The other Counties make up Subdistrict 2A. HCAC's application was filed with the Department and the District 2 local health council. In a letter dated May 15, 1987, the Department requested additional information from HCAC. The information requested by the Department was provided by HCAC on or about June 19, 1986 and June 23, 1986. On September 23, 1986, the Department issued a State Agency Action Report partially approving HCAC's certificate of need application. HCAC was notified of the Department's decision and was issued certificate of need #4502 by letter dated September 30, 1986. HCAC had sought approval to construct a ninety-bed facility providing specialty long-term psychiatric services for the chronically mentally disturbed; patients with a ninety-day average length of stay. The facility was to provide care to adolescents, adults and geriatrics. Certificate of need #4502 authorized HCAC to construct a fifty-bed long-term adult, geriatric and adolescent psychiatric hospital in Leon County. The Department approved the facility because of its perception that there is no long-term psychiatric facility serving the geographic area proposed by HCAC to be served. By letter dated November 13, 1987, the Department issued an amended certificate of need #4502 to HCAC restricting the services to be provided to adult and geriatric long-term psychiatric services. HCAC intends on using thirty-six beds for adults and fourteen beds for geriatric patients. HCAC did not contest the Department's reduction in the size of the approved facility or the limitation of the scope of services to adult and geriatric patients. At the formal hearing HCAC presented evidence to Support the approved fifty-bed facility Serving only adults and geriatrics. HCAC has not contested the Department's decision to only partially approve HCAC's application. Supporting documentation took into account the smaller size of the approved facility. No substantial change in the scope or emphasis of the facility was made by HCAC other than the elimination of adolescent Services. HCAC has projected an average occupancy rate of 80 percent for the third year of operation. Because of the failure to prove that there is a need for an additional fifty long-term psychiatric beds for District 2, HCAC has failed to prove that this projection is reasonable. As of the date of the Department's initial decision and at the time of the formal hearing of these cases Rivendell Family Care Center (hereinafter referred to as "Rivendell") an eighty-bed long-term-psychiatric free-standing hospital located in Panama City, Bay County, Florida, had been open for approximately six weeks. Rivendell's occupancy rate at the time of the formal hearing was approximately twenty-four percent. Long-term psychiatric services mean hospital based inpatient services averaging a length of stay of ninety days. Long-term psychiatric services may be provided pursuant to the Department's rules in hospitals holding a general license or in a free-standing facility holding a specialty hospital license. Generally, the chronically mentally ill constitute an under-served group. In order to provide a complete continuum of care for the mentally ill, in-patient hospital treatment, including twenty-four hour medical care and nursing services and intensive resocialization or teaching of resocialization skills, should be provided. The Department has not established a standard method of quantifying need for long-term psychiatric beds in Florida. The Department's approval of the additional long- term psychiatric beds and facility at issue in this proceeding and the Department's and HCAC's position during the formal hearing that there is a need for HCAC's facility was based generally upon their conclusion that there is a "lack of such a facility to serve the geographic area." During the formal hearing, the Department further justified the need for the facility as follows: Basically it was felt that given the geographic distance or distances between this area, the eastern portion of District II, and the closest facilities, meaning licensed hospitals or facilities authorized by a Certificate of Need to offer long-term adult psychiatric services in a Chapter 395 licensed hospital, that there probably should be one here of a minimal size because we were not firm in, or in surety of the number of patients who might need the service in this area. But we thought that there should be at least a minimally sized long-term psychiatric hospital in this area to serve this area. HCAC and the Department failed to prove that there is a need for an additional fifty long-term psychiatric beds in District 2. At best, HCAC and the Department have relied upon speculation and assumptions to support approval of the proposed facility. In order to prove need, the characteristics of the population to be served by a proposed health service should be considered. A determination that there is a need for a health service should be based upon demographic data, including the population in the service area, referral sources and existing services. HCAC and the Department did not present such evidence sufficient enough to Support the additional fifty beds at issue in this proceeding. HCAC did not use any need methodology to quantify the gross need for long-term psychiatric beds in District 2. Nor did HCAC or the Department present sufficient proof concerning existing services, the population to be served, the income or insurance coverage of the Service area population or actual service area referral patterns. In its application. HCAC premised its proposal, in part, on the assumption that "the Leon County area is an undeserved area with residents being referred to facilities long distances away." HCAC exhibit 2. The evidence does not support this assumption. HCAC also premised its proposal upon its conclusion that it would receive patient referrals from existing institutions. The evidence failed to support this conclusion. HCAC also premised its proposal upon the fact that long-term psychiatric services have been designated as a licensure category by the Department. This does not, however, create a presumption that there is a need for such services in a particular area. Based upon the evidence presented at the formal hearing concerning one methodology for quantifying the need for long-term psychiatric beds, there may already be a surplus of long-term psychiatric beds in District 2. Such a surplus of beds may exist whether State hospital beds and ARTS and GRTS program beds are considered. The methodology is based upon national length of stay data for 1980 which was obtained from the National Institute of Mental Health. The methodology did not take into account more current data or Florida specific data. Therefore, use of the methodology did not prove the exact number of long- term psychiatric beds needed for District 2. Although the weight of the evidence concerning the use of the methodology failed to support a finding as to the exact number of long-term psychiatric beds needed in District 2, its use was sufficient to support a finding that there may be a surplus of beds already in existence. The methodology further supports the conclusion that HCAC and the Department have failed to meet their burden of proving that there is a need for the proposed facility. The weight of the evidence failed to prove whether long-term inpatient psychiatric services, other than those provided at State hospitals, are "within a maximum travel time of 2 hours under average travel conditions for at least 90 percent of the service area's [District 2] population." The closest long-term inpatient psychiatric facility [other than a State hospital], Rivendell, is located in Panama City, Bay County, Florida. This facility is located in Subdistrict 2A. There is no facility located in Subdistrict 2B. Rivendell is located on the western edge of Subdistrict 2B, however. The weight of the evidence failed to prove that this facility is not within a maximum travel time of 2 hours under average travel conditions for at least 90 percent of District 2's population. On page seven of the State Agency Action Report approving Rivendell, the Department indicated that "[t]he proposed location insures that 90 percent of the District I and District II population will have access within two hours travel time." This determination was made prior to the initial approval by the Department of HCAC's proposed facility. If the Florida State Hospital at Chattahoochee (hereinafter referred to as "Chattahoochee"), which is located in District 2, is taken into account, long-term psychiatric services are available within a maximum travel time of 2 hours under average travel conditions for a least 90 percent of District 2's population. Chattahoochee provides long-term inpatient psychiatric hospital care to indigent and private pay patients. The quality of cafe at Chattahoochee is good and a full range of therapeutic modalities typically available at other psychiatric hospitals are available. HCAC and the Department have suggested that there is need for the additional fifty beds at is sue in these cases because of their conclusion that 90 percent of the population of District 2 is not within two hours under average travel conditions of long-term psychiatric services. The failure to prove this conclusion further detracts from their position as to the need for the proposed facility. HCAC exhibit 8 is a copy of the goals, objectives and recommended actions contained in the 1985-87 Florida State Health Plan relating to mental health facilities. The evidence in this proceeding failed to support a finding that HCAC's proposed facility will enhance these goals, objectives and recommended actions. Goal 1 of the 1985-87 Florida State Health Plan is to "[e]nsure the availability of mental health and substance abuse services to all Florida residents in a least restrictive setting." Objectives 1.1, 1.2 and 1.4, and the actions recommended to achieve these objectives are not applicable to HCAC's proposed facility. Objective 1.3 provides that additional long-term inpatient psychiatric beds should not be approved in any district which has "an average annual occupancy of at least 80 percent for all existing and approved long-term inpatient psychiatric beds." Goal 2 of the 1985-87 Florida State Health Plan is to "[p]romote the development of a continuum of high quality, cost effective private sector mental health and substance abuse treatment and preventive services." The objectives and recommended actions to achieve this goal are not applicable to HCAC's proposed facility. Goal 3 of the 1985-87 Florida State Health Plan is to "[d]evelope a complete range of essential public mental health services in each HRS district." The objectives and recommended actions to achieve this goal are not applicable to HCAC's proposed facility. The Florida State Plan for Alcohol, Drug Abuse and Mental Health Services does not specifically deal with private long-term psychiatric services. Instead, it relates specifically to treatment in the state mental health treatment facilities. The applicable district mental health plan does not specifically address long-term psychiatric services. The plan does, however, recommend that new facilities should indicate a commitment to serving the medically indigent. HCAC has agreed to provide 5.6 percent of its patient days for indigent care. HCAC's commitment to provide 5.6 percent of its patient days for indigent care is consistent with this objective. Mental Health District Boards have been abolished. The District 2 Alcohol, Drug Abuse and Mental Health Planning Council, however, has published the Alcohol, Drug Abuse, and Mental Health 1986-89 Provisional District Plan. It is acknowledged in this Plan that deinstitutionalization and the provision of the least restrictive means of treatment should be promoted. The use of long- term psychiatric inpatient beds does not promote this philosophy. If a patient is not admitted as part of the 5.6 percent indigent commitment of HCAC and cannot pay the $10,500.00 per month admission charges, HCAC will not admit the patient. Additionally, if a patient is admitted and runs out of funds to pay the daily charges and is not part of the 5.6 percent indigent commitment, the patient will be transferred to another facility. HCAC's facility will be accessible to all residents who can pay for their services or who are part of the 5.6 percent indigent commitment of HCAC. The provision of 5.6 percent indigent care is adequate. HCAC will provide non- discriminatory health care services, to those indigent patients who are covered by HCAC's 5.6 percent commitment. The Counties which make up Subdistrict 2B, other than Leon County, are below the average national and State poverty levels. In most of the Counties, twenty percent of the population have incomes below the poverty level. HCAC has not managed any type of psychiatric hospital and currently has no employees. The proposed facility is to be managed by Flowers Management Corporation (hereinafter referred to as "Flowers"). Flowers is a psychiatric management company that has been in operation since 1984. Mr. Estevez owns fifty-one percent of the stock of Flowers and is the Chairman of the Board. Flowers is operating five Psychiatric/substance abuse facilities: three hospital based and two free-standing pychiatric/chemical dependency facilities. The staff and faculty of Flowers has a strong background in the management of psychiatric facilities. Flowers has no experience in the management of a long-term psychiatric facility. Mr. Nelson Elliot Rodney, Flowers' Regional Vice President, will be ultimately responsible for the management of the proposed facility. The administrator of the facility will report to Mr. Rodney. Mr. Rodney will seek to implement the goals outlined in HCAC's certificate of need application for the proposed facility. Mr. Rodney has not designed a psychiatric hospital. Nor has Mr. Rodney worked at or administered a long- term psychiatric hospital. The overall treatment plan as presented in HCAC's certificate of need application and as presented at the formal hearing lends itself to the development of a good program for long-term psychiatric care. HCAC has associated itself with experts in long-term psychiatric care in order to develop a detailed plan specifically addressing the treatment needs of long-term psychiatric patients. HCAC has the ability to, and will, provide good quality patient care. Apalachee provides certain programs in Subdistrict 2B which provide alternatives to long-term psychiatric hospitalization: the Geriatric Residential Treatment System (hereinafter referred to as "GRTS") and the Adult Residential Treatment System (hereinafter referred to as "ARTS"). Apalachee's GRTS program, which serves Individuals fifty-five years of age and older, contains a residential component with a total capacity of Seventy geriatric beds. A wide variety of services are provided as part of the GRTS program, including day treatment and case management components. When Apalachee's ARTS program is fully implemented there will be a total of one hundred sixty-three beds available for the care on long-term mentally ill adults and geriatrics within Subdistrict 2B. The ARTS program serves adults who are eighteen to fifty-four years of age. Apalachee's GRTS and ARTS programs do not provide the identical services provided in a free-standing long-term psychiatric hospital. The programs do provide some identical or similar services, and, to that extent, the programs complement the continuum of psychiatric care available. To the extent that they provide the same type of services, Apalachee's GRTS and ARTS programs serve as alternatives to HCAC's proposed facility. There is a national shortage of registered nurses. This shortage is particularly acute with regard to psychiatric nurses. TMRMC has a current shortage of three registered psychiatric nurses, three part-time psychiatric registered nurses, seven flex positions for psychiatric nurses, one full- time nurse technician position and one mental health worker. TMRMC has had difficulty, despite adequate efforts to recruit, recruiting for its psychiatric facility since it opened. It has never been fully staffed with psychiatric nurses. There is also a shortage of occupational therapists. TMRMC has had an occupational therapist vacancy for seven months. Mr. Rodney will be responsible for the recruitment of the necessary personnel for the proposed facility. Mr. Rodney indicated that he would utilize recruitment methods similar to those used by TMRMC. Mr. Rodney will also use his experience and contacts in the Dade County, Florida area. HCAC's salary package is reasonable and HCAC will provide adequate in- service training programs. Although HCAC will have difficulty in attracting qualified staff, just as TMRMC has had, it will be able to obtain adequate staff for the proposed facility. HCAC may do so, however, at the expense of existing health care providers. Apalachee provides the following programs in District 2: Wateroak--A sixteen-bed long-term psychiatric hospital for the treatment of children and adolescents. It is a licensed Specialty hospital; In November of 1987, Apalachee began construction of an acute care facility, which will provide inpatient short- term psychiatric services; Case Management Services--Case management services, which include supportive counseling, medication therapy, assistance with transportation and home visitation, are provided to the chronically mentally ill on an outpatient basis. The Services are to be provided where the patients reside; Hilltop--A sixteen-bed residential treatment center. Hilltop is a group home living facility for adults eighteen to fifty-four years of age; Chemical Dependency Program--Individual, group and family counseling and educational services on an outpatient basis for Individuals with suspected substance abuse problems; Emergency Services--Year-round, twenty-four hour a day telephone or face-to-face evaluations to persons with an acute disturbance or who are in need of evaluation for determination of the proper level of care; PATH--Positive Alternative to Hospitalization Program, a crises stabilization unit developed as an alternative to short-term psychiatric care; PPC--Primary Care Center, a nonhospital medical detoxification unit providing short-term detoxification care to alcohol abusers; Gerontological Programs--Made up of the GRTS program and an outpatient component. Through the outpatient component, Apalachee uses its outpatient clinics in each County in its service area to provide linkage for therapy and medication and supportive counseling to geriatrics; ARTS Program; and Designated Public Receiving Facility--Apalachee is the designated public receiving facility for Subdistrict 2B. It screens and evaluates every person admitted to Chattahoochee. Apalachee's adult mental health programs which are available to indigent patients, directly impact both long and short-term hospital utilization, lowering such utilization. For example, before establishing the services provided to suspected substance abusers, many patients were placed in long-term psychiatric hospitals. Referrals to TMRMC of patients under the Baker Act have been reduced from an average of fifteen to eighteen patients per day to an average of one-half to one person per day. There has also been a decrease in admissions to Chattahoochee since Apalachee established the GRTS and ARTS programs. At the time of the formal hearing of these cases TMRMC had a census of only twenty-eight adult patients in its short-term psychiatric facility. TMRMC's census has been low for the past two years. TMRMC's short-term psychiatric facility is operating at a loss. Any further loss of patients would have a serious impact on the facility. From October 1, 1986 to July 31, 1987, TMRMC lost $127,337.00 on its short-term psychiatric facility. For the twelve-month period from October 1, 1986 to October 1, 1987, it is reasonably estimated that TMRMC will lose $139,722.00. TMRMC would like to open the fifteen-bed unit (which is presently closed) of its short-term psychiatric facility. It must increase its census before it can do so. It has been attempting to increase its census by sending out mail-outs and newsletters, sponsoring educational programs advertising, inviting health care professionals to the facility and initiating clinical affiliations with university programs. Rivendell is an eighty-bed long-term psychiatric facility. Forty of its eighty beds are licensed for adults and geriatric patients. The other forty beds are licensed for children and adolescent patients. Rivendell's census at the time of the formal hearing of these cases was six to eight patients. Chattahoochee has a total of 823 long-term psychiatric beds for adults and geriatrics. There are no like and existing long-term psychiatric beds for adults and geriatrics located in Subdistrict 2B. The only like and existing long-term psychiatric beds for adults and geriatrics available to residents of District 2 are located in Subdistrict 2A at Rivendell. The proposed HCAC facility will result in increased competition in District 2. This increase in competition will have an adverse impact on suppliers of inpatient psychiatric services. Admissions to the proposed facility will likely include patients who would be more appropriately hospitalized in a short-term facility. Although HCAC has no plans to admit short-term patients and will attempt to prevent such admissions, mental health professionals cannot accurately predict the length of a patient's stay upon admission. The determination will often require an in- hospital evaluation of the patient. Therefore, patients more appropriately treated in a short-term facility such as TMRMC will end up spending some tide in HCAC's proposed facility. TMRMC will lose patient days if the HCAC facility is constructed. This will adversely affects TMRMC's occupancy rate, which is already low, and cause further losses in revenue. Given the surplus of long-term psychiatric beds in District 2 and the low occupancy of short-term beds in Subdistrict 2B, it will difficult for HCAC to continue in existence without admitting short-term psychiatric patients. The operation of the proposed HCAC facility will also adversely affect the availability of nurses to staff Apalachee's acute care facility and other Apalachee operations and TMRMC's ability to staff its short-term psychiatric facility. Even the loss of one more full-time registered nurse at TMRMC could cause critical staffing problems. Because of the lack of need for fifty additional long-term psychiatric beds in District 2, HCAC's proposed facility would also have an adverse affect on Rivendell. The proposed facility will provide internships, field placements and semester rotations for psychiatrists, psychologists, social workers, nurses and counselors. The facility will work closely with community agencies and community personnel in developing, operating and providing resources for training for community groups, patient groups and personnel. In- service training will be open to selected professionals in the community. HCAC's proposed facility will have a positive effect on the clinical needs of health professional training programs and schools for health professions in District 2. The-total estimated cost of the proposed project approved by the Department is $4,108,000.00. HCAC plans on financing 100 percent of the cost of the project with a mortgage loan at 13 percent interest. Mr. Estevez has had experience in obtaining financing for health care and other commercial projects. In 1987 alone, Mr. Estevez was personally involved in over $20,000,000.00 of financing. Short-term financial feasibility means the ability to successfully fund a project to ensure that the project will succeed in the short-term. To achieve short-term financial feasibility, there must be sufficient funds to cover any losses incurred during the initial operating period and to cover any short fall in working capital necessary to fund the project. NCNB, a financial institution with which Mr. Estevez has had, and continues to have, a long and profitable association, has indicated interest in financing the proposed project. A financing letter to this effect has been provided. Although the letter does not specifically refer to the proposed project, the weight of the evidence supports a finding that NCNB would be willing to finance the project. In light of Mr. Estevez's experience in obtaining commercial financing and his relationship with NCNB, it is reasonable to conclude that 100 percent financing of the project can be obtained at 13 percent interest. The proposed project will have a negative cash balance at the end of its first and second year of operation. Given Mr. Estevez's commitment to the project, sufficient funds for capital and operating expenses will be available to cover these negative cash balances. Although Mr. Estevez did not provide a separate audited financial statement, the weight of the evidence proved that Mr. Estevez has the ability to provide the necessary capital. In the short-term, HCAC's proposal is financially feasible. HCAC has projected that it will operate at an average length of stay of ninety days. It will charge an all-inclusive $350.00 per day for its long- term psychiatric services, including all ancillary services. Initially, HCAC projected the following payor mix: Medicaid of 30 percent; Medicare of 20 percent; and insurance and private pay of 50 percent. HCAC was informed by the Department that Medicaid reimbursement was not available for psychiatric services in private free-standing psychiatric hospitals. Consequently, HCAC modified its payor mix by eliminating Medicaid from its payor mix. At the formal hearing of this case, HCAC projected the following payor mix: Medicare of 3.3 percent; indigent of 5.6 percent; and insurance and private pay of 91.1 percent. Medicare reimburses for psychiatric care in a limited fashion. That is why HCAC reduced its projected Medicare reimbursement to 3.3 percent of its total revenue. Medicare patients generally use the majority of their lifetime reserve Medicare reimbursable days for other types of care, including short-term psychiatric care and acute care. Persons in need of long-term psychiatric care generally have a poor work history because of their illness interferes with their ability to obtain and maintain employment. Patients have few economic resources of their own. A patients family structure is often disorganized as a result of the patient's episodes of illness. These episodes strain the family relationship. Persons in need of long-term psychiatric care are often unable to pay for needed services and their family members are either unable or unwilling to support the person. There is no facility in Florida with a payor mix of 91 percent insurance and private pay. HCAC's projection of 91.1 percent insurance and private pay is not a reasonable projection. This finding of fact is based upon the high poverty levels within Subdistrict 2B, the lack of need for additional long-term psychiatric beds and the failure to prove that insurance benefits for long-term care are available in District 2. The State of Florida, Employees Group Health Self-Insurance Plan does not provide coverage for specialty hospitals, such as HCAC's proposed facility. The State of Florida provides 42 percent of the employment in Leon County. Insurance provided by other employers in the area limits coverage for inpatient psychiatric care to thirty to thirty-one days. These benefits are often exhausted before long- term care becomes necessary. In order to achieve a 91.1 percent insurance and private pay payor mix, 80 percent to 100 percent will have to be private pay patients. Such a high percentage of private pay patients is not reasonable. The effective buying income in Leon County in 1986 was approximately $22,600.00. In District 2 it was $18,700.00. Madison County and Jefferson County are among the counties heading Florida's poverty rate. Taylor County is the ninth poorest county in the State. HCAC has projected a 95 percent occupancy rate for its proposed facility within six months of its opening. HCAC has failed to prove that this occupancy rate can be achieved. In light of the high poverty rate in the area, the lack of need for long-term psychiatric services and the inability of patients to pay for such services, this projected occupancy rate is not reasonable. In light of HCAC's failure to prove that there is a need for the proposed facility or that its payor mix is reasonable, HCAC has failed to demonstrate that its occupancy projection is achievable. HCAC has projected that 7.3 percent of its gross revenue will be deducted as revenue deductions. Included in this amount are contractual allowances, charity care and bad debts. Medicare reimburses hospitals for total costs rather than revenue or charges. HCAC, therefore, gas projected approximately $6,000.00 for the first year and $24,000.00 for second year as contractual allowances. HCAC's projection of deductions from revenue are not reasonable. Bad debt of 1.6 percent is unreasonable compared to the experience at other long- term psychiatric facilities in Florida. The $350.00 all-inclusive charge is not reasonable. This charge will not be sufficient to cover the proposed facility's costs. HCAC's projected costs for "Supplies and other" and for taxes are reasonable. HCAC has failed to prove that its proposed facility is financially feasible in the long-term. The projected and approved cost of construction is $3,965,456.00. HCAC has indicated that the facility will consist of two, one-story buildings connected by a hallway. The facility will have approximately 40,563 gross square footage. The actual site for the project has not been selected or purchased. The floor plan calls for twenty-five, semi-private rooms for patients. The patient-care building will contain four independent and secure living/program areas connecting to a central core which will contain an atrium open to the outdoors. There will be approximately 811 gross square feet per bed, which is adequate. The proposed design is reasonable. The projected completion forecast of HCAC is reasonable. The projected costs of completing the building are reasonable. The building will be built by Project Advisers Corporation (hereinafter referred to as "PAC"). PAC is a health care, commercial and residential construction company. Mr. Estevez owns 100 percent of PAC. Since 1978, PAC has been involved in the construction of St. John's Rehab Center and Nursing Home, South Dade Nursing Home, Hialeah Convalescent Center, South Dade Rehab Hospital and two psychiatric/chemical dependency hospitals for Glenbeigh Hospital. Generally, there are no differences in the construction requirements between short-term and long-term psychiatric facilities.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED the Department enter a Final Order denying the application of HCAC for a certificate of need to construct and operated a fifty-bed long-term psychiatric facility in Leon County, Florida. DONE and ENTERED this 3rd day of May, 1988, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of May, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4373 and 864374 The parties have submitted proposed findings of fact it has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommend Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. HCAC's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 5-6. The third through fourth sentence are hereby accepted. 1 and 6. 3 1 and 39. 4 6 and 9 5 7. 6 8-10, 34 and 97. 7 11. 8 11, 14 and 76. The last Sentence is not supported by the weight of the evidence 6. The last sentence is not supported by the weight of the evidence. 10 10 and 69. 11 Hereby accepted. 12 39-40. 13 These proposed findings of fact are cumulative, subordinate and unnecessary. They deal with the weight to be given to other evidence. 14 42. 15-19 Although these proposed findings of fact- are generally true, they are cumulative, subordinate and unnecessary. The first sentence is not supported by the weight of the-evidence. The rest of the proposed findings of fact are hereby accepted. Although the proposed finding of fact contained in the first sentence is generally true, it is cumulative, subordinate and unnecessary. The rest of the proposed findings of fact deal with the weight to be given to other evidence. These proposed findings of fact are not supported by the weight of the evidence. 23-26 Although these proposed findings of fact are generally true, they are cumulative, subordinate and unnecessary. 27 Although this proposed finding of fact is generally true, the weight of the evidence failed to prove that HCAC will be able to achieve its plans. 28-33 Although these proposed findings of fact are generally true, they are cumulative, subordinate and unnecessary. 34 43. 35 51. The last sentence is not supported by the weight of the evidence. 36 52. 37 53. 38 69-70. 39 72. 40 73. 41 74. 42 67. 43 68. 44 34 and 37. 45 104. 46. The first sentence is law. The last sentence is accepted in 105. 47 97 and 99-100. 48 101. 49 103. 50 102. 51 Hereby accepted. 52-53 These proposed findings of fact deal with the weight to be given other evidence. 54 78. 55 79-80. 56 79. 57-58 Not supported by the weight of the evidence. 76. The last sentence is not supported by the weight of the evidence. Not supported by the weight of the evidence. Although generally correct, these proposed findings of fact do not support HCAC's projected utilization. Irrelevant. Not supported by the weight of the evidence. Irrelevant. 65 92. 66 93. 67 94. The last two sentences are not supported by the weight of the evidence. 68 95. Not supported by the weight of the evidence. HCAC's proposed facility and TMRMC are not comparable. 71-75 Not supported by the weight of the evidence. 54 and 59. The last sentence is not supported by the weight of the evidence. The first two sentences are hereby accepted. The last sentence is not supported by the weight of the evidence. Irrelevant. 79-83 Not supported by the weight of the evidence. 84-85 Statement of law. Hereby accepted. 6 and 25. The last sentence is not supported by the weight of the evidence. 88-90 Although these proposed findings of fact are generally true, they are cumulative, subordinate and unnecessary. 91-92 Not supported by the weight of the evidence. 93 Although these proposed findings of fact are generally true, they are cumulative, subordinate and unnecessary. The last two sentences are conclusions of law. 94-95 Not supported by the weight of the evidence. Irrelevant. The first sentence is a conclusion of law. The second sentence is hereby accepted. The last sentence is irrelevant. 13. The last two sentences are conclusions of law. Irrelevant. 100-102 Hereby accepted. Not supported by the weight of the evidence. Hereby accepted. 44. The last sentence is irrelevant. 47. The last sentence is not supported by the weight of the evidence. 16. The last sentence is not supported by the weight of the evidence. 108 15. Not supported by the weight of the evidence. Irrelevant. See 23. The last sentence is not supported by the weight of the evidence. Conclusions of law. Not supported by the weight of the evidence. 114 34. 115 29. The last sentence is not supported by the weight of the evidence. 115a 30. The last sentence is not supported by the weight of the evidence. 115b-e 30. The next to the last sentence of e is not supported by the weight of the evidence. 115f Not supported by the weight of the evidence. 116-117 Not supported by the weight of the evidence. 118 Hereby accepted. 119-120 35. 121 Irrelevant. 122 33. 123-124 Irrelevant. 125-129 Not supported by the weight of the evidence. 130 3. 131 Hereby accepted. 132 64. The last sentence is not supported by the weight of the evidence. 133 See 49 and 65. 134 54. The last two sentences are not supported by the weight of the evidence. The Department's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 Hereby accepted. 2-3 8-9. 4 Not supported by the weight of the evidence. 5 13 and 25. Not supported by the weight of the evidence. Conclusion of law. 8 31. 9 Not supported by the weight of the evidence. 10-12 Irrelevant. 13 Not supported by the weight of the evidence. 14-16 Conclusions of law. TMRMC's Proposed Findings of Fact 1 1, 6 and 9-11. 2 See 6 and 9. 3 6-10. 4 76. 5 77-78. 6 79. 7 79-80. 8 Hereby accepted. 9 81. 10 82-83. 11 34 and 36. 12 36. 13 6. 14-15 39. 16 41-42. 17 2. 18 3. 19 4 and 6. 20-21 54. 22 Not Supported by the weight of the evidence. 23 54. 24 46 and 54. 25-26 54-55. 27-29 54. 30 54-55. 31 44-45, 47 and 54. 32 Hereby accepted. 33 54-55. 34 55. 35 Irrelevant. 36 56. 37 58. 38 49. 39 48. 40 50. 41-44 Although these proposed findings of fact are generally true, they are cumulative, subordinate and unnecessary. 45-46 65. 47-48 57. 49 58. 50 63-64. 51 Not supported by the weight of the evidence. 52 63-64. 53 63-64. 55 Hereby accepted. Not supported by the weight of the evidence. 56 65. 57 Not supported by the weight of the evidence. 58 25 and 59. 59 Not supported by the weight of the evidence. 60-62 Although these proposed findings of fact are generally true, they are cumulative, subordinate and unnecessary. 63 25 and 59. 64-68 Although these proposed findings of fact are generally true, they are cumulative, subordinate and unnecessary. 69 Not supported by the weight of the evidence. 70-71 27. Although these proposed findings of fact are generally true, they are cumulative, subordinate and unnecessary. Not supported by the weight of the evidence. 74 18 and 96. Irrelevant. Although these proposed findings of fact are generally true, they are cumulative, subordinate and unnecessary. 77-81 Although generally true, these proposed findings of fact are not relevant to this de novo proceeding. 82 Hereby accepted. 83 84. 84 Hereby accepted. 85-86 Irrelevant. 87 See 69 and 72. 88 94. 89 Hereby accepted. 90 74. 91 94. The last three sentences are not supported by the weight of the evidence. 92-93 Not supported by the weight of the evidence. 94-96 Although these proposed findings of fact are generally true, they are cumulative, subordinate and unnecessary. 97 19. 98-99 18. Hereby accepted. Irrelevant. Hereby accepted. 103 19. 104 Although these proposed findings of fact are generally true, they are cumulative, subordinate and unnecessary. 105 20. 106 21. 107 Hereby accepted. 108-110 See 23. 111 Not supported by the weight of the evidence. 112 85. 113 86. 114 88. 115 89. 116-118 Although these proposed findings of fact are generally true, they are cumulative, subordinate and unnecessary. 119 91. 120 90. 121 96. 122-126 Not supported by the weight of the evidence. 127 Hereby accepted. 128-129 Irrelevant. 130 22. 131 97-98. 132 99. 133-139 Not Supported by the weight of the evidence. 140 95. 141 Not supported by the weight of the evidence. 142 97. 143-146 Not supported by the weight of the evidence. Apalachee's Proposed Findings of Fact 1 6 and 8-9 2 4. 3(a)-(i)(1) 54. 3(i)(2) 44-45. 3(j) 44 and 54. 3(k) 54. 4 3. 5 1. 6 104. 7 39 and 41. 8 27 and 60. 9 25 and 59. 10(a) Not supported by the weight of the evidence. 10(b) 27. 10(c) 26. 10(d) Not supported by the weight of the evidence. 11 13. 12(a) 81. 12(b) 82-83. 13 6 76 and 87. The second, third, fifth- eighth sentences, the Second Paragraph and the last Paragraph are not Supported by the weight of the evidence. 71 and 74. Other than the first two Sentences of the first Paragraph and the first two sentences of the third Paragraph, these Proposed findings of fact are not Supported by the weight of the evidence. 16(a) 90. The Second Paragraph is not Supported by the weight of the evidence. 16(b) 88. 16(c) 94. 16(d) 76 and 95. Other than the first three sentences of the first Paragraph and the last Paragraph, these Proposed findings of fact are not Supported by the weight of the evidence. 17 48-49 and 65. The Sixth and eighth Sentences and the last Paragraph are not Supported by the weight of the evidence. 44-47 and 54. The last Sentence of the first Paragraph and the last four Sentences of the last Paragraph are irrelevant. 19 62. 19(a) 3, 23, 56-57 and 64. The Second and third Paragraph are Cumulative and unnecessary. 19(b) 63. The Second Paragraph is Cumulative and unnecessary. 19(c) Cumulative and unnecessary, 19(d) 25, 59, 62 and 66. 19(e) 65. 20 Not Supported by the Weight of the evidence or Cumulative and unnecessary, 21 39 and 41. The last Paragraph is not Supported by the weight of the evidence. COPIES FURNISHED: Jean Laramore, Esquire Anthony Cleveland, Esquire Post Office Box 11068 Tallahassee, Florida 32302 Ronald W. Brooks, Esquire 863 East Park Avenue Tallahassee, Florida 32301 Theodore E. Mack, Esquire John Rodriguez, Esquire Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700 Darrell White, Esquire Gerald B. Sternstein, Esquire Post Office Box 2174 Tallahassee, Florida 32301 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 =================================================================
