Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: In November of 1983, HMA filed its application for a Certificate of Need to construct and operate a 60-bed adolescent treatment center in Orlando, Florida. An omissions response was filed by HMA in January of 1984. Thereafter, HRS issued its initial intent to grant the application and PIO requested an administrative hearing. HMA is a privately held corporation which owns or manages twelve or thirteen acute care hospitals in the States of Kentucky, West Virginia, Pennsylvania, Missouri, Texas and Florida, several of which are psychiatric hospitals. The proposed long-term psychiatric treatment facility for adolescents is patterned after a 55-bed program currently operated by HMA in Arlington, Texas. The proposed facility will be a freestanding campus-like setting located on ten to fifteen acres of land in the southern portion of Orlando. The precise site has not yet been selected. The single-story facility will have a total size of approximately 45,000 to 50,000 square feet and will be divided into two separate units which connect into a core area containing various support services, such as offices, a gymnasium, a swimming pool, a media center, and an occupational therapy area. While the location finally selected for the facility will have a bearing on the site costs of the project, the estimated construction costs of approximately 3.1 billion do contain a contingency factor and are reasonable at this stage of the project. Each unit will be served by two interdisciplinary treatment teams headed by a physician or a psychiatrist. Key personnel for the facility, such as department heads and program directors, will most likely be recruited from outside the Orlando area in order to obtain persons with experience in long-term care for adolescents. The treatment program is designed to serve adolescents between the ages of 10 and 19, though the bulk of patients will be middle school and high school individuals between the ages of 13 and 17. While the primary service area will be adolescents in District 7, the remainder of the central Florida region is identified as a secondary service area. A full educational program at the facility is proposed. The concept of the hospital will be to treat the whole person, not just his psychiatric problems, and the treatment program will include and involve family members and other factors which may have a bearing on the adolescent's ability to fit into society. The form of treatment is based upon a "levels" approach -- a form of behavior modification wherein privileges are granted for appropriate behavior and the patient is allowed to move up to the next succeeding level of privileges. It is contemplated that the average length of stay for a patient will be approximately six months -- the average time anticipated for a patient to move from the admission level to the level of discharge. HMA intends to seek accreditation of its proposed facility from the Joint Commission on Accreditation of Hospitals. The total estimated project cost for the proposed facility is $6,307,310.00. Financing is to be obtained either through a local bond issue or by a private lending institution. Based upon an evaluation of HMA's audit reports for the past three years, an expert in bond financing of health care facilities was of the opinion that HMA would be eligible either for a private placement or a bond issue to finance the proposed project. HMA intends to charge patients $325.00 per day, and projects an occupancy rate of 80 percent at the end of its second year of operation. This projection is based upon a lack of similar long-term psychiatric facilities for adolescents in the area, the anticipated, experience at the Arlington, Texas adolescent facility and the anticipated serving of clients from CYF (Children Youth and Families -- a state program which; serves adolescents with psychiatric and mental problems). Although no established indigent care policy is now in existence, HMA estimates that its indigency caseload will be between 3 and 5 percent. It is anticipated that the proposed facility will become a contract provider for CYF for the care and treatment of their clients and that this will comprise 20 percent of HMA's patient population. HRS's Rule 10-5.11(26), Florida Administrative Code, relating to long- term psychiatric beds, does not specify a numerical methodology for quantifying bed need. However, the Graduate Medical Education National Advisory Committee (GMFNAC) methodology for determining the need for these beds is generally accepted among health care planners. The GMENAC study was initially performed in order to assess the need for psychiatrists in the year 1990. It is a "needs- based" methodology, as opposed to a "demand-based" methodology, and attempts to predict the number of patients who will theoretically need a particular service, as opposed to the number who will actually utilize or demand such a service. Particularly with child and adolescent individuals who may need psychiatric hospitalization, there are many reasons why they will not seek or obtain such care. Barriers which prevent individuals from seeking psychiatric care include social stigma, the cost of care, concerns about the effectiveness of care, the availability of services and facilities and other problems within the family. Thus, some form of "demand adjustment" is necessary to compensate for the GMENAC formula's overstatement of the need for beds. The GMENAC formula calculates gross bed need by utilizing the following factors: a specific geographic area's population base for a given age group, a prevalency rate in certain diagnostic categories, an appropriate length of stay and an appropriate occupancy factor. In reaching their conclusions regarding the number of long-term adolescent psychiatric beds needed in District 7, the experts presented by HMA and PIO each utilized the GMENAC formula and each utilized the same prevalency rate for that component of the formula. Each appropriately used a five-year planning horizon. However, each expert reached a different result due to a different opinion as to the appropriate age group to be considered, the appropriate length of stay, the appropriate occupancy factor and the factoring in of a "demand adjustment." In calculating the long-term adolescent psychiatric bed need for District 7 in the year 1989, HMA's expert used a population base of ages 0 to 17, lengths of stay of 150 and 180 days, an occupancy level of 80 percent and an admissions factor of 96 percent. Utilizing those figures, the calculation demonstrates a 1989 need for 158 beds if the average length of stay is 150 days, and 189 beds if the average length of stay is 180 days. If the population base is limited to the 10 to 19 age bracket, the need for long-term psychiatric beds is reduced to between 70 and 90, depending upon the length of stay. From these calculations, HMA's expert concludes that there is a significant unmet need for long-term adolescent psychiatric beds in District 7. This expert recognizes that the numbers derived from the GMENAC formula simply depict a statistical representation or indication of need. In order to derive a more exact number of beds which will actually be utilized in an area, one would wish to consider historical utilization in the area and/or perform community surveys and examine other site-specific needs assessment data. Believing that no similar services or facilities exist in the area, HMA's need expert concluded that there is a need for a 60-bed facility in District 7. In applying the GMENAC methodology, PIO's need expert felt it appropriate to utilize a base population of ages 10 through 17, an average length of stay of 90 days and an occupancy rate of 90 percent. Her calculations resulted in a bed need of 37 for the year 1990. Utilizing a length of stay of 120, 150 and 180 days and a 90 percent occupancy rate, a need of 50, 62 and 75 beds is derived. If an occupancy rate of 80 percent is utilized, as well as a population of ages 10 - 17, the need for beds is 42, 56, 70 and 84, respectively, for a 90, 120, 150 and 180 day average length of stay. The need expert for PIO would adjust each of these bed need numbers by 50 percent in order to account for the barriers which affect the actual demand for such beds. Since the HMA proposed facility intends to provide service only to those patients between the ages of 10 and 19, use of the 0 - 17 population would inflate the need for long-term adolescent psychiatric beds. Likewise, PIO's non-inclusion of 18 and 19 year olds understates the need. PIO's use of a 90-day average length of stay would tend to understate the actual need in light of HMA's proposed treatment program which is intended to last approximately six months. While some demand adjustment is required to properly reflect the barriers which exist to the seeking of long-term adolescent psychiatric care, the rationale of reducing by one-half the number derived from the GMENAC methodology was not sufficiently supported or justified. Even if HMA's calculations were reduced by one-half, a figure of between 79 and 94 beds would be derived. The existence of other long-term adolescent psychiatric beds in District 7 was the subject of conflicting evidence. West Lake Hospital in Longwood, Seminole County, holds a Certificate of Need and a license as a special Psychiatric hospital with 80 long-term beds. However, the Certificate of Need was issued prior to the adoption of Rules 10-5.11(25) and (26), Florida Administrative Code, when anything in excess of 28-days was considered long- term. The West Lake application for a Certificate of Need referred to a four- to-six week length of stay -- or a 28 to 42 day period --for adults, and a ten week, or 70 day length of stay for children and adolescents. In preparing inventories for planning purposes, HRS considers the 40 child and adolescent psychiatric beds at West Lake Hospital to be acute or short-term beds. The West Lake facility is not included in HRS's official inventory of licensed and approved long-term care beds as of October 1, 1984. In fact, the only long-term care beds listed for District 7, in addition to HMA's proposed psychiatric facility, are beds devoted to the treatment of substance abuse. PI0 is the holder of a Certificate of Need to construct and operate a 60-bed short-term adolescent psychiatric hospital in Southwest Orange County, and is currently planning the actual development and construction of the facility. If PIO is not able to reach the census projections contained in its Certificate of Need application, its ability to generate earnings could be adversely impacted. Even a five percent decrease in PIO's census projections would require PIO to either raise its rates or make reductions in direct costs. This could include a decrease in staffing, thus affecting a reduction in the available programs, problems in attracting quality staff and ultimately a reduction in the quality of care offered at the PIO facility. In a batch subsequent to the HMA application, PIO requested the addition of 15 long-term adolescent psychiatric beds and 15 substance abuse beds. When an adolescent psychiatric patient is evaluated for placement in a hospital setting, it is generally not possible to determine how long that patient will require hospitalization. The adolescent psychiatric patient is often very guarded, distrusting both parents and other adults, and it is difficult to obtain full and necessary information from both the patient and the parents. Several weeks of both observation and the gathering of data, such as school records, are necessary in order to access the adolescent patient's degree of disturbance. With respect to treatment programs, there is no sharp medical demarcation between a 60-day period and a 90 day period. Patients in short-term facilities often stay longer than 60 days and patients in long term facilities often stay less than 90 days. The length of stay is very often determined by the parents, in spite of the treatment period prescribed by the physician. The treatment programs in both short-term and long-term psychiatric facilities are very similar, and short- and long-term patients are often treated in the same unit. Staffing for the two types of facilities would be basically the same, with the exception, perhaps, of the educational staff.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that HMA grant HMA's application for a Certificate of Need to construct and operate a 60-bed long-term adolescent psychiatric facility in Orlando, Florida. Respectfully submitted and entered this 9th day of July, 1985, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of July, 1985. COPIES FURNISHED: C. Gary Williams and Michael J. Glazer P. O. Box 391 Tallahassee, Florida 32302 John M. Carlson Assistant General Counsel 1323 Winewood Blvd. Building One, Suite 407 Tallahassee, Florida 32301 Robert S. Cohen O. Box 669 Tallahassee, Florida 32301 David Pingree Secretary Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32301 =================================================================
The Issue Whether Petitioner's application for licensure by examination as a mental health counselor was wrongfully denied.
Findings Of Fact Petitioner attended the University of Tampa and graduated with a degree in social work and psychology in 1978. He subsequently attended Heed University in Fort Lauderdale from 1979 through 1981, graduating in 1981 with a master's degree in counseling psychology. Heed University is not accredited by an accrediting agency approved by the United States Department of Education and was not so accredited while Petitioner was there enrolled. Respondent has worked as a mental health counselor at Tampa Heights Hospital (Exhibit 3), at the Hillsborough Regional Juvenile Detention Center, Charter Hospital, as well as at other facilities, and has served on panels and given lectures at mental health related programs not only in Florida but throughout the United States. Suffice it to say, he has considerable experience as a mental health counselor (Exhibits 4 and 6). At the hearing, Petitioner submitted an original of his transcript at Heed University with impressed seal of the University. This satisfies the objection that Petitioner had not presented an original transcript of his grades at Heed University.
Recommendation It is recommended that Alan Leonard Getreu's application to sit for the mental health counselor licensing examination be denied and this appeal dismissed. ENTERED this 27th day of August, 1990, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 1990. COPIES FURNISHED: Charles Tunnicliff, Esquire Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 Salvatore A. Carpino, Esquire One Urban Center Suite 750 4830 West Kennedy Boulevard Tampa, FL 33609 Linda Biedermann Executive Director Clinical Social Work, Marriage & Family Therapy and Mental Health Counseling Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 Kenneth D. Easley General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792
The Issue The issue in these consolidated cases is whether proposed amendments to Rule 10-5.011(1)(o), and (p) F.A.C. relating to certificates of need for hospital inpatient general psychiatric services, are invalid exercises of delegated legislative authority, as defined in Section 120.52(8), F.S.
Findings Of Fact Metamorphosis of the Rules Prior to 1983, hospitals were not separately licensed, and certificates of need (CON) were not required for the designation of beds for psychiatric and substance abuse services. In 1983, statutory amendments to Chapter 381, F.S. addressed psychiatric beds as reviewable projects in the CON program. In 1983, HRS adopted rules establishing four new categories of beds, now found in Rules 10-5.011(1)(o), (p), and (q), F.A.C.: Short-term psychiatric, long-term psychiatric, and short and long-term substance abuse. At the time that the categories were created, HRS conducted an inventory of the hospitals, asking how many beds were designated in each category. Based on the responses, published in the Florida Administrative Weekly, future projections of need were made and applications were considered for CONs. Another category of psychiatric beds was not included in the 1983 rules. Intensive residential treatment programs for children and adolescents were created by statute in 1982, and are defined in Section 395.002(8), F.S. as: a specialty hospital accredited by the Joint Commission on Accreditation of Hospitals which provides 24-hour care and which has the primary functions of diagnosis and treatment of patients under the age of IS having psychiatric disorders in order to restore such patients to an optimal level of functioning. These facilities, called IRTFs, may become licensed as hospitals pursuant to Section 395.003(2)(f), F.S., but as hospitals they must obtain CON approval pursuant to Sections 381.702(7) and (12), F.S. and Section 381.706(1) (b), F.S. IRTFs have no statutory or regulatory restrictions on length of stay and were approved by HRS at one time under an unwritten policy that there be one such facility available in each HRS planning district, without regard to the availability of other long or short term psychiatric programs. In 1985, HRS proposed a rule amendment which would have eliminated the short and long term distinction, as well as the distinction between psychiatric services and substance abuse services. Six months later, the proposed rule amendment was withdrawn. It was highly controversial; several challenges were filed; objections were made by various local health councils; and a new administrator took over. The agency decided to rework its proposed change~;. The agency next began the process of revision in 1987, and in 1988 convened a workshop group to review an issue paper prepared by agency staff. Another work group met in 1989 to consider the consolidation of psychiatric and substance abuse rules. HRS staff reviewed literature on the subjects of substance abuse and psychiatric services, including literature relating to access by indigent patients and the provision of services to children and adolescents. Staff prepared rule drafts which were circulated in- house, including the alcohol, drug abuse and mental health program office; and to such outside groups as the Association of Voluntary Hospitals of Florida, the Florida Hospital Association and the League of Hospitals. The proposed rule amendments which are the subject of this proceeding were filed on January 19, 1990 (substance abuse), and on January 26, 1990 (inpatient psychiatric services) in the Florida Administrative Weekly. The Parties HRS administers the CON program pursuant to Section 381.701, et seq., F.S. (1989). The CON program regulates entry into the Florida health care market by providers through review and approval of certain capital expenditures, services and beds. The petitioner, Florida League of Hospitals, Inc. is a nonprofit corporation which is organized and maintained for the benefit of investor-owned hospitals which comprise its membership. The remaining petitioners and intervenors are current providers of hospital inpatient psychiatric services, long and short term, and of inpatient substance abuse services, long and short term. The petitioners and intervenors are all substantially affected by the proposed rules and have stipulated to the standing of all parties in this proceeding. Abolishing Distinctions Between Long-Term & Short-Term Psychiatric Beds "Short term hospital inpatient psychiatric services" is defined in existing rule 10-5.011(1)(o)1, FAC, as follows: Short term hospital inpatient psychiatric services means a category of services which provides a 24-hour a day therapeutic milieu for persons suffering from mental health problems which are so severe and acute that they need intensive, full-time care. Acute psychiatric inpatient care is defined as a service not exceeding three months and averaging length of stay of 30 days or less for adults and a stay of 60 days or less for children and adolescents under 18 years. "Long term psychiatric services" is defined in existing rule 10- 5.011(1)(p)1., FAC as a category of services which provides hospital based inpatient services averaging a length of stay of 90 days. Neither rule addresses services to adults with an average length of stay (ALOS) of 30-90 days, or services to children and adolescents with a 60-90 day ALOS. Because of this, and the "averaging" process, long term hospitals legitimately serve "short term" patients and short term hospitals may serve "long term" patients. One party has calculated than a long term facility could legally provide short term services for 80% of its patients, and long term services for only 20% of its patients and still have an ALOS of 90 days. Under the existing rules a facility must file a CON application to convert from long term to short term beds, or vice versa, and is subject to sanctions for failure to comply with the designation on its CON. The proposed changes would repeal rule 10-5.011(1) (p), FAC regarding long term services, and would amend rule 10- 5.011(1) (o), FAC to delete the definition of short term services, thereby permitting facilities to serve patients without regard to length of stay. The proposed changes are supported by several factors upon which a reasonable person could rely. Substantial changes have occurred in the last decade in clinical practices and in third party reimbursement to reduce the ALOS for hospital inpatient psychiatric care. Prior to the 1960s, there was no distinction between long and short term care, as all hospital based care was long term with an emphasis on psychoanalytic therapy. Beginning in the 1960s, the concept of community mental health programs evolved with an emphasis on deinstitutionalization of patients in large public "asylums" and with a goal of treatment in the least restrictive environment. In more recent years the trend has spread to the private sector. Improvements in the availability and use of psychiatric drugs, the use of outpatient care or partial hospitalization, and improved follow up care have led to a dramatic decrease in ALOS. Long term care is costly, and whether third party payors have been a driving force, or are merely responding to the trends described above, long term inpatient reimbursement is virtually nonexistent. During the 19805, most insurance companies imposed a 30-day limit on psychiatric inpatient care or imposed monetary limits which would have effectively paid for less than a 90-day term. CHAMPUS, the program providing insurance to military dependents, was providing long term coverage in 1982, but by 1986 its coverage was rarely available for more than 30-60 days, and today, under CHAMPUS' case management system, 30 days is a "luxurious amount". Other large third-party payors such as Blue Cross/Blue Shield have similar limits or aggressively use case management (the close scrutiny of need on a case by case basis) to limit reimbursement for inpatient care. Of the two or three long term facilities in existence at the time that HRS' rules were originally adopted, only one, Anclote Manor still reported an ALOS of over 90 days by 1989, dropping from an ALOS of 477.9 days in 1986 to 145.4 days in 1989. At the same time its occupancy rate dropped below 50%. There is an interesting dialogue among experts as to whether there still exists a clinical distinction between long term and short term inpatient psychiatric care. Studies at the Florida Mental Health Institute found no difference in rate of rehospitalization over a 12 month period between patients who were in a nine week program and patients from Florida State Hospital with a 500 day length of stay. Some mental health practitioners are looking now at treating the chronic psychiatric patient with repeated short term hospital stays and less intensive care between episodes, rather than a single long term inpatient stay. Other practitioners maintain that a long term psychiatric problem is behavioral in nature and requires a total life readjustment and longer length of stay. Whichever practice may be preferable, the facts remain that fewer and fewer mental patients are being treated with long term hospitalization. The proposed rules would not foreclose any facility from providing long term care, if it finds the need. To the extent that a clinical distinction exists between short and long term care, the existing rules do not address that distinction, except from a wholly arbitrary length of stay perspective. The existing rules no longer serve valid health care objectives. Existing providers with short term CONs are concerned that the allowing long term facilities to convert will further glut an underutilized market and will result in an increase in vacant beds and a rise in the cost of health services, contrary to the intent of the CON program. Intensive residential treatment facilities (IRTFs), which will be folded into the need methodology for children and adolescent beds, have no current restrictions on length of stay and may already compete with impunity with the short term providers. Moreover, long term facilities are also providing substantial short term care as a result of the trends discussed above. HRS has not consistently enforced the length of stay restrictions of long term providers' CONs. Whether those CONs were improvidently granted is beside the point. The capital costs have already been incurred; the beds are available; and the beds are being used, in part, for short term services. Abolishing the distinction is a rational approach to current conditions. And in determining that all existing providers would be placed in the same position regarding length of stay, HRS avoids the regulatory nightmare of trying to enforce limitations on existing providers and approving new beds without limitations. Creating a Distinction Between Adult and Children/Adolescent Beds Rule 10-5.011(1)(o)3.c. creates a CON distinction between general psychiatric services for adults, and those services for children and adolescents. Rule 10-5.011(1)(o)4., as proposed, would create separate need criteria for hospital inpatient general psychiatric services for adults and for children/adolescents. Adolescents are defined in Rule 10- 5.011(1)(o)2.a., as persons age 14 through 17 years. Persons over 17 years are adults, and under 14 years are children. There are valid clinical reasons to distinguish between programs fob the separate age groups. Although there is some overlap, differing therapies are appropriate with different ages. The types of services offered to adults are not the same as those which are offered to children. Children, for example, often receive academic educational services while being hospitalized. Adults receive career or vocational counseling and marriage counseling. The required separation by age categories would remove some flexibility from providers. However, this is offset by the Department's valid need to track for planning purposes inpatient services to children and adolescents separately from those provided to adults. Based on anecdotal evidence, HRS' Office of Alcohol, Drug Abuse and Mental Health Program Office is concerned about the possible overutilization of hospital inpatient services for children and adolescents and the potential that when insurance reimbursement expires they are discharged without clinical bases. Taking Inventory Under the proposed rule, in order to separately regulate adult and children/adolescent beds, HRS will fix an inventory of uses as of the time that the rule takes effect. For facilities with CONs which already allocate beds between the two groups, the proposed rule will have no effect. For facilities without a designation, as long as adults and children/adolescents are kept in separate programs, the allocation can now be mixed and changed at will. The rule amendment will freeze that use in place. HRS has conducted a preliminary survey to determine the existing uses of psychiatric, substance abuse and residential treatment program beds. The survey of approximately 120 facilities is complete, but is not intended to limit those facilities unless their CON already provides a limit. A final inventory will be taken after the proposed rules become effective. The inventory will be published, and providers will be given an opportunity to contest its findings. The ultimate outcome will be amended CONs and licenses which reflect each facility's mix of adult and children/adolescent beds. The process is a fair and reasonable means of commencing separate regulation of services to these age groups. The Definitions Proposed rules 10-5.011(1)(o)2.1., 2.p., and 2.t.) define "hospital inpatient general psychiatric services", "psychiatric disorder" and "substance abuse", respectively. Each of these provisions defines the terms by reference to classifications contained in the Diagnostic and Statistical Manual of Mental Diseases (DSM-III-R Manual) and equivalent classifications contained- in the International Classification of Diseases (ICD-9 Codes). The rule as originally proposed included the phrase "or its subsequent revisions", after incorporating the manuals by reference. In testimony, and in the parties second agreement (Hearing Office exhibit 3) the phrase is deleted. However, it still appears in proposed rule 10-5.011(1) (o)2.1., perhaps inadvertently. The DSM-III-R is a generally recognized manual for the classification of mental disorders and is widely used by clinicians and medical records professionals to categorize the conditions of patients. The ICD-9 codes are broader than just mental disorders, but they have a section on mental disorders with numbers that are identical to those in the DSM-III-R. Although the manuals are complex and subject to interpretation, clinicians are accustomed to their use and they provide a reasonable guide as to the services which may be provided in an inpatient substance abuse program, as distinguished from an inpatient psychiatric program. Advertising Limited Proposed rule 10-5.011(1)(o)3.d. (as amended in the parties second agreement, Hearing Officer exhibit #3), provides: D. Advertising of services. The number of beds for adult or for children and adolescent hospital inpatient general psychiatric services shall be indicated on the face of the hospital's license. Beds in intensive residential treatment programs for children and adolescents which are licensed as specialty hospital beds will be indicated as intensive residential treatment program beds on the face of the hospital's license. Only hospitals with separately-licensed hospital inpatient general psychiatric services, including facilities with intensive residential treatment programs for children and adolescents which are licensed as specialty hospitals, can advertise to the public the availability of hospital inpatient general psychiatric services. A hospital with separately licensed hospital inpatient general psychiatric services that does not have a certificate of need for hospital inpatient substance abuse services may advertise that they [sic] provide services for patients with a principal psychiatric diagnosis excluding substance abuse and a secondary substance abuse disorder. The Department does not currently have CON, licensure, or other rules which limit the ability of a health care provider to advertise its services, and has never used advertising as a factor in conducting CON review for any proposed services. HRS included provisions regarding advertising in its proposed rules because it had evidence that existing facilities have used misleading advertisements. The evidence came from other providers, rather than consumers. However, it is the consumer whom the agency feels may be confused by advertising which implies that services are available when such services cannot be legally provided under the facility's license. The advertising provision is prospective in nature, seeking to prevent licensed providers from advertising services for which they are not licensed. The provisions do not relate to CON review, and the staff is unclear as to how the rule would be implemented. Licensing and CON review are two separate functions within the agency. Although the term is not defined in the proposed rule, advertising broadly includes word of mouth referrals and public presentations by professionals in the community, as well as traditional media and written advertisements. Properly utilized, advertising helps consumers exercise choice and gain access to needed services. Improper advertising is subject to the regulation of federal and state agencies other than the department. New Need Methodology, with Preferences Proposed Rule 10-5.011(1)(o)4., deletes the existing population ratio methodology and creates a need formula based upon use rate, for adult and children/adolescent inpatient psychiatric services. Certain preferences are also described. 34. Rule 10-5.011(1) (o)4.e.(III) provides: In order to insure access to hospital inpatient general psychiatric services for Medicaid-eligible and charity care adults, forty percent of the gross bed need allocated to each district for hospital inpatient general psychiatric services for adults should be allocated to general hospitals. The same provision for children and adolescent services is found in rule 10-5.011(1)(o)4.h.(III). Medicaid reimbursement is not available for inpatient services in a specialty hospital. 35. Rule 10-5.011(1)(o)4.i. provides: Preferences Among Competing Applicants for Hospital Inpatient General Psychiatric Services. In weighing and balancing statutory and rule review criteria, preference will be given to applicants who: Provide Medicaid and charity care days as a percentage of its total patient days equal to or greater than the average percentage of Medicaid and charity care patient days of total patient days provided by other hospitals in the district, as determined for the most recent calendar year prior to the year of the application for which data are available from the Health Care Cost Containment Board. Propose to serve the most seriously mentally ill patients (e.g. suicidal patients; patients with acute schizophrenia; patients with severe depression) to the extent that these patients can benefit from a hospital-based organized inpatient treatment program. Propose to service Medicaid-eligible persons. Propose to service individuals without regard to their ability to pay. Provide a continuum of psychiatric services for children and adolescents, including services following discharge. The preferences are similar to those in CON rules relating to other types of health services and are intended to implement, in part, the legislative mandate that the agency consider an applicant's ". . . past and proposed provision of health care services to medicaid patients and the medically indigent." Section 381.705(1) (n), F.S. Under Medicaid reimbursement general hospitals are paid a set per diem based on a variety of services provided to all Medicaid patients, regardless of actual cost of the individual service. As psychiatric services are generally less costly than other services on a per diem basis, hospitals may recoup a greater percentage of their costs in serving Medicaid psychiatric patients. This and the fact that public hospitals receive some governmental subsidies do not obviate the need for incentives in the CON program. Not all of the charity care provided by these hospitals is funded and a large amount is written off. Although Petitioners argue that the preferences are not needed, or are too generous, none provide competent evidence that the facilities who do not enjoy the preferences are unduly prejudiced. The 40% allocation of bed need to general hospitals is a guideline, not a maximum, as applied by the agency, and presumes that there are general hospitals competing in any batch in question. It is not intended to frustrate a separate section of the rule which allows a hospital with at least an 85% occupancy rate to expand regardless of need shown in the formula and the occupancy rate district-wide. See 10- 5.011(1) (o)4.d. and g. "Evaluation of Treatment Outcomes" The proposed rules contain three provisions relating to a hospital's evaluation of its patients' treatment outcomes. Rule 10-5.011(1) (o)3.i, includes among "required services", ". . . an overall program evaluation of the treatment outcomes for discharged patients to determine program effectiveness." Rule 10-5.011(1)(o)8.j., requires in the application, A description of the methods to be used to evaluate the outcome of the treatments provided and to determine the effectiveness of the program, including any summary evaluation outcome results for hospital inpatient psychiatric services provided at other facilities owned or operated by the applicant in Florida and other states. The data shall exclude patient specific information. Rule 10-5.011(1)(o)9.e., imposes a similar additional requirement in applications from providers seeking more beds: A summary description of any treatment outcome evaluation of the hospital inpatient general psychiatric services provided at the facility for which additional beds are requested, for children, adolescents or adults as applicable to the facility for the 12-month period ending six months prior to the beginning date of the quarter of the publication of the fixed bed need pool. The purpose of these requirements, according to HRS, is to insure that hospitals will know whether its patients are better off when they leave than when they were admitted to the program. Most hospitals have such knowledge. The terms, "outcome determination", "summary evaluation outcome results", "summary description of treatment outcome evaluation" and "overall program evaluation of treatment outcomes", are nowhere defined in the proposed rules, and the department intends to leave to each applicant or provider the methodology for determining whether its patients are "better off" for having been in its program. Hospitals do not routinely evaluate their patients after discharge and such follow up would be difficult and costly. Most hospitals do, however, establish a treatment plan upon admission, continue to review and revise that plan as needed throughout treatment, and determine the patients' readiness for discharge based on the goals successfully attained. This is the process described by Florida Hospital's Center of Psychiatry Administrative Director. The rules require no more than a description similar to that provided by Florida Hospital. The rules set no standards and do not dictate that follow- up of discharged patients be accomplished, even though post discharge evaluation may be of value and is generally accepted as the best tool for measuring treatment effectiveness. The measurement of treatment outcome is an inexact process and relies on a series of subjective standards which need to be described. HRS does not intend to set those standards and, other than have its applicants demonstrate that a process is in place, the agency has no idea how the required information will impact its CON review. Without definitions and standards, the agency will have no way of comparing one applicant's information with another's. Without specificity and more guidance the rules fail to apprise the applicant of what is required and will provide no meaningful information to the agency in its CON review function. Miscellaneous Provisions The Non-Physician Director. The proposed definition of "Hospital Inpatient General Psychiatric Services" in Rule 10-5.011(1) (o)2.1. includes services provided under the direction of a psychiatrist or clinical psychologist In drafting this definition, agency staff relied on advice from experts at their workshops and on advice from the agency's own Alcohol, Drug Abuse and Mental Health Program Office, to the effect that professionals, other than physicians, are qualified to direct the units. Interpretation and Application. It is not the intention of HRS that its rules be interpreted to override good medical practice or the sound judgement of treating physicians. Thus, the rules would not prohibit stabilization of a patient who is presented to the emergency room of a hospital without a CON for substance abuse or psychiatric services. Stabilized Alzheimers patients may be housed in nursing homes. Nor do the rules prohibit or subject to sanctions the occasional admission of a psychiatric or substance abuse patient to a non-substance abuse or psychiatric bed so long as this occurs infrequently in a hospital without psychiatric or substance abuse programs. "Scatter" beds are not eliminated. Those beds would continue to be licensed as acute-care beds, as they would not be considered part of an organized program, with staff and protocols, to provide psychiatric or substance abuse services. Proposed rule 10-5.011(1)(o)4.h.(v) provides that applicants for IRTPs for children and adolescents seeking licensing as a specialty hospital must provide documentation that the district's licensed non-hospital IRTPs do not meet the need for the proposed service. The department is not seeking specific utilization data in this regard, as such is not available. General information on the availability of alternatives to inpatient hospital services is obtainable from local health councils and mental health professionals in the community. Quarterly Reports. Proposed rule 10-5.011(1)(o)10. requires: Facilities providing licensed hospital inpatient general psychiatric services shall report to the department or its designee, within 45 days after the end of each calendar quarter, the number of hospital inpatient general psychiatric services admissions and patient days by age and primary diagnosis ICD-9 code. The Health Care Cost Containment Board (HCCCB) is already collecting similar quarterly data from providers. The reporting system is being updated and improved but in the meantime HRS is experiencing problems with the type and accuracy of the data it receives from HCCCB. One problem is that HCCCB collects its data with regard to all discharges in a psychiatric or substance abuse diagnostic category, whereas HRS is interested only in data from a psychiatric or substance abuse program. Until the system improves, HRS needs the information it seeks from the providers in order to plan and apply the need methodology. The agency intends to designate local health councils to collect the data and has already worked with them to set up a system. If reports provided to the HCCCB comply with the proposed requirement, HRS has no problem in receiving a duplicate of those reports. The Economic Impact Statement Pursuant to Section 120.54(2), F.S., HRS prepared an economic impact statement for the proposed rule. It was authored by Elfie Stamm, a Health Services and Facilities Consultant Supervisor with HRS. Ms. Stamm has a Masters degree in psychology and has completed course work for a Ph.D. in psychology. She has been employed by HRS for 13 years, including the last ten years in the Office of Comprehensive Health Planning. She is responsible for developing CON rules, portions of the state health plan, and special health care studies. It was impossible for Ms. Stamm to determine how the rule could impact the public at large. The economic impact statement addresses generally the effect of abolishing the distinction between long and short term services and acknowledges that the rule will increase competition among short term service providers. The impact statement also addresses a positive impact on current long term providers.
Findings Of Fact Petitioner has had a relationship with his wife since they were 16 years old. At the time the hearing was conducted, husband and wife were 24 years old. They had been married for approximately three years and had a child who was four years old. Beginning February 1995, Petitioner became suspicious that his wife was having an affair with another man. Around that time, the couple argued several times a week. This would cause Petitioner to leave their home. In addition, Petitioner and Mrs. McCall would not speak to each other for a couple of days following these arguments. On March 16, 1995, the man with whom Petitioner's wife was having the relationship called the couple's home. On that occasion, Mrs. McCall would not say who was speaking to her on the telephone and appeared secretive. It led to a further argument between Petitioner and Mrs. McCall. Petitioner then grabbed his keys and started to leave. Mrs. McCall struggled with him to get the keys out of his hand. During the struggle, Mrs. McCall was scratched on her chest. The noise that the couple made was sufficiently noticeable that the neighbors called the police to investigate. When the police arrived at Petitioner's home on March 16, 1995, Petitioner was sitting on the couch. The police noticed the visible marks on Mrs. McCall's chest. Consequently, Petitioner was charged with battery under Section 784.03, Florida Statutes. On March 18, 1995, Petitioner pled no contest to the offense of battery for the incident that took place on March 16, 1995 involving his wife. He was given two days unsupervised probation and required to pay $75.00 in court costs. The court adjudicated Petitioner guilty of the offense. After the March 16, 1995 incident the McCalls continued to argue. On April 11, 1995, when Petitioner left home to go to work that morning, he told Mrs. McCall that he was going to leave work in the afternoon and travel to Deland, Florida, to see his father. Instead, Petitioner went home that afternoon to get some papers before making the trip to see his father. When he arrived at his home a person named Renee, Mrs. McCall's friend, was watching the McCalls' child in one room, while Mrs. McCall was in bed with her male acquaintance in the McCalls' bedroom. When Petitioner discovered his wife with another man, he began to scream and yell and picked up his son to leave the home. Mrs. McCall tried to intervene and stop Petitioner from leaving the home with her son. During the course of this incident, Petitioner grabbed his wife by the arms and pushed her aside, causing her to fall against the wall. The areas upon which she was grabbed by Petitioner were bruised. Mrs. McCall is prone to bruising because she is a hemophiliac. Their child was not harmed during this physical exchange between the couple. After the exchange, Petitioner left the home and went to Deland, leaving the child with his mother. Before discovering his wife in bed with the other man, Petitioner did not know, as a matter of fact, that his wife was having a relationship with that person. When Petitioner discovered his wife in bed with the other man, he did not threaten her, notwithstanding the yelling and screaming. Renee had called the police when Petitioner arrived at the home, but the police did not arrive for one-half hour to one hour after Petitioner had left the home. Mrs. McCall was concerned about how her husband would react beyond the point where he had discovered her with another man. Therefore, she determined to make a complaint about her husband's physical activity in which he bruised her arms. Based upon that complaint, the police determined to arrest Petitioner. Following the trip to Deland Petitioner came back that night and spent the night with a friend in Jacksonville, Florida. The next morning Petitioner called Mrs. McCall and inquired concerning the circumstances of their exchange. Mrs. McCall told him that she had called the police after he left because she was afraid of what he might do to her and that made her "press charges". Petitioner responded by telling his wife where he was located and telling her to have the police come to that location and pick him up, which they did. When the police arrested Petitioner for the events on April 11, 1995, they again charged him with a violation of Section 784.03, Florida Statutes, and made mention that the battery for which he was accused was associated with domestic violence. Following the arrest, Mrs. McCall spoke with the state attorney's office to have them drop the charges for the battery that occurred on April 11, 1995. The state attorney's office was unwilling to drop the charges in view of the prior charge dating from March 16, 1995. Petitioner pled no contest to the battery offense related to the April 11, 1995 incident. He was given a 30-day sentence, credited with serving two days of the sentence, and the remaining 28 days of that sentence were suspended, conditioned upon the successful service of probation. The probation was served for nine months. Petitioner was adjudicated guilty for the offense and was required to participate in a program for individuals who had committed offenses involving domestic violence. The program emphasized controlling one's aggression. Petitioner completed the program related to management of his aggression. In the program to deal with domestic violence, Petitioner and other participants were required to discuss the experiences they had concerning domestic violence. The McCalls lived apart from April, 1995 until January, 1996. During that time, Petitioner kept their child for the most part because his living arrangements were more suitable than those under which Mrs. McCall existed. While they were estranged, initially, the couple did not do things together and would separately spend time with their child. At the end of their estrangement the couple began to do things as a family unit. Subsequent to being reunited, the McCalls had been seeing a marriage counselor for about a month at the time the hearing was conducted. The McCalls had been to four sessions with the counselor and intended to continue seeing a marriage counselor in the future. The McCalls described their relationship as improving since they have been reunited. Prior to the events in March and April, 1995, in which Petitioner battered Mrs. McCall in the manner described, Petitioner had never struck his wife. As explained at the hearing, Mrs. McCall is not concerned that her husband will batter her in the future. Petitioner holds a bachelor's degree in psychology. He has one year of study in sociology in a bachelor's-level program. In the past, he worked two and one-half years for ARA Living Centers, providing direct care to adults. He left that position and took employment with an organization known as New Directions. This was a mental-health position, working with children on an out- patient basis. Petitioner held this job for approximately two years. Beyond that point, Petitioner took a position as a child-guidance case worker in a mental-health capacity. It was that position that prompted the screening that was conducted in January, 1996, leading to the decision to disqualify him from that employment. The procedures followed in the disqualification are as detailed in the preliminary statement above. Petitioner contested the decision to deny him an exemption from disqualification. His request to be heard before the Respondent and to seek a formal hearing to contest the preliminary decision by Respondent denying the exemption from disqualification were both timely filed. Before being terminated from his position as a child-guidance counselor based upon the disqualification, Petitioner had worked voluntarily at a group home for children. In the past, when working with children and adults, Petitioner has never been disciplined or reprimanded concerning his conduct in providing that care. Mr. George Robinson is an HRS Protective Services worker. He began work with Respondent on June 12, 1995. Prior to that employment, Mr. Robinson worked in the Mental Health Center in Jacksonville, Florida, as a discharge planner. Mr. Robinson knew Petitioner when they attended college. He considers Petitioner his friend and speaks highly of Petitioner's character. In addition, Mr. Robinson is familiar with Petitioner's work history and recommended that Petitioner receive a position at the Mental Health Center of Jacksonville, Florida, where Petitioner was employed from November 15, 1993 through November 30, 1995. Jane Escobar, M.S.W., Manager, Children's Department for the Mental Health Center of Jacksonville, Inc. refers to Petitioner's work history with that organization. Among the duties Petitioner performed with the organization was as an individual assigned to the Therapeutic Group Home within the Mental Health Center, in which position Petitioner worked with emotionally-disturbed children. This work entailed association with counseling groups, individual social skills training, chart documentation, and recreational activities. It also involved interaction with families and other treating professionals. Following receipt of his bachelor's degree, Petitioner was promoted to a position of mental-health counselor within the Mental Health Center, a position which required him to carry a case load of approximately 15-18 clinical cases, involving individual counseling with children, family work, and often involving seeing the children in their homes, as well as at their schools, and in his office. Petitioner left the position with Mental Health Center of Jacksonville in good standing to pursue a career-enhancing position. Ms. Escobar considers Petitioner to be a well-liked and a highly-respected clinician. Ms. Escobar indicates that the Mental Health Center would willingly return Petitioner to employment if a position were available at the Center. Mr. Val Thomas has written to commend Petitioner for his work as a counselor for Mr. Thomas' son. Mr. Thomas attributes Petitioner's good works for helping the Thomas family to correct problems which their son was having. Ms. Nancy Edmonds, a clinical social worker, speaks favorably of Petitioner, whom she has known in a professional and personal capacity for two years. She is impressed by Petitioner's moral character and finds Petitioner to be an understanding and caring person. She has found him capable of dealing with the most difficult circumstances in their work, without losing his composure. She finds that he works well with children and adolescents. Mr. Brian J. Maxson is the First Step Coordinator at Hubbard House, the facility in which Petitioner participated in group sessions concerning his conduct toward his wife, as a condition of his probation. Mr. Maxson confirms that Petitioner completed that program. At present, Petitioner works with AT&T in soliciting customers to use its services. He had held that position for two months when the hearing commenced.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered granting Petitioner an exemption from disqualification to work with children in positions of special trust. DONE AND ENTERED this 14th day of June, 1996, in Tallahassee, Florida. CHARLES C. ADAMS, 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 14th day of June, 1996.
The Issue Whether Respondent's license to practice medicine should be suspended or revoked, or the licensee otherwise disciplined, for alleged violations of Chapter 458, Florida Statutes, as set forth in the Administrative Complaint, dated April 17, 1981, and Administrative Complaint, dated September 15, 1981, as amended on January 15, 1982. This proceeding commenced with Petitioner's filing of an Administrative Complaint on April 17, 1981, alleging that Respondent should be disciplined under Chapter 458, Florida Statutes, (1975)(1979) as a result of his alleged misconduct in 1974-75 whereby he engaged in sexual intercourse with one Sally Burton which resulted in her pregnancy and subsequent abortion. The Complaint also contained eleven counts involving the alleged prescribing of Schedule II controlled substances in 1980 by Respondent without a DEA registration certificate authorizing him to do so. Additionally, one count involved the alleged issuance by Respondent of a prescription to himself for a Schedule II controlled substance. Respondent thereafter requested an administrative hearing pursuant to Section 120.57(1), Florida Statutes, and the case was referred to this Division for appointment of a Hearing Officer. Notice of Hearing was issued on July 14, 1981 for a hearing to be held on September 22-23, 1981 at Tampa, Florida. Petitioner filed a motion for continuance of the hearing on the ground that a second administrative complaint had been issued against the Respondent on September 16, 1981, and that the two complaints should be consolidated for the purpose of hearing. The motion was granted and the hearing indefinitely continued. Petitioner filed its Second Administrative Complaint, dated September 15, 1981, with the Division on October 22, 1981, together with a motion to consolidate the two complaints. Respondent requested a Section 120.57(1), Florida Statutes, hearing as to the matters alleged in the complaint. The cases were consolidated by Order, dated November 13, 1981, pursuant to Rule 28-5.106, Florida Administrative Code. Notice of Hearing for the consolidated cases was issued on November 13, 1981 for a hearing to be held on February 15-16, 1982 at Tampa, Florida. Thereafter, Petitioner moved to amend Counts IV and VI of the Second Complaint and said motion was granted by Order dated February 5, 1982. As amended the Second Complaint alleged violations of Chapter 458, Florida Statutes, during various periods from 1967 to 1981. In general terms, it was alleged that Respondent had provided improper treatment to a patient suffering from alcoholic depression and anxiety, and that he employed the patient as a "co-therapist" in group sessions which had a negative impact on the patient's mental health as well as members of the group. The complaint further alleged that Respondent had engaged in activities of a sexual nature with a female patient, Emily Garrett, in 1968 which resulted in her emotional upset and harm. Finally, discipline was sought against Respondent as a result of his conviction in the Circuit Court of Hillsborough County, Florida on June 10, 1981 of manslaughter pursuant to Section 482.07, Florida Statutes, in connection with the death of Sally Burton. On February 5, 1982, Respondent filed a Motion for Continuance of the hearing due to a conflict in the schedule of one of his legal counsel, and due to the then pending appeal of Respondent's conviction before the Second District Court of Appeal. The motion was orally denied prior to hearing, but was renewed at the commencement of hearing on February 15, 1982. At that time, Respondent gave consent to the withdrawal of his current counsel, and a conditional appearance was entered by Frank Ragano, Esquire who conditioned such appearance on having an opportunity to familiarize himself with the facts and law of the case. The renewed motion was denied for lack of good cause, but Respondent was afforded the opportunity to proceed with his counsel who was then present, William S. Lancaster, Esquire, during presentation of Petitioner's case, at which time a continuance would be granted to afford additional time for Mr. Ragano to assist in preparing Respondent's defense. Mr. Lancaster requested that he be permitted to withdraw due to his stated inability to fully represent the Respondent at the hearing. Respondent consented to the withdrawal, and declined to proceed in the manner suggested by the Hearing Officer, and thereupon left the hearing room. Accordingly, the proceeding commenced in the absence of Respondent and his counsel. After the testimony of seven witnesses of Petitioner had been received, Respondent and Mr. Lancaster reentered the hearing room and agreed to participate in the proceeding provided a continuance would be granted at the conclusion of Petitioner's case. Respondent's counsel then cross-examined three of the witnesses who had previously testified. The hearing was continued on February 16, 1982 until April 20, 1982, and was concluded on April 22, 1982, except for the submission of late-filed exhibits in the form of depositions of four rebuttal witnesses and letter from the Drug Enforcement Administration. At the hearing, Petitioner presented the testimony of thirteen witnesses, including the Respondent. Respondent called thirty-three witnesses and testified in his own behalf. Petitioner submitted twenty-two exhibits in evidence. Those exhibits which were received provisionally at the hearing are now admitted. Respondent submitted nine exhibits, but withdrew Respondent's Exhibit 3, and Respondent's Exhibit 6 was rejected. Respondent's Exhibit 9 "A Guide for the Individual and Group Psychotherapy" was erroneously stated at the hearing to be Respondent's Exhibit 8, and has been renumbered. Late filed exhibits consisted of a letter from the Drug Enforcement Administration (Respondent's Exhibit 11), and the depositions of Dr. Joseph Lupo (Respondent's Exhibit 8), Shirley Heflin (Respondent's Exhibit 10) Emily Garrett (Petitioner's Exhibit 23), Captain R. W. Poindexter (Petitioner's Exhibit 24), and Janice Simmons (Petitioner's Exhibit 25) A Proposed Recommended Order filed by Petitioner has been fully considered, and those portions thereof not adopted herein are considered to be unnecessary, irrelevant, or unsupported in law or fact. Respondent has requested that this Recommended Order be delayed pending action by the Supreme Court of Florida on Petition for Writ of Certiorari in the criminal proceeding. This request is denied.
Findings Of Fact Respondent Louis John Tsavaris has been licensed to practice medicine in Florida since August 15, 1956. He received his medical degree at the University of Miami School of Medicine in 1956, interned at the Cornell Medical Center, and attended the University of Michigan where he was an Assistant Resident and Junior Clinical Instructor. He began his practice as a psychiatrist at Tampa in 1962 and has continuously practiced in that capacity. (Testimony of Respondent, Petitioner's Exhibit 19). Pierce H. Brereton, Jr. became a patient of Respondent in 1967. He was a homosexual who suffered from depression and a severe character disorder, together with an alcohol and drug problem. Brereton had had several prior hospitalizations for schizophrenia. Respondent prescribed Antabuse for the patient to control his drinking, but Brereton discontinued its use after several months. He participated in group therapy sessions conducted by Respondent until 1978 when he terminated his patient relationship. Although Brereton soon resumed his drinking habits after discontinuing Antabuse, he attempted to hide the fact from Respondent. As early as 1974, and off and on throughout the following years, Respondent prescribed Valium for Brereton's depression and anxiety. About 1974, Respondent opened another office in Siesta Key and employed Brereton to run errands and to do janitorial work at that location. Respondent then utilized Brereton as a "co-therapist" in psychiatric group therapy sessions for a fee of approximately $100 per week. Brereton had had no formal training or qualification as a therapist, but several years later commenced graduate courses in Gestalt therapy at the University of South Florida. Another "co- therapist", Kathryn Von Schmidt, who had been a patient of Respondent since 1973, was employed by him to assist at group sessions commencing in 1974. She was unqualified at the time, but received a Master's Degree in Counselling in December, 1975. She continued in her capacity as a co-therapist until the end of 1976. Also, Marian Klein, who held a Master's Degree in Psychology and had been Respondent's patient since 1973, became a co-therapist from 1975 to 1979. Brereton worked as co-therapist with both Von Schmidt and Klein during) the period 1974-1978. Klein found that his ability as a therapist varied from excellent to disruptive. Breretons appearance and general manner improved substantially during the years that he served as a co-therapist. Several of the group patients testified at the hearing that his presence caused a deterioration in their condition because he was unqualified to conduct therapy sessions. However, a number of other patients who attended the sessions seemed unaware that Brereton actually had any kind of "official" capacity, and regarded him merely as loquacious and as a "roll-taker". Respondent was either present or readily available during virtually all of the sessions in which co-therapists were assisting in the conduct of group sessions. Respondent employed Brereton as a co-therapist ostensibly to provide him with a reference for future employment and in the belief that such activity would be therapeutic for him. Brereton testified that his drinking had continued during the years when he was employed by Respondent, and that Respondent frequently drank alcoholic beverages with patients, including Brereton, before and after therapy sessions. He claimed that Respondent frequently came to his (Brereton's) residence with a bottle of liquor which they drank. The weight of the evidence shows that Brereton hid his drinking from Respondent and other patients, and that they were virtually unaware of his continuing alcohol problem. Respondent occasionally would join a group for dinner at a restaurant and have a drink with them, but did not make a practice of it. The evidence is insufficient to show that he either drank frequently with Brereton or otherwise made liquor available to him. In 1978, Brereton became irrational and abusive and came to therapy sessions on occasion when he had been drinking. At such times, Dr. Klein would send him home. She finally informed Respondent about his actions on one occasion. Respondent then warned Brereton of the dangers of taking Valium when he had been drinking. The patients in the groups were aware of his drinking in 1978 and were disturbed by his conduct. Brereton had considered Respondent to be "as infallible as the Pope" during his early years as a patient, but after the death in 1975 of Cassandra "Sally" Burton, who had been another of Respondent's patients, and Respondent's subsequent indictment for her death with consequent publicity of that fact, Brereton harbored hostile feelings against Respondent. He has filed a malpractice suit against Respondent and urged other patients to do so. Expert opinion holds that, although a "co-therapist" or other assistant at group therapy sessions should have appropriate credentials in counselling or psychology, an unqualified patient's presence in come leadership capacity would not necessarily impair his or her mental health, or that of the other patients if the group is structured with a qualified therapist or psychiatrist present at the sessions. It is found that insufficient evidence has been presented to establish that Brereton's activities as a co-therapist had a negative or deleterious impact on either his mental health or that of other patients. (Testimony of Respondent, Brereton, Crumpler, Speck, Ramirez, Burdette, Gonzalez, Stenberg, Prince, Adams, Putney, Melton, Albano, Brown, Barker, Burns, Von Schmidt, Buckman, Wheatley, Silverman, Jones, Carlton, Gardner, Arrifaht, Lancaster, Klein, Petitioner's Exhibits 4-5, 7-8). In 1962, Emily Garrett, then approximately 15 years old, became a patient of Respondent for several months. She suffered from depression and was autistic. She returned for treatment with Respondent in 1965 or 1966 and continued as a patient until 1970. She testified by deposition at the hearing that on either April 6 or 13, 1968, Respondent requested that she come in his office after a group therapy session where he proceeded to unbutton her blouse and fondle her breasts, and sought to have her perform an oral sex act upon him. She claimed that her depression was increased as a result of Respondent's sexual advances, thus precipitating a suicide attempt on April 19th by taking a large quantity of Valium prior to a group therapy session. After the session, when Respondent learned of her ingestion of the drug, he had several of the group members take her to the hospital where her stomach was pumped out. She returned home and then took some other drugs and was returned to the hospital where she remained for several days. Garrett further testified that on May 28, 1968, Respondent again fondled her breasts in his office after a group session had terminated. Garrett continued as Respondent's patient until October, 1970 when she changed psychiatrists and became a patient of a Dr. Vesley. This was due to the fact that she was unable to continue private sessions with Respondent because he was commuting between Tampa and New Jersey in order to teach at a medical college. In April, 1981, she became aware of publicity surrounding Respondent and voluntarily contacted Petitioner's investigators, at which time she related to them her allegations concerning Respondent's misconduct. Although she testified that she had told her sister about the incidents several years after they had occurred, and had also related them to Dr. Vesley, neither of those individuals testified at the hearing. Garrett testified that she did not report or otherwise complain about Respondent at an earlier time because of her feelings of dependence and sense of loyalty to him. Respondent denied Garrett's allegations and claimed that she had come to his office several times after her discontinuance as a patient and wanted him to become romantically involved with her. Although experts in the field of psychiatry agree that it is clearly unethical and a deviation from acceptable standards of practice for a psychiatrist to have sexual contact with a patient, it is also common for female patients to fantasize about their relationships with their psychiatrist. It would be unusual for a patient to continue treatment with a psychiatrist after he had committed a sexual assault against her. It is found that insufficient credible evidence has been presented to establish that Respondent committed the acts alleged by Garrett. (Testimony of Garrett (Depositions-Petitioner's Exhibits 17-18, 23), Respondent, Gonzalez, Warren, Afield, Gardner). Cassandra "Sally" Burton became a patient of Respondent in 1974. He diagnosed her condition as paranoid schizophrenia in partial remission with a drug addiction problem. She had previously been treated by psychiatrists and had been hospitalized. She had been a patient of Dr. Joseph Lupo, a Tampa psychiatrist, in 1969 when she was 18 years old. His tentative diagnosis of her condition was depression. After several months treatment in the fall of 1969, he admitted her to the psychiatric unit of Tampa General Hospital in January, 1970 based on her stated intention to commit suicide by overdosing on medication. He found her to be manipulative in her personal relationships and seductive in nature. She was discharged from the hospital after six days confinement at the insistence of her father. Dr. Lupo recommended to him at the time that she be continued in psychotherapy because she needed long-term treatment. She had shown signs of a manic depressive disorder. Such a disorder is a form of psychosis, which means loss of touch with reality and disorganization of thoughts, with impaired judgment. Based on psychological testing and observation, Dr. Lupo found that she was inclined to dramatize events in order to get attention, or as a manner of looking for help and being rescued. It was his opinion that she was capable of fabricating a story about having sexual intercourse, or a sexual affair with her treating psychiatrist. At the time that Burton became Respondent's patient, she told him that she had had syphilis and herpes. He treated her for gonorrhea and referred her to a gynecologist. In 1972, she had been hospitalized for several weeks for herpetic vaginitis. In August, 1974, Respondent referred the patient to Dr. Lawrence H. Ricker, a clinical psychologist, for testing and evaluation. He found that she was sexually disturbed with a severe personality disorder involving hysterical personality with underlying paranoid schizophrenic tendencies. His recommendation was a conservative therapeutic approach which considered her to be psychotic with support reality testing in the present rather than exploring the past. He further found that she had a propensity for self dramatization and tended to exaggerate, which exhibited a need for attention. Cassandra Burton was employed with A law firm as a legal secretary in Tampa in the fall of 1974. According to Jennifer Ross, a fellow employee, Respondent telephoned Burton at her office several times a week at which times they discussed when they were next going to see one another. The only time Ross saw Respondent and Burton together was at a dinner party at Ross' boy friend's house. On that occasion, Respondent and Burton arrived separately. Two of Respondent's former patients testified that they had had sexual relations with Burton. In one of these instances, the patient met Burton at Respondent's office and she asked him to take her home. This occurred about December, 1974. The other patient testified that he had observed her in bed with other men on several occasions. On March 5, 1975, Dr. Charles Mastin of Indian Rocks Beach performed an abortion on Burton. Respondent accompanied her to Mastin's office. After the abortion was performed, Burton embraced Respondent and they left the office together. The last charge made to Burton by Respondent's office for professional services was in December, 1974. Although she did not thereafter participate in group therapy sessions, Respondent's office records show that she made approximately 51 telephone calls to Respondent at his office from December, 1974 through April, 1975. On one occasion, she was involved in an automobile accident and came to Respondent's office where he examined her and referred her to an orthopedist. On April 19, 1975, at 11:24 p.m. Deputy Sheriff William Daggett of the Hillsborough County Sheriff's office was dispatched to assist fire and rescue personnel at Burton's residence in the Castellano Apartments. When he arrived at the apartment, rescue personnel were working on Cassandra Burton who was unconscious. Another Deputy Sheriff and Respondent were also present. Daggett proceeded to obtain information concerning the matter from Respondent, who was not under suspicion at the time. Respondent said that Burton had called him at 10:50 p.m., and told him that she had fallen down in the bathroom and was not feeling well. At that point, according to Respondent, the phone went dead as if it had been dropped. He decided to go to her apartment and arrived there about 25 minutes later, after stopping to purchase and eat an ice cream cone. He related that when he arrived at the apartment he found Burton sitting in a chair with the telephone cord around her throat area and that he could not tell whether she was breathing. He then called fire/rescue for assistance and commenced giving her artificial respiration. Respondent told Deputy Sheriff Daggett that although he had been Burton's doctor approximately a year before, he was presently seeing her only socially. A few days after Burton's death, Respondent called Jennifer Ross and said that he wanted to explain what had happened to Sally Burton. He told her that she had died from fibrillation of the heart, which was connected with some diuretic pills that she had been taking. Ross asked him if her death had anything to do with the abortion and he said "no". He asked her not to mention the abortion or his "relationship" with Burton to the police. On June 25, 1975, Respondent was indicted in the Hillsborough County Circuit Court for the premeditated murder of Cassandra (sic) Ann Burton, a/k/a Sally Burton, on April 19, 1976, by strangling her to death by means unknown, contrary to Florida Statutes, 782.04. On June 10, 1981, Respondent was found guilty of the crime of manslaughter and sentenced to imprisonment for fifteen years. Respondent testified at the hearing that he had terminated his physician-patient relationship with Burton in December, 1974 when he determined that she was seriously ill, not functioning well in group therapy, and needed long-term treatment. He recommended that she secure inpatient treatment and suggested that she see Dr. Arturo D. Gonzalez for this purpose. However, she did not wish to do so. On several occasions in 1975, Respondent let Burton borrow his car while he was out of state. He conceded that he had seen her after terminating her as a patient and decided to talk to her on occasions. He testified that he had induced her to attend a Bible class that he had been attending since the early 60's and that he would speak to her briefly once a week before the class. He denied ever having sexual intercourse with her and said that one of the reasons for his terminating her as a patient was due to the fact that she had vaginal herpes, which was always contagious in his opinion, and that he had had to treat several of his male patients who had been involved with her for urethral discharge. He claimed that she would pick up these patients at his office, and take them home with her. Respondent further testified that although he had arranged for Burton's abortion and accompanied her to the doctor's office for that purpose, he had not caused the pregnancy and did not pay for the abortion. Periodically in the past, he had referred patients who became pregnant to physicians in the locality for abortions and maintained an office file listing physicians who performed this procedure. Respondent testified that on the evening of April 19, 1975, he was conducting a group therapy session in his office and finished about 10:50 p.m. He later received several telephone calls from Burton from which he gained the impression that she might have taken some medication and could be physically ill, or that she was trying to get him over to her place to try to seduce him. He asked another patient, Christine Carlton, to accompany him to Burton's apartment to ascertain her condition, but she declined to go with him at that time. Respondent testified that he had asked Burton to call a cab or an ambulance, but she insisted that he come over to her apartment, stating that she was "too dizzy" to drive out herself. He testified that he then proceeded to her apartment after stopping to buy an ice cream cone, since he had not eaten all day. He did not believe there was a genuine emergency because of Burton's history of "rescue" fantasies and, in any event, thought he would have several hours if she had actually taken an overdose of drugs. When he arrived at Burton's apartment, he found her in a chair facing the door, and she did not respond to his greeting. He saw blueness in her legs and took her pulse, and patted her on the face. He picked her up, put her on the couch and checked her corneal reflex, and then started artificial respiration. He called the emergency squad while administering artificial respiration. He testified that when he heard the approaching sirens of the rescue squad, he went out on the apartment landing and saw a man ducking behind the bushes. He also testified that he had seen someone running down the stairs when he first arrived at the apartment. He denied strangling Burton. Dr. Joan Wood, Deputy Chief Medical Examiner for the Sixth Judicial Circuit, testified that, although the medical examiner, Dr. Feegel, had originally determined that Burton's death was caused by strangulation, he modified his opinion in his testimony at Respondent's trial to include the possibility of accidental death. Dr. Wood has reviewed all of the medical reports concerning thee deceased, and is of the opinion that the pathological studies and reports are insufficient upon which to determine the cause of death within a reasonable medical certainty. As a result of the foregoing findings, the following additional findings are made: Insufficient competent evidence was presented to establish that Respondent had a sexual relationship with Cassandra Burton and that he caused her pregnancy. Although the evidence shows that Respondent's association with Burton was of such a nature as to greatly exceed the bounds of a normal psychiatrist-patient .relationship, it was generally in keeping with his compulsive personality which, as described by Dr. Warren, the examining psychiatrist, involved a tendency to try and please women, particularly hysterical ones. Other expert and lay testimony showed him to be an individual who became excessively involved with his patients. At the time of the death of Cassandra "Sally" Burton on April 19, 1975, for which Respondent was thereafter found guilty of manslaughter, Respondent was acting in the role of a psychiatrist or physician, as evidenced by the deceased's request to him for medical assistance and his attempted response thereto in such capacity. (Testimony of Respondent, Burdette, Freeman, Daggett, Ross, Adams, Wood, Silverman, Jones, Carlton, Mezrah, Thomas, Gardner, Ricker, Petitioner's Exhibits 12-16, 21, Respondent's Exhibits 4-5, 8). It was the practice of Respondent to have his secretary, Jean Jones, prepare his yearly applications to the Drug Enforcement Administration, Department of Justice, for renewal of his registration to dispense controlled substances pursuant to Federal law and regulation. She customarily prepared the application which was signed by Respondent and, in years prior to 1980, he had obtained registration to dispense Schedule II through V controlled substances. His application for renewal of registration which expired on November 30, 1979 was prepared by a different secretary due to Jones' absence, and the application signed by Respondent inadvertently reflected a request for renewal of authority to dispense only Schedule III and IV substances. Respondent was unaware that his registration renewal did not include authority to dispense Schedule II drugs. During the period March 6 through October 31, 1980, Respondent prescribed Class II controlled substances without proper registration to Lileen Dunn for Mepergan Fortis and Percodan, Anne Pizzo for Dexedrine, William Gray for Ritalin, Nick Douzanis for Desoxyn, Patty Crist for Amytal, Elio Alvarez, Jr. for Quaaludes, John Adams for Dexedrine, Harold Wyatt for Quaaludes, Karen Berrian and Janet Anifant for Dexamyl. On October 2, 1980, Respondent prescribed Noctec for himself which was filled at a Tampa pharmacy. Noctec is a Schedule IV controlled substance. Thomas Rowley had taken his wife to Respondent for treatment in the summer of 1980 and such treatment continued into December of that year. Although Respondent had provided Rowley with some samples of Noctec for his wife, and prescribed medicine for her in Rowley's name to prevent Mrs. Rowley from taking an overdose of medicine, Rowley had never received or obtained Noctec on a prescription which named Respondent as the patient. Respondent's registration to dispense controlled substances has included Schedule II drugs for 1981 and 1982. (Testimony of Jones, Dodd, Paige, Rowley, Petitioner's Exhibits 1-3, Respondents Exhibits 2, 7). Respondent's driver's license was suspended for driving infractions in October, 1976 and reinstated in June, 1978. After Respondent returned a car he had borrowed from a patient, Pierce Brereton found a Florida driver's license in the glove compartment in the name off Albert Bela Klein, but bearing a photograph of Respondent. Kein had died on June 24, 1972, but records of the Department of Highway Safety and Motor Vehicles show that three speeding Violations were charged against his license in 1977-78. (Testimony of Brereton, Petitioner's Exhibits 9-11) Pursuant to an Order issued by the Secretary, Department of Professional Regulation, on June 11, 1981, under subsection 458.331(1)(s), Florida Statutes, Respondent submitted to a psychiatric evaluation by Dr. George L Warren of Clearwater, Florida during the period July 31--August; 17, 1931. In addition, psychological testing of Respondent was performed by Dr. Richard N. Fran on August 7, 1981 As a result of the examination and testing, Dr. Warren concluded that Respondent suffered from a mild degree of impairment, most likely due to alcohol abuse which had caused some degree of brain damage, and a compulsive personality disorder. However, he did not feel that Respondent was suffering from a sufficient mental or emotional impairment which would adversely impact on his ability to practice medicine with reasonable skill and safety to patients. When he testified at the hearing, Dr. Warren disclosed that Respondent had contacted him the night before and disclosed that he had "borrowed" a driver's license during the pendency of criminal charges against him. Respondent had not disclosed this information to Warren during the previous psychiatric examination Dr. Warren testified on direct examination that the possession and use of the false driver's license by Respondent constituted antisocial behavior and than as a result of Respondent's disclosure, he would modify his opinion to find that Respondent was not able to practice medicine with skill and safety to patients. However, upon cross-examination, he stated that that fact alone would not change his opinion, but that he would have to reevaluate the case based on the factual correctness of matters contained in various hypothetical questions posed to him which were based upon the other charges in the Administrative Complaints. (Testimony of Warren, Petitioner's Exhibit 22, Respondent's Exhibit 1). Respondent has been treated by a psychiatrist during the past year and, in his opinion, Respondent is a highly intelligent, well qualified psychiatrist who is competent to practice his profession. Additionally, several psychiatrists who have known Respondent in the past are of the same opinion. (Testimony of Afield, Gardner, Silverman, Thomas, Respondent's Exhibit 9).
Recommendation That Petitioner Board of Medical Examiners revoke the license of Respondent Louis J. Tsavaris to practice medicine pursuant to Chapter 458, Florida Statutes. DONE and ENTERED this 6th day of August, 1982, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of August, 1982. COPIES FURNISHED: Deborah J. Miller, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Grover C. Freeman, Esquire 4600 West Cypress, Suite 410 Tampa, Florida 33607 William S. Lancaster, Esquire 1715 Tampa Street Tampa, Florida 33602 Frank Ragano, Esquire 620 East Twiggs Street Tampa, Florida 33602 Dorothy Faircloth Executive Director Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32301 Michael Schwartz, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue for determination is whether Petitioner's Medicaid provider number should be cancelled.
Findings Of Fact I.M.P.A.C.T. Institute, Inc. (Petitioner) provides primarily counseling services to residents of Broward County and the surrounding areas. The majority of the residents who receive Petitioner's services are low income, have language barriers and have little education. Petitioner provides a valuable and important service to the community that it serves. At all times material hereto, Petitioner was licensed by the Department of Health and Rehabilitative Services in accordance with Chapter 397, Florida Statutes. Petitioner was issued its regular license on December 29, 1994. At all times material hereto, Petitioner was enrolled as a community mental health provider in the Florida Medicaid program pursuant to Subsection 409.906(8), Florida Statutes. Petitioner has been enrolled in the Medicaid program for approximately three years. At all times material hereto, Petitioner has been issued a Medicaid provider number which has been continuously renewed. Petitioner is currently receiving Medicaid reimbursement for community mental health services pursuant to Subsection 409.906(8), Florida Statutes. On June 10, 1994, Petitioner executed a Medicaid Provider Agreement (Agreement). The Agreement provides in pertinent part: The provider and the Department [Depart- ment of Health and Rehabilitative Services] agree to abide by the Florida Administrative Code, Florida Statutes, policies, procedures, manuals of the Florida Medicaid Program and Federal laws and regulations. The agreement may be terminated upon thirty days written notice by either party. The Department may terminate this agreement in accordance with Chapter 120, F.S. Respondent has a handbook which describes, among other things, the community mental health services program and provider participation requirements. Effective December 1995, the handbook provides in pertinent part: Community mental health services are governed . . . through the authority of Chapter 409.906(8), Florida Statutes. * * * To be eligible to be enrolled in Medicaid, a provider must have a current contract pursuant to the provisions of Chapter 394, Florida Statutes, for the provision of community mental health services; and, if applicable, a regular (i.e., not provisional or interim) license as an alcohol prevention and treatment or drug abuse treatment and prevention program from the district Depart- ment of Health and Rehabilitative Services (HRS), Alcohol, Drug Abuse and Mental Health (ADM) program office. Petitioner does not have a contract with the Department of Health and Rehabilitative Services, Alcohol, Drug Abuse and Mental Health (ADM) program office. Petitioner has been attempting to obtain a contract with the Health and Rehabilitative Services ADM program office but has been unable to do so because the Health and Rehabilitative Services ADM office has had no money to fund such a contract. Respondent is cancelling Petitioner's Medicaid provider number because Petitioner does not have a contract with the Health and Rehabilitative Services ADM program office.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order terminating I.M.P.A.C.T. Institute, Inc.'s Medicaid provider contract and cancelling its Medicaid provider number. DONE AND ENTERED on this 8th day of October, 1996, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 8th day of October, 1996. APPENDIX The following rulings are made on the parties' proposed findings of fact: Petitioner Partially accepted in finding of fact 1. Partially accepted in finding of fact 1. Partially accepted in finding of fact 4. Rejected as being argument, or a conclusion of law. Rejected as being argument, or a conclusion of law. Rejected as being argument, or a conclusion of law. Partially accepted in findings of fact 5, 8, and 9. Rejected as being subordinate, irrelevant, or unnecessary. Respondent Partially accepted in finding of fact 2. Partially accepted in finding of fact 3. Partially accepted in finding of fact 6. Partially accepted in finding of fact 5. Partially accepted in finding of fact 7. Partially accepted in finding of fact 8. NOTE: Where a proposed finding has been partially accepted, the remainder has been rejected as being subordinate, irrelevant, unnecessary, cumulative, not supported by the evidence, argument, or a conclusion of law. COPIES FURNISHED: Jason H. Clark, Esquire Post Office Box 17486 West Palm Beach, Florida 33416 Roger R. Maas, Esquire Agency for Health Care Administration 2727 Mahan Drive, Ft. Knox No. 3 Tallahassee, Florida 32308-5403 Sam Power, Agency Clerk Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308-5403 Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308-5403
Findings Of Fact Incorporated in Finding of Fact 1. Rejected as a Conclusion of Law and not a Finding of Fact. 3-4. Incorporated in Finding of Facts 2-4. Incorporated in Finding of Facts 9-10. Incorporated in Finding of Facts 5-6. Incorporated in Finding of Fact 7. Incorporated in Finding of Fact 11. Incorporated in Finding of Fact 12. Rejected as argument and not a Finding of Fact. COPIES FURNISHED: Stanley Blanding, #036207 Liz Cloud, Chief Mark Dingle, #073356 Bureau of Administrative Code William Roberts, #908378 1802 The Capitol Virgil Page, #073743 Tallahassee, Florida 32301 Union Correctional Institution P. O. Box 221 Raiford, Florida 32803 William Joel Keel, #060263 Carroll Webb, Exec. Director Union Correctional Institution Administrative Procedures P. O. Box 221 Committee Raiford, Florida 32083 120 Holland Building Tallahassee, Florida 32301 Julia Forrester, Esquire Assistant Attorney General Department of Legal Affairs The Capitol Tallahassee, Florida 32301 Louis A. Vargas, Esquire General Counsel Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32301 Louie Wainwright Secretary Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32301
