Findings Of Fact In 1993, the US Health Care Financing Administration gave Respondent approval to design and implement a pilot program for the delivery of mental health services in part of Florida. The pilot program is limited to Medicaid Area 6, which consists of Hardee, Highlands, Hillsborough, Manatee, and Polk counties. The purpose of the pilot program is to change the way in which the State of Florida pays for mental health services under the Medicaid program. At present, the State makes "fee-for- service" payments based on predetermined fees for defined services. RFP, 1.1 KK. Under the new method, the State will make "capitation" payments consisting of a monthly fee paid in advance to the contractor for each enrolled Medicaid recipient, regardless whether the enrollee receives the services during the payment period. RFP, 1.1.H. On November 23, 1994, Respondent issued Request for Proposals 9501 (RFP). The purpose of RFP 9501 is to procure a contract with a "single, comprehensive mental health care provider on a prepaid, capitated basis, to provide mental health benefits to Medicaid recipients who are residents of Medicaid Area 6 . . .." RFP, 1.4. The second paragraph of RFP 1.4 identifies four goals of the procurement: that the procurement proceed in a timely manner, (2) that the . . . RFP . . . encourages free and open competition, (3) that the procurement effort and resulting new contract operations be completed in a timely manner without disruption of service to Medicaid clients, and (4) that the procure- ment result in a single contractor for Area 6 with sufficient resources to provide services to all AFDC related and SSI Without Medicare Medicaid eligibles in Area 6. Section 2.2 requires that the contractor provide "[i]npatient hospital care for psychiatric conditions," "[o]utpatient hospital care for psychiatric conditions," "[p]sychiatric physician services," "[c]ommunity mental health care," "Mental Health Targeted Case Management," and "Mental Health Intensive Case Management." Section 2.3 defines the six categories of services identified in the preceding paragraph. Referring to "Community mental health care" as "Community Mental Health Services," Section 2.3 states: Community Mental Health Services Community Mental Health Services are rehabil- itative services which are psychiatric in nature, rendered or recommended by a psychia- trist; or medical in nature, rendered or recommended by a psychiatrist or other physician. Such services must be provided in accordance with the policy and service provision specified in the Community Mental Health Services Provider Handbook. The term "Community Mental Health Services" is not intended to suggest that the following services must be provided by state funded "Community Mental Health Centers" or to preclude state funded "Community Mental Health Centers" from providing these services: There are eight categories of mental health care services provided under community mental health: Treatment planning and review; Evaluation and testing services; Counseling, therapy and treatment services provided by a psychiatrist or physician; Counseling, therapy and treatment services provided by a direct service mental health care provider; Rehabilitative services; Children's mental health services; Specialized therapeutic foster care, Level 1 and 2; and Day treatment programs. Community mental health services for children in specialized therapeutic foster care and resi- dential treatment will be provided by HRS District 6 Alcohol, Drug Abuse and Mental Health Program Office to the same degree as in the past. Services are limited to those covered services provided by or under the recommendation of a psychiatrist or physician and related to a plan of care provided or authorized by a psychiatrist or physician, as appropriate, based on the patient's diagnosis. Targeted Case Management The contractor shall adhere to the requirements of the Medicaid Case Management Services Provider Handbook, but will not be required to seek certifications from the HRS Districts' Alcohol, Drug Abuse and Mental Health Program Office in regard to clients, agency designation, or mental health care case manager qualifications. Case manager training materials will be made available through the agency for reproduction by the contractor. Intensive Case Management This is a new mandatory service which is intended to provide intensive, team case management to highly recidivistic persons who have severe and persistent mental illness. Section 2.5 requires that the contractor "adhere to the following minimum staffing, availability, and access standards": The contractor shall provide access to medically necessary mental health care (with the exceptions noted in section 2.4 B.) The contractor shall make available and accessible facilities, service locations, and service sites and personnel sufficient to provide the covered services (specifically, non-hospital outpatient, emergency and assessment services) throughout the geographic area, within thirty minutes typical travel time by public or private transportation of all enrolled recipients. (The typical travel time standard does not apply to waiting time for public transportation--it applies only to actual time in transit.) The contractor must allow enrollees to choose one of the capitated services, as provided in Section 5.1 F.1., when the plan offers another service, not reimbursed under the contract, as a downward substitution. The maximum amount of time between an enrollee's request for mental health services and the first point of service shall be as follows: For emergency mental health services as defined in section 1.1 BB., service shall be immediate. For persons initially perceived to need emergency mental health services, but upon assess- ment do not meet the criteria for emergency care, they are deemed to require crisis support and services must be provided within twenty-three hours. For routine outpatient intake, assessment shall be offered within seven calendar days. Follow-up service shall be offered within fourteen calendar days after assessment. Minimum staffing standards shall be as follows, and failure to adhere to these staffing standards, or the staffing standards indicated in the winning proposal, whichever are greater, may result in termination of the contract (if the contractor's "staff" person does not fill one of the "key staff" positions listed on page 81, the staff persons may be a subcontractor.): * * * The contractor's outpatient staff shall include at least one FTE direct service mental health care provider per 1,500 prepaid members. The Agency expects the contractor's staffing pattern for direct service providers to reflect the ethnic and racial composition of the community. The contractor's array of direct service mental health care providers for adults and children must include providers that are licensed or eligible for licensure, and demonstrate two years of clinical experience in the following specialty areas: Adoption, Separation and loss, Victims and perpetrators of sexual abuse, Victims and perpetrators of physical abuse, Court ordered evaluations, and Expert witness testimony. Mental health care case managers shall not be counted as direct service mental health care providers. The contractor shall provide Spanish speaking and Spanish literate direct service providers at each service location at which there are Spanish speaking enrollees. The contractor shall provide staff approp- riately trained and experienced to provide psychological testing. The contractor shall provide staff approp- riately trained and experienced to provide rehabilitation and support services to persons with severe and persistent mental illness. For all persons meeting the criteria for case management as specified in the Medicaid Case Management Provider Handbook, the contractor shall adhere to the staffing ratio of at least 1 FTE mental health care case manager per 20 children, and at least 1 FTE mental health care case manager per 40 adults. Direct service mental health care providers shall not be counted as mental health care case managers. * * * Section 2.10 provides, in part: The contractor shall be responsible for the coordination and management of mental health care and continuity of care for all enrolled Medicaid recipients through the following minimum functions: A. Minimizing disruption to the enrollee as a result of any change in service providers or mental health care case manager occurring as a result of the awarding of this contract. An offeror may not propose rates exceeding Medicaid's upper payment limit, which "is that amount which would have been paid, on an aggregate basis, by Medicaid under fee-for-service for the same services to a demographically similar population of recipients." 4.11. Section 1.1 TTT defines "Upper Payment Limit" similarly: "The maximum amount Medicaid will pay on a capitated basis for any group of services, based upon fee-for- service Medicaid expenditures for those same services." Section 4.11 sets the range of payment rates at 92-98 percent of the upper payment limit. Each offeror is required to propose a specific payment percentage within the range. Section 4.17 allows offerors to propose a risk corridor of up to 16 percentage points plus and minus the proposed range. The corridor must be equal above and below the capitation rate. The RFP illustrates the risk corridor by applying an 8 point corridor to a 95 percent capitation rate. In this case, the contractor absorbs any plan costs up to 4 percent over the actual payments made to the plan by Respondent or retains any excess plan payments up to 4 percent over the actual costs. Beyond the corridor, the contractor and Respondent share equally in the costs or savings, subject to Respondent's upper payment limit. In no event, however, shall the contractor be entitled to payment from Respondent for "start- up" or "phase-down" costs. Section 4.18 addresses subcontractors: The contractor is fully responsible for all work performed under the contract resulting from the RFP. The contractor may, with the consent of the agency, enter into written subcontract(s) for performance of certain of its functions under the contract. The contractor must have subcontracts with all administrative and service providers who are not salaried employees of the plan prior to the commencement of services under this contract. The contractor shall abide by the requirements of Section 1128A(b) of the Social Security Act prohibiting HMOs and other such providers from making payments directly or indirectly to a physician or other provider as an inducement to reduce or limit services provided to Medicaid enrollees. The contractor must submit signed subcontracts, for a complete provider network in order to obtain agency approval for operation in an area, within sixty days of the execution of this contract, for each proposed subcontracted service provider. Any additional subcontracts must be submitted to the agency twenty days prior to the subcontract effective date. Subcontracts must be approved in writing by the agency's Technical Project Manager prior to the effective date of any subcontract. No subcontract which the contractor enters into with respect to performance under the contract resulting from the RFP shall in any way relieve the contractor of any responsibility for performance of its duties. Amendments to subcontracts must be approved by the agency before taking effect. The contractor shall notify the agency in writing prior to termination of approved subcontracts. The contractor will agree to make payment to all subcontractors within 35 days of receipt of all invoices properly documented and submitted by the subcontractor to the plan. All subcontracts executed by the contractor under the resulting contract must meet the following requirements and be approved by the agency in advance of implementation. All subcontracts must adhere to the following requirements: Be in writing. Specify the functions of the subcontractor. Identify the population covered by the subcontract. Specify the amount, duration and scope of services to be provided by the subcontractor, including a requirement that the subcontractor continue to provide services through any post- insolvency period. Provide that the agency and DHHS may evaluate through inspection or other means the quality, appropriateness, and timeliness of services performed. Specify that the subcontractor has read and agreed to the subcontract and the service provision requirements under section 2 of RFP, for services to be provided under the subcontract, and to the contractor's admission and retention criteria for the services the subcontractor will provide as indicated in the subcontractor's response to section 5.1 F3.b,(5). Provide for inspections of any record pertinent to the contract by the agency and DHHS. Specify procedures and criteria for extension and renegotiation. Provide for prompt submission of information needed to make payment. Require an adequate record system be maintained for recording services, charges, dates and all other commonly accepted information elements for services rendered to recipients under the contract. Require that financial, administrative and medical records be maintained for a period of not less than five years from the close of the contract and retained further if the records are under review or audit until the review or audit is complete. Prior approval for the disposition of records must be requested and approved by the contractor if the subcontract is continuous. Require safeguarding of information about recipients according to 42 CFR, Part 431, Subpart F. Require an exculpatory clause, which survives the termination of the subcontract including breach of subcontract due to insolvency, that assures that recipients or the agency may not be held liable for any debts of the subcontractor. Provide for the monitoring of services rendered to recipients sponsored by the contractor. Specify the procedures, criteria and requirements for termination of the subcontract. Provide for the participation in any internal and external quality assurance, utilization review, peer review, and grievance procedures established by the contractor. Make full disclosure of the method and amount of compensation or other consideration to be received from the contractor. Provide for submission of all reports and clinical information required by the contractor. Make provisions for a waiver of terms of the subcontract, if appropriate. Contain no provision which provides incentive, monetary or otherwise, for the withholding of medically necessary care. Require adherence to the Medicaid policies expressed in applicable Medicaid provider handbooks. Require that the subcontractor secure and maintain during the life of the subcontract worker's compensation insurance for all of its employees connected with the work under this contract unless such employees are covered by the protection afforded by the provider. Such insurance shall comply with Florida's Workers' Compensation Law; and Contain a clause indemnifying, defending and holding the Agency and the plan members harmless from costs or expense, including court costs and reasonable attorney fees to the extent proximately caused by an negligent act or other wrongful conduct arising from the subcontract agreement. This clause must survive the termination of the subcontract, including breach due to insolvency. The contractor shall give the agency immediate notification in writing by certified mail of any action or suit filed and prompt notice of any claim made against the contractor by any subcontractor or vendor which in the opinion of the contractor may result in litigation related in any way to the contract with the agency. In the event of the filing of a petition in bankruptcy by or against a principal subcontractor or the insolvency of said subcontractor, the contractor shall immediately advise the agency. The contractor shall assure that all tasks related to the subcontract are performed in accordance with the terms of the contract. The contractor shall identify any aspect of service that may be further subcontracted by the subcon- tractor. Subcontractors shall not be considered agents of the agency. For evaluation purposes, the RFP divides proposals into two parts: technical and rate, including any rate corridor. The six categories under the technical part, with point values in parentheses, are: Management Summary (0 points), Organization and Corporate Capabilities (100 points), Proposed Staffing Pattern and Licensure of Staff and Facilities (250 points), Operational Functions (400 points), Mental Health Care Service Delivery (400 points), and Transition Workplan (100 points). RFP, 6.1. Section 5.1.C describes the 100-point Organization and Corporate Capabilities as follows: The proposer shall provide in this tab a descrip- tion of its organizational and corporate capabi- lities. The purpose of this section is to provide the agency with a basis for determining the contractor's, and its subcontractors', financial and technical capability for undertaking a project of this size. For the purpose of this tab, the term proposer shall refer to both the contractor and its major subcontractors. It does not refer to the plan's "parent company" unless specifically indicated. Section 5.1 D states the elements of the 250-point Proposed Staffing Pattern and Licensure of Staff and Facilities. Section 5.1 D.3 requires the offeror to disclose "actual and proposed" FTE professionals, including psychiatrists, case managers, psychologists, nurses, and social workers. Section 5.1D.4 requires the offeror to explain how the plan will allocate staff to meet various demands, such as for adoption, sexual and physical abuse counseling, and psychological testing of children. Section 5.1 D.5 requires the proposal to: Describe how the plan will ensure that it has the staff resources appropriately trained and experienced to provide rehabilitative and support services to low income adults with severe and persistent mental illness and, under separate heading, to children with severe and persistent mental illness. Denote the number and percent of total FTEs which will be filled by persons with this type of experience and who will be providing these types of services. Explain the contractor's rationale for the staffing levels indicated and provide a brief, one or two line, description of the training and exper- ience of such persons who will provide these services under the plan. Section 5.1.E describes the elements of the 400-point Operational Functions, in part, as follows: Within this tab, the proposer shall explicitly address its operational capacity to serve Medicaid recipients, and its previous history serving the Medicaid and other low income populations. Separately, the proposer shall address the member services the plan will offer, grievance procedures, quality assurance procedures, the contractor's proposed reporting systems, and the contractor's proposed handling of subcontracts. Service Area of Proposed Plan 42 CFR 434.36 Describe, for each county, how the proposer will meet throughout the lifetime of the contract the 30 minute typical travel time requirement specified in section 2.5 A.1. Describe, for each county, how the proposer will meet throughout the lifetime of the contract the 30 minute typical travel time requirement for child psychiatrists specified in Section 2.5 B.2. Describe, for each county, how the proposer will meet throughout the lifetime of the contract the 30 minute typical travel time requirement for adult psychiatrists specified in Section 2.5 B.1. * * * Section 5.1.F describes the 400-point Mental Health Care Service Delivery category. Section 5.1 F states, in relevant part: This section shall include a detailed discussion of the proposer's approach to providing mental health care. The proposer must be able to document a demonstrated ability to provide a comprehensive range of appropriate services for both children and adults who experience impairments ranging from mild to severe and persistent mental illness. Plans must provide services up to the limits specified by the RFP. They are encouraged to exceed these limits. However, in no instance may any service's limitations be more restrictive than those specified in the Florida Medicaid fee- for-service program. The plan cannot require payments from recipients for any mandatory services provided under this contract. Summary of Services * * * The following is a summary list of the services which may be provided . . . * * * Optional Services Crisis Stabilization Unit * * * z. Other Services (List) * * * Care Coordination 42 CFR 434.52; 10C-7.0524(16), F.A.C. Attach the plan's written protocol describing the plan's care coordination system, which should include the plan's approach to care coordination, utilization review, and assuring continuity of care, such as, verifying medical necessity, service planning, channeling to appropriate levels of treatment, and develop- ment of treatment alternatives when effective, less intensive services are unavailable. The protocol should also address the following questions: * * * 3. Indicate how the contractor will establish services in such a way as to minimize disruption of services, particularly to high risk populations currently served by the department, for children and, separately, for adults. * * * Section 6.3 describes the criteria for evaluating proposals. For Proposed Staffing Pattern and Licensure of Staff and Facilities, the evaluation criteria include, at 6.3 B.3.c: The ability of the proposer to ensure it has, and will continue to have, the resources necessary to provide mental health rehabilitation and support to children who are in the care and custody of the state or who have special needs, such as children who have been adopted or have been physically or sexually abused. About a year ago, Respondent issued RFP 9405, which also sought to procure mental health services on a capitated basis for Medicaid Area 6. Respondent received four proposals, which contained numerous deficiencies. Respondent later withdrew RFP 9405 for revisions to encourage more competition. Concerns over competition involve the role of Community Mental Health Centers (CMHC) in the procurement. CMHCs are publicly funded, not-for-profit entities that traditionally have provided five types of services: emergency, outpatient, day/night, inpatient, and prevention education. CMHCs now also operate crisis stabilization units and supply case management services, as well as specialized children's services, services for aged persons with severe and persistent mental illness, and services for persons with alcohol or drug dependencies. The RFP calls for a wide range of mental health care services, only part of which are community mental health services or other services presently provided by CMHCs. However, CMHCs constitute the only available network of existing providers of community mental health services to Medicaid clients in Medicaid Area 6. Medicaid payments account for about 30 percent of the revenue of Area 6 CMHCs. In late 1992, six CMHCs in Area 6 formed Florida Behavioral Health, Inc. in response to competition from one or more other provider networks, such as Charter. The competitive network of six CMHCs consisted of Manatee Glens Corp., Mental Health Care, Inc., Northside Mental Health Hospital, Peace River Center for Personal Development, Inc., Winter Haven Hospital, and Mental Health Services. Although the six CMHCs are not all of the CMHCs in Area 6, they provide nearly all of the community mental health services to Medicaid clients in Area 6. By early 1993, Florida Behavioral Health, Inc. formed Florida Health Partnership with Options Mental Health, Inc., which is a managed-care provider owned by First Hospital Corporation--a behavioral health management company. With the assistance of Florida Health Partnership, Options Mental Health, Inc. submitted a proposal in response to RFP 9405. An oral or written agreement between Florida Behavioral Health, Inc. and Options Mental Health, Inc. prohibited the six CMHCs from assisting any entity but Options Mental Health, Inc. in responding to RFP 9405. This agreement continues to prohibit the six CMHCs from assisting any entity but Options Mental Health, Inc. in responding to the RFP. The six CMHCs have shared with Options Mental Health, Inc. cost and utilization information. The importance of the unpublished cost information is unclear, and Petitioner has not yet made a public records request to obtain this information. The same is true of unpublished utilization information, which includes information on waiting lists for community mental health services. Any delay in providing community mental health services would have a bearing on the projected demand and thus the cost of a capitated plan. After withdrawing RFP 9405, Respondent revisited the requirement that offerors propose an existing network of providers. In an effort to encourage competition, Respondent deleted a requirement in RFP 9405 that proposals contain existing provider networks. Respondent substituted a requirement that proposals describe provider networks generally, without necessarily including names of subcontractors. Petitioner did not prove any fraudulent, illegal, arbitrary, or dishonest act by Respondent. The main thrust of Petitioner's case is that the effect of the RFP is illegal or arbitrary. Petitioner asserts that the RFP requires a sole source provider or, at minimum, precludes free and open competition. Petitioner argues that the RFP illegally and arbitrarily favors offerors of CMHCs, in partnership with CMHCs, or with subcontracts with CMHCs. Through testimony and argument, Petitioner asserts that various provisions of the RFP either exacerbate or fail to ameliorate the advantages enjoyed by CMHCs, especially due to RFP requirements of implementation of the new provider network in 60 days and with minimal disruption to Medicaid clients. RFP 1.4(2) encourages open and free competition. RFP 2.3 D disclaims any intent that only CMHCs may supply community mental health services. Petitioner's chief witness, Dr. Ronald Mihalick, testified that RFP 2.3 D favors CMHCs because state regulations have designated them the sole provider of community mental health services and government grants have funded their capital expenditures. Neither Dr. Mihalick, Petitioner's other witness, nor Petitioner's counsel has suggested a practical means by which to eliminate this advantage of CMHCs, which cannot, by executive or legislative fiat, be stripped of their buildings, equipment, or experienced staffs, nor of the advantages that may accrue to them by virtue of such assets. It would be counterproductive to eliminate CMHCs from direct or indirect participation in the subject procurement. Nor is Respondent required, if it were legally able, to assign to CMHCs the status of universal providers in order to eliminate illegality or arbitrariness from the RFP. The RFP seeks a broad range of mental health services, of which a substantial part are community mental health services. RFP 2.3 D represents a simple description of community mental health services and expressly negates the inference that only CMHCs may provide such services. RFP 2.3 E and F describes two of the five categories of mental health services: targeted case management and intensive case management, respectively. Intensive case management is a new service, and nothing suggests that Area 6 CMHCs have any direct experience that would give them an advantage in providing this new service, Targeted case management is an existing service provided by CMHCs. There is some doubt whether the RFP provides detailed cost information, including information about targeted case management. However, Petitioner has never made a public records request for such information from any of the CMHCs or Respondent. In any event, Petitioner has hardly presented sufficient evidence regarding targeted case management that the inclusion of such a service in the RFP is arbitrary or illegal. RFP 2.5 prescribes standards for minimum staffing, availability, and access. The minimum staffing standards do not require that existing service providers supply the specified services. For instance, "direct service mental health care providers" must be "licensed or eligible for licensure," as provided in RFP 2.5 B.3.a. Petitioner's objection is that the RFP expresses staffing standards in accordance with Medicaid guidelines, under which the CMHCs are already operating. This objection is puzzling because the procurement is for Medicaid services. In any event, the presence of such a provision does not render the RFP illegal or arbitrary for the reasons already stated. RFP 2.5 B.4 requires staffing ratios of one fulltime equivalency (FTE) per 20 mental health care case managers for children and one FTE per 40 mental health care case managers for adults. Again, though, the RFP does not require that such case managers must be currently employed by a CMHC or even currently providing such services. Petitioner legitimately objects to specifications expressed in terms of FTEs when applied to non-administrative services. The use of FTEs applies to fulltime employees, not to individual therapists who may see Medicaid clients on an occasional basis. The requirement that non-administrative services be expressed in FTEs unduly emphasizes process over product or outcome and is inconsistent with the spirit of the RFP. However, the use of FTEs in RFP 2.5 B.4 does not rise to the level of arbitrariness or illegality. As Respondent's chief witness, Marilyn Reeves, testified, an offeror may convert individual therapists to FTEs, even though the contractor may bear the risk of a faulty conversion formula. RFP 2.10 requires that the contractor implement the new capitated plan with minimal disruption to Medicaid clients, whose mental conditions may worsen from such disruption. Petitioner does not challenge this sensible provision. Petitioner instead argues that other pro-CMHC provisions preclude the implementation of a new plan with minimal disruption. Petitioner has failed to prove that the pro-CMHC provisions, except for 4.18 as discussed below, necessitate more than minimal disruption during the transition. RFP 4.17 provides that Respondent shall not pay the contractor's start-up or phase-down costs. Petitioner's objection is that government grants have paid for the capital expenditures of the CMHCs. For the reasons discussed in connection with RFP 2.3 D, Petitioner has failed to prove how this provision is arbitrary or illegal. RFP 5.1 D assigns 250 points for the proposed staffing pattern and requires the offeror to disclose "actual and proposed" FTE professionals, such as psychiatrists, case managers, and social workers. An offeror that has already identified its personnel may be able to provide a more detailed description and earn more points than another offeror that has yet to find its subcontractors. Likewise, RFP 5.1 D.5 requires a discussion of FTEs, although an offeror with as yet unidentified subcontractors probably can satisfy this section with a more generic discussion and not lose points. In any event, to the extent that the specification in terms of FTEs favors CMHCs, such a provision is not so onerous or unnecessary as to be arbitrary or illegal, as discussed in connection with 2.5 B.4. RFP 5.1 E assigns 400 points for operational functions and requires the offeror to "explicitly address its operational capacity to serve Medicaid recipients, and its previous history serving the Medicaid and other low income populations." Unlike RFP 5.1 C, which requires a proposal to address the contractor and its "major subcontractors," 5.1 E does not mention subcontractors, so this provision favors CMHCs even less than the other provisions of 5 and 6. Perhaps for this reason, neither Petitioner's witnesses nor Petitioner's proposed recommended order addressed RFP 5.1 E. RFP 5.1 F requires an offeror to provide a "detailed discussion," in which it shall "document a demonstrated ability to provide a comprehensive range of appropriate services . . .." An offeror with as yet unidentified subcontractors will likely be unable to supply nearly as much detail as an offeror with subcontractors already in place, but this provision would, if challenged, not be deemed arbitrary or illegal. However, Petitioner challenges only RFP 5.1 F.1 (Optional Services) and 5.1 F.4.a.3. Section 5.1 F.4.a.3 reiterates the requirement that the new capitated plan be implemented so as to "minimize disruption of services." As noted above, Petitioner of course does not object to this requirement, but uses it to show how other provisions are arbitrary or illegal. Petitioner objects to the portion of 5.1 F.1 identifying crisis stabilization units as an Optional Service. Although only CMHCs are licensed to operate crisis stabilization units, the same services are available from other sources, although often not as economically. Moreover, the crisis stabilization unit is only an Optional Service, which Respondent mentioned only for illustrative purposes. The last-cited option, "Other Services (List)," encourages offerors to devise creative options that may not involve such traditional providers as crisis stabilization units. RFP 6.3 B.3.c requires the offeror to ensure that "it has, and will continue to have, the resources necessary to provide mental health rehabilitation and support . . .." Satisfaction of the criteria of 6.3 B, like 5.1 C, D, and F, is easier for CMHCs and harder for contractors with as yet unidentified subcontractors. However, the advantage conferred upon CMHCs is not so great as to render 6.3 B arbitrary or illegal. To varying degrees, RFP 5.1 D.5, E.1, and F.1 (Optional Services) and 6.3 B.3.c prefer CMHCs or offerors affiliated with CMHCs. These provisions potentially conflict with the RFP provisions encouraging free and open competition and prohibiting more than minimal disruptions in service. The potential conflicts are partially attenuated by the ability of an offeror, prior to submitting a proposal, to identify subcontractors that may provide similar services to non-Medicaid clients or provide similar services to Medicaid clients in other areas of Florida or other states. RFP 5.1 D.5, E.1, and F.1 (Optional Services) and 6.3B impose qualitative standards upon the contractor and any subcontractors, whose employees have direct contact with the Medicaid clients. Non-CMHC offerors may nonetheless be able to identify, at the proposal stage, their subcontractors so as to earn the maximum points in these categories. For instance, offerors may find non-CMHC subcontractors providing community mental health services to non- Medicaid clients or to Medicaid clients elsewhere in Florida or the United States. With greater difficulty, non-CMHC offerors with as yet unidentified subcontractors may be able to project, at the proposal stage, features of their subcontractors. They may not be able to score as well as CMHCs and other offerors with already identified networks of community mental health service providers. However, to the extent that non-CMHCs are disadvantaged by these provisions, Petitioner has not shown that the inclusion of these provisions is arbitrary or illegal. These provisions ensure the delivery of quality mental health services. As likely as not, Petitioner has included these provisions after careful consideration of the benefits of further competitiveness and the costs of further limitations upon the participation of CMHCs. The final provision challenged by Petitioner is RFP 4.18, which acknowledges that the contractor may not itself provide the mental health services, but may contract with subcontractors for the provision of these services. Requiring that the contractor have subcontracts prior to the commencement of services under the new capitated plan, Section 4.18 adds that the contractor must submit for Respondent's written approval: signed subcontracts, for a complete provider network in order to obtain agency approval for operation in an area, within sixty days of the execution of this contract, for each proposed subcontracted service provider. Petitioner's challenge to RFP 2.3 D, E, and F; 2.5 A and B.3 and 4; and 4.17 fails because these provisions confer upon CMHCs an insignificant advantage, an advantage upon that could not be removed without eliminating CMHCs from the procurement, or an advantage while specifying an important substantive requirement. Petitioner's challenge to RFP 5.1 D.5, 5.1 E.1, 5.1F.1, and 6.3 B.3.c fails because these provisions, even if conferring significant advantages upon CMHCs, impose important qualitative requirements upon the delivery of mental health services to Medicaid clients. However, RFP 4.18 is different from these other provisions. It does not involve the actual delivery of mental health services to Medicaid clients. Section 4.18 dictates only how long after signing the contract with Respondent the contractor has to implement the new capitation contract. The advantage conferred by 4.18 upon CMHCs is neither trivial nor necessary. The federal waiver runs two years from the actual start-up date of the new capitation plan. Obviously, an inordinate delay in implementation might suggest that the contractor is unable to do the job, but nothing in the record suggests that 60 days marks the beginning of an inordinate delay. Respondent understandably wants to get the pilot project started quickly, presumably in anticipation of important cost savings. But these considerations do not rise to the importance of other provisions involving the actual delivery of mental health services to Medicaid clients. Non-CMHCs, especially offerors with as yet unidentified subcontractors, face a considerable task in plan implementation. For this procurement, only one offeror will have the assistance of the CMHCs, which gives that offeror a clear advantage in at least the community mental health and targeted case management categories. There is no good reason to increase this advantage by imposing an unrealistically short implementation timeframe on contractors. On the other hand, there are two reasons why the 60-day implementation timeframe is arbitrary and illegal: it conflicts with RFP provisions encouraging open competition and it conflicts with RFP provisions prohibiting more than a minimal disruption to clients. The new capitation plan represents a marked departure from past practice. The successful contractor is assuming considerable financial risks when it sets its fees and risk corridor, if any. This risk is spread over a wide geographic area containing some of Florida's most densely populated areas. Anticipated cost savings to the State may result in narrowed profit margins before the contractor can safely realize savings from reductions in the cost of mental health services provided to Medicaid clients. The success of the capitation plan is jeopardized if the contractor underestimates the revenue needed for the successful operation of the plan. The offeror without subcontractors at the time of submitting a proposal needs time to enlist the cooperation of CMHCs or other subcontractors. A witness of Respondent described a possible scenario in which CMHCs declined to cooperate with the contractor and were forced to terminate employees. Although these employees would be available to the contractor, they would not likely be available in a 60-day timeframe. A multitude of tasks confront the non-CMHC contractor, especially if the contractor does not have a subcontractor network in place when submitting the proposal. Not surprisingly, Respondent's witnesses did not offer a spirited defense of the 60-day implementation timeframe, as is partly illustrated by the following testimony of Respondent's chief witness: Q: Is there a reason that the language on Page 61 says "must have signed subcontract within 60 days?" A: No. What it is trying to get at there is that if you are going to start being operational within 60 days, you got to know that you got to get those subcontracts approved by us prior to being able to do that. Respondent's witness readily testified that the deadline would not be enforced, if the enforcement jeopardized the welfare of the Medicaid clients. Of course, given the vulnerability of the clients, Respondent would not require the implementation of an unfinished plan at the end of the contractual implementation timeframe, regardless of the duration of the implementation timeframe. But a rational deadline for implementation would not so readily invite discussions of waivers and extensions. The presence of an impractical deadline misleads offerors. Some offerors may obtain an unfair advantage by structuring their proposals without regard to the implementation timeframe, secure in the knowledge that it will not be enforced. Other offerors may limit Optional Services or avoid more creative delivery or administrative programs in order to ensure that their plans can be implemented within the arbitrarily short implementation timeframe. To eliminate arbitrary and illegal conflicts with other RFP provisions encouraging open competition and prohibiting more than minimal disruptions in service, the implementation timeframe of 60 days must be extended to at least 120 days.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Agency for Health Care Administration enter a final order amending RFP 4.18 by inserting "120" days for "60" days in the second paragraph and making any necessary conforming changes elsewhere in the RFP, and, after making these changes, proceed with the subject procurement. ENTERED on January 31, 1995, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on January 31, 1995. APPENDIX Rulings on Petitioner's Proposed Findings 1-4: (except that "poisonous" in paragraph 2 is rejected as melodramatic and unsupported by the appropriate weight of the evidence): adopted or adopted in substance. 5: rejected as unsupported by the appropriate weight of the evidence, except for 4.18. 6-7: adopted or adopted in substance, except that Petitioner did not challenge 5.1 E at the hearing or in the proposed recommended order. 8: rejected as irrelevant. 9-13: adopted or adopted in substance. 14: rejected as unsupported by the appropriate weight of the evidence. Petitioner did not prove that the actual information shared by the CMHCs was crucial--only that certain information could theoretically be crucial. 15: adopted or adopted in substance, although other CMHCs operate in Area 6, but do not possess much share of the community mental health services market. 16-17: rejected as irrelevant. 18: adopted or adopted in substance, except for the last sentence, which is rejected as unsupported by the appropriate weight of the evidence (except for 4.18). 19-20: adopted or adopted in substance. 21: rejected as repetitious. 22: adopted. 23-25: adopted or adopted in substance, except for last sentence of paragraph 25, which is rejected as unsupported by the appropriate weight of the evidence. 26-27: adopted or adopted in substance. 28: rejected as unsupported by the appropriate weight of the evidence. 29-33: adopted or adopted in substance, except for last sentence of paragraph 33, which is rejected as unsupported by the appropriate weight of the evidence. 34: adopted or adopted in substance. 35-36: rejected as unsupported by the appropriate weight of the evidence. 37-38: adopted or adopted in substance, although this was hypothetical testimony of one of Respondent's witness, not a formal statement of Respondent's "position." 39 (first sentence): rejected as unsupported by the appropriate weight of the evidence. 39 (second sentence): adopted. 40-44 (second sentence): adopted or adopted in substance. 44 (third sentence): rejected as recitation of evidence. 45: adopted. 46-47: adopted or adopted in substance. 48: rejected as unsupported by the appropriate weight of the evidence. 49: rejected as irrelevant and, except for 4.18, unsupported by the appropriate weight of the evidence. Rulings on Respondent's Proposed Findings 1-5: adopted or adopted in substance. 6: adopted or adopted in substance, except for 4.18. 7: adopted or adopted in substance. 8: adopted or adopted in substance, at least to the extent that Petitioner failed to prove the contrary. 9 (except last sentence): adopted or adopted in substance. 9 (last sentence): rejected as speculative. 10-16: adopted or adopted in substance, although the extent of Petitioner's ability to respond satisfactorily is questionable, as is the rationale for the use of FTEs for non-administrative positions. Additionally, all proposed findings that RFP provisions do not place non-CMHCs at a disadvantage, when such proposed findings conflict with findings in the recommended order, are rejected as unsupported by the appropriate weight of the evidence. COPIES FURNISHED: Douglas M. Cook, Director Agency for Health Care Administration 2727 Mahan Drive Tallahassee, FL 32308 Harold D. Lewis, General Counsel Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, FL 32303 Sam Power, Agency Clerk Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, FL 32303 Seann M. Frazier Mark A. Emanuele Panza Maurer P.A. 3081 East Commercial Blvd. Suite 200 Ft. Lauderdale, FL 33308 Paul J. Martin William H. Roberts Assistant Attorneys General Office of the Attorney General PL-01, The Capitol Tallahassee, FL 32399-1050
Findings Of Fact At all times material hereto Petitioner was incarcerated at Union Correctional Institition within the custody and control of the Department of Corrections. On or about March 1, 1983, Petitioner submitted a request to be admitted to the Mutual Participation Program, also known as ''Contract Parole." Thereafter, Petitioner was considered for eligibility for that program by a classification specialist employed by the Department of Corrections and a parole examiner employed by the Parole and Probation Commission. On April 22, 1983, these two officials recommended against Petitioner's request based on Petitioner's "extensive criminal history," "history of drug abuse in the past," his escape from minimum custody while a patient at the Veteran's Administration hospital in Gainesville in December of 1979, and his involvement in a prison disturbance at Marion Correctional Institute in 1978. Chapter 23-20, Florida Administrative code, entitled Mutual participation Program was first adopted by Respondent on September 10, 1981. Respondent conducted rulemaking proceedings in 1982 which resulted in amendments to various portions of Chapter 23-20, Florida Administrative Code. These amendments became effective October 1, 1982. During the course of the rulemaking proceeding, Respondent published notice of the proposed changes in the Florida Administrative Weekly and, in addition, forwarded copies of the proposed changes to all Department of Corrections offices, including each correctional institution. The record in this cause is unclear as to whether these proposed changes were ever posted in the law library or other office at Union Correctional Institution. Petitioner contends that he was never afforded notice of the proposed amendments to Chapter 23-20, Florida Administrative Code, and library officials at Union Correctional Institution do not specifically recall ever having seen such proposed amendments. There are no facts of record in this proceeding from which it could be concluded with any certainty whether any of the provisions of Chapter 23-20, Florida Administrative Code, either as it was initially adopted or as it was amended effective October 1, 1982, were applied to Petitioner's request for participation in that program.
The Issue Should Petitioner impose discipline on Respondent in association with his correctional certificate?
Findings Of Fact Respondent was certified by the Criminal Justice Standards and Training Commission on October 29, 1997, and was issued correctional certificate No. 175702. At times relevant to the inquiry Respondent was employed at the Gadsden Correctional Facility as a Senior Correctional Officer. Corrections Corporation of America (CCA) ran Gadsden Correctional Facility during the period in question. On February 26, 20004, on a medical enrollment worksheet for insurance provided by CCA, Respondent wrote in the name Tamara S. Ross and identified Tamara Ross as his wife. Similarly, on a dental/disability worksheet for insurance executed on the same date, Respondent wrote the name Tamara S. Ross, in a block within the form which was intended for use in identifying the applicant's spouse. In both insurance plans Respondent, by executing the applications, had added Tamara S. Ross to the coverage. When placing his signature on the application forms to add Tamara S. Ross to the coverage he confirmed, consistent with each form, "I am also certifying that all of the information, including dependent information, that I have provided on this form is accurate." At the time the applications were made requesting that Tamara S. Ross be added for medical and dental/disability coverage as Respondent's wife, the person identified as Tamara S. Ross was not the wife of Respondent. At an earlier time she had identified herself as Tamara Moore. In a document found within Respondent's personnel file maintained by his employer CCA, a reference is made to "Tamara" who is described as "my fiancée." On November 11, 2004, Respondent resigned his position as Senior Correctional Officer at the Gadsden Correctional Facility.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a Final Order be entered finding violations pertaining to Sections 838.022 and 943.1395(7), Florida Statutes (2003), and Florida Administrative Code Rule 11B-27.0011(4)(a), while dismissing the part of the case referring to Section 943.1395(6), Florida Statutes (2003), and suspending the correctional certificate held by Respondent for 30 days. DONE AND ENTERED this 11th day of August, 2005, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 2005. COPIES FURNISHED: Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Joe L. Ross, III Michael Crews, Program Director Criminal Justice Standards and Training Commission Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact When Respondent requested a formal hearing he also filed a written document addressing the allegations in the Administrative Complaint. By that response he admitted to being certified by the Criminal Justice Standards and Training Commission. The nature of that certification is as a corrections officer. At the time relevant to the complaint, Respondent worked as a corrections officer at Gadsden Correction Institution (the Institution). At that time Chrysta Rivoire was an inmate in the facility. Respondent came to the bedside where Ms. Rivoire was housed on several occasions. Respondent was observed to try and kiss Ms. Rivoire. She turned her head away to resist his advance. The visits which Respondent made to Ms. Rivoire at her bedside were at a time when he was on duty at the Institution. On those occasions he would sit at her desk or stand at the foot of her bed. Respondent would also come and sit at tables in the dayroom where Ms. Rivoire and Barbara Daugherty, another inmate, were sitting. Respondent was observed showing pictures to Ms. Rivoire while she was incarcerated. Respondent remarked about pictures which Ms. Rivoire had displayed on a desk in the area where she resided. On several occasions Respondent gave Ms. Daugherty letters to pass to Ms. Rivoire. The subject matter of one of the letters discussed different ways Respondent liked sex and ways he "wanted her," referring to Ms. Rivoire. Another letter talked about Ms. Rivoire's kids and Respondent's meeting the kids. A third letter passed from Respondent to Ms. Daugherty to give to Ms. Rivoire was handed over in a small foyer area within the Institution. Ms. Rivoire received this letter from Ms. Daugherty. The letter said: Hello Sweetheart! How are you doing today? Fine I hope. As for me, just going with the flow of things. You know how life goes. I believe you made a statement "You would like to be more than just a friend. I was hopping that you would say such. It lit up my heart when I read those roads [sic]. I am surely [sic] hoping that we can become very close to each other. You seem to be bit shy to me. Is this conclusion drawn [sic] correct, or am I way off base. Your style is so unique. You have a very beautiful and captivating smile. I hope we can take our relationship to a level we would both enjoy and be pleased with each other. I am surely looking forward to knowing you better. You said you trust me, but maybe a little to [sic] much. In a way that may be a good thing. Not that I mean in a negative way, but it's always good to have some type of skepticism of someone. It always keeps you alert of life and other people know [sic] matter what comes. Til [sic] next time, you continue to take good care of yourself. I hope you don't mind me calling you sweetheart. But to me, that exactly [sic] what you are. Besides, calling you friend wasn't something I really wanted to continue. Sweet dreams and thoughts. Hope to get a chance to talk to you soon. May Good Bless and Much Love to you my dear. Yours truely, [sic]
Recommendation Upon consideration of the facts found and Conclusions of Law reached, it is RECOMMENDED: That a Final Order be entered revoking the Respondent's certification as a correctional officer. DONE AND ENTERED this 27th day of August 2003, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 2003. COPIES FURNISHED: Henry G. Thomas 111 South Ward Street Quincy, Florida 32351 Linton B. Eason, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Rod Caswell, Program Director Criminal Justice Standards and Training Commission Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
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
Findings Of Fact Introduction On August 15, 1983, petitioner, Rehab Hospital Services Corporation (Rehab), filed an application with respondent, Department of Health and Rehabilitative Services (HRS), seeking a certificate of need authorizing the construction and operation of a 40-bed comprehensive medical rehabilitation hospital in Volusia County, Florida. The proposed cost was then estimated to be $7.2 million. A rehabilitation facility is one which provides a program of comprehensive medical rehabilitation services and which is designed, equipped, organized and operated to deliver such services. According to Rule 10-5.11(24), Florida Administrative Code, a comprehensive medical rehabilitation service is defined as "intensive care providing a coordinated multi-disciplinary approach to patients with severe physical disabilities such as spinal cord injury, brain injury, stroke, multiple sclerosis, cerebral palsy, hemiplegia, quadriplegia, paraplegia, and other physical disabilities which require an organized program of integrated and coordinated services." After reviewing the application, HRS issued its proposed agency action on January 19, 1984 wherein it proposed to deny the application for the following general reasons: Using the rehabilitation bed need methodology presented in Chapter 10-5.11(24)c, FAC, and subtracting away from this need the current number of rehabilitation beds in the service districts there exists an excess of 55 rehabilitation beds. Further, the occupancy standard presented in Chapter 10-5.11(24)c, FAC, of 85 percent, for existing rehabilitation beds before additional beds can be approved has not been met. The agency's decision prompted this proceeding. Applicants Proposal Petitioner is an experienced health care provider. It currently owns and operates some nine hospitals throughout the United States, of which at least seven are comprehensive rehabilitation facilities. Most recently, Rehab was issued a certificate of need to construct and operate a tenth rehabilitation facility in Melbourne, Florida. Rehab proposes to construct a 40-bed comprehensive medical rehabilitation hospital in Volusia county. Although a specific site has not been determined, the facility will probably be built in Daytona Beach just north of U.S. 92 and south of Mason Avenue. The revised cost is $6.9 million. In the new facility, Rehab intends to offer or make available at a minimum the following rehabilitation services: physician services, nursing services, physical therapy, speech therapy, prosthetic orthopedic and stroke devices and services, inhalation therapy, psychological services, occupational therapy, skilled rehabilitation nursing care, dietary services, social work and vocational evaluation work adjustment. The facility will be accredited by the Commission on Accreditation of Rehabilitation Facilities (CARF). All necessary specialized staff will be available and hired by Rehab. Daytona area acute care hospitals will provide hospital services such as high technology radiology, IV preparation and drug toxic testing. In addition, Rehab will be able to develop cooperative arrangements and a formal referral system with local acute care hospitals, neurologists, orthopedists, psychiatrists, local physicians and community organizations such as Easter Seals. After the proposed agency action was issued, but prior to final hearing, Rehab and Memorial Regional Rehabilitation Center, Inc. (Memorial), a rehabilitation hospital in Jacksonville, entered into a joint venture whereby Memorial would transfer twenty of its unused licensed beds to Rehab for its new facility. The agreement further provided that the two would be equal partners in the new venture. Therefore, Rehab is seeking to add only twenty beds to the District count. Applicant's primary service area will be Volusia County, which had a 1980 population of 329,000. That figure is projected to increase 37 percent by the year 1990. The only other center of population in the service district is Jacksonville, where the population was 594,000 in 1980. Given this maldistribution of population within the service district, the projected growth in the Daytona area, and the fact that only one other rehab facility is located within the district, Rehab contends that a new facility in the Daytona area is justified. Competing Facilities The proposed facility lies within HRS District IV which includes Baker, Nassau, Duval, Clay, St. Johns, Flagler and Volusia Counties. The two principal population centers within District IV are Jacksonville and Daytona. At the present time there is only one existing comprehensive medical rehabilitation hospital within District IV. That facility is Memorial in Jacksonville. Memorial, which initially opposed but now supports the application, is licensed to operate a 128-bed facility. However, its physical plant can accommodate only 110 beds. In addition to Memorial, there are two rehab facilities in the Orlando area, which lies in adjacent District VII. These are Florida Hospital and Humana Lucerne with 49 and 35 beds, respectively. However, Humana Lucerne confines its admissions principally to spinal cord injuries, while Florida Hospital focuses chiefly upon stroke victims. Need for Facility in Relation to State and District Health Plans (Subsection 381.494(6)(c)1.,F.S.) The applicable State Health Plan (Plan) was not made a part of this record by either party. However, the application states that the Plan does not include criteria or standards for the determination of comprehensive physical rehabilitative bed need. Although the agency witness stated that the Plan "reiterates the criteria that are found in Chapter 10-5.11(24)," he did not provide any specific references in the rule or Plan to support this statement, or how the proposal was inconsistent with the Plan. Accordingly, it is found that the Plan has no applicability to this proceeding, and applicant need not demonstrate that its proposal is consistent with the Plan. The District IV Health Plan (DHP) is prepared by the Health Planning Council of Northeast Florida, Inc. (Council). Copies of relevant portions of the 1985, 1984 and 1983 DHP's were introduced into evidence as petitioner's exhibits 11, 12 and 13, respectively. The parties have stipulated that the 1985 DHP contains two relevant recommendations: (a) that HRS not give consideration to approving additional comprehensive rehabilitation beds in District IV through the year 1986, at which time the Council would again review this recommendation, and (b) that HRS consider the transfer of comprehensive medical rehabilitation beds from Duval County to Volusia County as long as the total number of beds in the district does not increase. It is apparent, then, that Rehab's proposal is only partially consistent with the District Health Plan. In making the above two recommendations, the Council's Executive Director acknowledged that there "is very little interaction between the northern and southern population concentrations" of the District, as well as "the health delivery systems located therein." Further, he agreed that the health delivery systems in Jacksonville and Daytona are essentially independent from one another. The 1985 Plan also premised its recommendations in part upon the assumption that HRS rules "allow an exception to the need methodology if 10 percent of the population live more than two hours normal travel time from a center. Populous Volusia County does not qualify for the exception because other centers outside the district are within the two hour limitation." In fact, there are no HRS rules defining accessibility to be when 90 percent of a district's population lives within two hours driving time of a rehabilitation facility. The Council also made no travel time studies to verify its assumption relative to the two hour travel time within the district, made no investigation as to the number of Volusia County residents utilizing non-district hospitals, and was not aware of admission policies for rehab patients at other facilities outside the district, or the fact that one Orlando hospital principally confines its rehab admissions to spinal cord cases. The DHP also recognizes that if rapid growth continues, "a comprehensive rehab center for the area may become appropriate" at some point in time. In view of the flaws in the assumptions which underpin the DHP recommendations, the consistency or inconsistency of Rehab's proposal with the DHP should be given only minimal weight in relation to the other applicable statutory and rule criteria. A proposal does not need to be consistent with the district and state health plans whenever there are "emergency circumstances which pose a threat to the public health." In this case, there are no such emergency circumstances, and therefore the exception does not apply. Availability Quality of Care, Efficiency, Appropriateness, Accessibility, Extent of Utilization, and Adequacy of Like and Existing Health Care Services in the Service District (Subsection 381.494(6)(c)2., F.S.) Rule 10-5.11(24), Florida Administrative Code, establishes the methodology for determining and projecting the need for rehabilitation beds within a district. It is noted that, unlike other methodologies which determine need on a subdistrict basis, need is calculated for rehab beds on a district- wide basis. The parties have stipulated that the present inventory of rehabilitation beds in District IV is 128, all licensed for Memorial's facility in Jacksonville. Using the formula in paragraph (b)1. of the rule, it results in a district- wide need of 79 beds in the planning horizon year of 1990. This in turn produces 49 excess beds at the present time in District IV since the present inventory numbers 128 beds. Therefore, even though Memorial does not have available the entire complement of 128 beds this portion of the rule has not been satisfied. Rule 10-5.11(24) contains "other factors to be considered in determining a need for comprehensive medical rehabilitation services, in addition to relevant statutory and rule criteria." These factors are set forth in subparagraph (b)2. of the rule. In addition, standards and criteria relative to unit size, occupancy, accessibility programs and services, accreditation, variable and optional services, and transfer and referral agreements must also be considered. These are contained in subparagraphs (b)3.-6. of the rule. In relation to the criteria set forth in subparagraph (b)2.a.-d. studies compiled by Rehab, as set forth in its exhibit 31, reveal that Volusia's population is projected to grow by 37 percent between 1980 and 1990, and that the 65 and over age segment is forecast to be the fastest growing segment of the population. This is particularly significant since testimony by Daytona area physicians established that a great number of their patients in need of rehabilitative services come from the elderly segment of the population. In addition, Volusia is projected to have 792 rehabilitation discharges in 1990 as compared with 883 in Duval. This indication of disabling conditions and chronic illness suggests a need for rehabilitation beds in the southern portion of the district. With respect to trends in utilization by third party payers, Rehab proposes to make its facility available to all level incomes and to seek a Medicaid contract. By doing the latter, it projects 53 percent Medicare patients in its first year of operation. Next, through testimony from Daytona area physicians it was established that the "existing and projected inpatients in need of rehabilitation services" are on the rise, and provide further support for the establishment of a new facility. Finally, Rehab proposes to have available a "specialized staff" as required by the rule. Accordingly, the criteria in subparagraphs (b)2.a.-d. have been satisfied and militate towards favorable action on the application. Rule 10-5.11(24)(b)3.a. requires that any new facility have no less than forty beds. Subparagraph (b)3.b. requires minimum occupancy of at least 65 percent during the first year of operation while subparagraph (b)3.d. imposes the requirement that a full array of programs and services be offered. Rehab meets all of these criteria. Finally, subparagraph (b)3.b. also provides that no proposal . . . will be approved unless the average annual occupancy rate for all existing comprehensive rehabilitation facilities and units within the . . . service district exceeds 85 percent occupancy for the preceding calendar quarter." Memorial is the only such facility in the district and, although licensed for 128 beds, it has only 110 beds in its facility at the present time. To reach the 85 percent occupancy for the licensed capacity of 128 beds, Memorial would have to fill 109 of the 110 existing beds on average. This would be virtually impossible to accomplish. Because of these unique circumstances, it is found that the 85 percent occupancy standard normally used is an inappropriate standard to apply in this case, and should not be used as a basis to deny the application. This being so, all criteria in subparagraphs (b)3.a., b. and d. have been met. Subparagraph (b)3.c. provides that "applicants for comprehensive rehabilitation services should demonstrate that at least 90 percent of the target population resides within two hours driving time under average traffic conditions of the location of the proposed facility." In this case the target population (Volusia County) is within minutes of the proposed facility and therefore satisfies the rule. On the other hand, exhibit 29, which is the only traffic study in this proceeding, and which was not credibly contradicted, reflects that Orlando and Titusville are the only major cities within a two hour driving time of the facility while Melbourne, Lakeland, Ocala, Gainesville and Jacksonville are outside this zone. Even Orlando is not especially convenient, for it lies around an hour and twenty minutes away. Therefore, there are no hospitals in District IV within two hours driving time, while two are in an adjacent District approximately 80 minutes away. However, one of these (Humana) restricts its admissions to mainly spinal cord injuries (92-95 percent of patients) while the other focuses on stroke victims. Further, both have a primary service area different from that proposed by Rehab. This is evidenced by the fact that Volusia and Flagler County residents most recently constituted only 2 percent and 7 percent, respectively, of total patient days at the two facilities. The accessibility standard is accordingly satisfied. According to subparagraph (b)3.e., a facility must be accredited by CARF and meet its standards. In this regard, the proposed facility will be accredited. However, HRS points out that Rehab only intends to make physician and psychology services available rather than actually providing them. The provision of such services should be a condition to issuance of a certificate of need, if indeed Rehab is deficient in this respect. Therefore, with that condition, the criterion has been met. Rehab proposes to offer, where needed, all required variable and optional services enumerated in subparagraphs (b)4. and 5. Finally, Rehab has the ability to develop a formal referral system with acute care hospitals, home health agencies, other providers of vocational rehabilitation facilities and community social services organizations as required by subparagraph (b)6. of the rule. Testimony by local physicians established that Daytona doctors have difficulty in obtaining admissions in non-local hospitals such as Memorial and the two Orlando hospitals. It was further established that a crucial step in the patient recovery process is the need for family members to visit the patient on a frequent basis. Given these considerations and the two hour travel time to Memorial, it is found that the "like and existing health care services in the service district" are not available, appropriate or accessible within the meaning of the statutory criteria. Availability and Adequacy of Other Health Care Facilities in the District (Subsection 381.494(6)(c)4., F.S.) Reasonable and adequate alternatives to hospital placement do not exist. Nursing homes, home health care, Easter Seal and similar programs do not offer a viable alternative to a true rehab center. This is because such services provided in those facilities are in the nature of maintaining the patient rather than restoring the disabled patient to a productive life. Further, the services offered in alternative placements are far less comprehensive in natured and pale in comparison to those offered by a comprehensive medical facility. In view of this, it is found that other health care facilities and services in the district are not available or adequate in terms of providing comprehensive rehabilitative medical services. Probable Economies & Improvements in Services that may be Derived from Joint or Cooperative Shared Facilities (Subsection 381.494(6)(c)5., F.S.) HRS suggests that the most economical way to achieve a new facility in Volusia County is by Memorial simply transferring forty of its 128 licensed beds to Rehab. But Memorial does not wish to transfer more than 20 beds since it plans on eventually using 108 beds in future years. It also does not have the financial capability of constructing its own facility in Volusia County. Under the joint venture agreement, however, twenty unused beds will be put to use, at no cost to Rehab, and both Rehab and Memorial will be equal partners in the new facility. The end result is the establishment of a new rehab facility in the Daytona Beach area that will serve one of the two population centers in the district. Even if Memorial were itself to construct a new facility, the cost of the land and building would be at least equal to what Rehab must bear, and therefore no economies would be achieved. The sharing arrangement proposed by Rehab accordingly achieves economies and improvements in service, and therefore satisfies the criterion. The Need of Applicant for Special Equipment and Services Not Reasonably and Economically Accessible in Adjoining Areas (Subsection 381.494(6)(c)6., F.S.) A rehab center is designated by HRS as a specialty hospitals and as such, provides a unique or special service for its patients. No other comparable facility is reasonably or economically accessible in an adjoining area. Therefore, this criterion has been satisfied by applicant. The Extent to Which Proposed Services-Will be Accessible to All Residents of the Service District (Subsection 381.494(6)(c)8., F.S.) Exhibit 29 clearly reflects that the proposed services will be accessible to the large number of residents in the southern part of HRS District IV. In 1980, they numbered 329,000 persons, and this number is expected to increase by 36.5 percent by the year 1990. Access time of less than two hours extends to much of the populace within the District. More importantly, the facility will be within minutes driving time for patients and families who reside in the large concentration of population in Volusia and Flagler Counties, which is the primary service area of Rehab. In additions the facility will accept Medicaid and Medicare patients; thereby making it accessible to that segment of the population. Therefore, the criterion is satisfied. The Immediate and Long-Term Financial Feasibility of the Project (Subsection 381.494(6)(c)9.,F.S.) At the outset of the hearing the parties stipulated that Rehab has sufficient capital and funds to "construct and open" the proposed facility. L. Effect of New Facility on Competition and Cost-Effectiveness in Delivery of Health Care Services (Subsection 381.494(6)(c)12.,F.S.) Rehab operates seven new rehab hospitals through out the country that provide services comparable to that proposed herein. Most recently, it was issued a certificate of need by HRS to construct and operate a new rehab facility in Melbourne, Florida. Its experience in planning and operating such facilities is not seriously questioned. Based on utilization figures of 65 percent during year one and 85 percent in year two, which are not contradicted and cost experience from its other hospitals, applicant projects a profit between the sixth and seventh months of operation. These projections have not been shown to be unreasonable. Even though it projects only a 1 percent combined indigent and bad debt experience, 53 percent Medicare reimbursement, and .14 percent insurance revenues, these projections are not unrealistic given the fact that unlike an acute care facility patient transfers are prescreened prior to admission. Accordingly, it is found that the project is financially feasible within the meaning of the statute. K. Entities Providing a Substantial Part of Services to Residents Outside Service District (Subsection 381.494(6)(c)11.,F.S.) Although the two specialty hospitals (Florida Hospital and Humana) in District VII provide services to residents outside of their districts these services do not constitute a "substantial" part of their overall service to area residents. For example, since 1983, Volusia and Flagler County patients using Florida Hospital's facility have diminished to approximately 2 percent of its total patient days during the first half of 1985. In the case of Humana, Flagler and Volusia patients represented only 7 percent of that facility's admissions for the ten months ending June 1, 1985. Therefore, because non- District IV facilities provide only a very small part of their services to District IV patients, there will be no impact on these facilities within the purview of this criterion. Approval of the new hospital will not adversely affect Memorial the only rehab facility in District IV. In fact, Memorial supports the application. The effect on Humana, and Florida Hospital should also be negligible since only a very small number of District IV patients now use their facilities. Indeed, the numbers of Volusia area residents using the Orlando facilities has been declining in recent years. Since many patients in Volusia County are now discharged to alternative facilities due to a lack of accessible rehab facilities the delivery of health services and quality of care should improve with the addition of a rehab facility in Daytona. By having a "local" rehab facility, patients will receive comprehensive care that will restore them to their highest functioning potential rather than the patient simply being "maintained" in a nursing home, home health agency or regular hospital facility. This in turn should reduce health care costs incurred when the patient receives maintenance vis a vis restorative care. Accordingly, it is found that the effect on competition will be positive, and that the delivery of health care services and quality of care will be improved.
Recommendation Based on the foregoing findings of fact and conclusions of law it is RECOMMENDED that the application of Rehab Hospital Services Corporation for a certificate of need to construct and operate a 40-bed comprehensive medical rehabilitation facility in Volusia County, Florida be GRANTED subject to the condition in conclusion of law paragraph 14 and finding of fact paragraph 18. DONE and ORDERED this 7th day of January, 1986, in Tallahassee, Florida. DONALD R. ALEXANDER 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 7th day of January, 1986.
The Issue Whether Petitioner, Alexander DeArmas ("Petitioner") can establish, by a preponderance of the evidence, that at least three years have elapsed since he has been lawfully released from confinement, supervision, or nonmonetary condition imposed by the court for the disqualifying felonies pursuant to section 435.07(a)(1)1., Florida Statutes, such that he is eligible for an exemption from disqualification.
Findings Of Fact Petitioner is a 38-year-old male seeking to qualify, pursuant to section 435.07, to participate in the Medicaid program. AHCA is the state agency responsible for administration of the Medicaid program in Florida. On February 27, 2014, Petitioner pled guilty to the two disqualifying felony drug offenses. Petitioner was adjudicated guilty and he was sentenced to five years of drug offender probation. On April 15, 2014, the court entered an Order that the "remainder of the defendant's probation shall be converted from drug offender probation to regular probation." On February 23, 2017, Petitioner was released early from his probation. On October 4, 2018, Petitioner submitted an application for exemption from disqualification to AHCA pursuant to section 435.07. In a letter dated December 28, 2018, AHCA notified Petitioner that his request for an exemption from disqualification was denied. AHCA determined Petitioner is ineligible for an exemption because section 435.07 requires that three years elapse between the date Petitioner was lawfully released from confinement, supervision, or nonmonetary condition imposed by the court for the disqualifying felonies and the date of application for the exemption. Petitioner is ineligible for an exemption because three years have not elapsed since he was released from probation on February 23, 2017.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order denying Petitioner's request for an exemption from disqualification as a Medicaid provider. DONE AND ENTERED this 5th day of September, 2019, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of September, 2019. COPIES FURNISHED: Bradley Stephen Butler, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Alexander DeArmas 8874 West 35th Lane Hialeah, Florida 33018 Ryan McNeill, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Thomas M. Hoeler, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Kim Annette Kellum, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Stefan Grow, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Mary C. Mayhew, Secretary Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 1 Tallahassee, Florida 32308 (eServed)
Findings Of Fact Based on the Prebearing Stipulation executed by the parties, and the evidence submitted at hearing, the following facts are determined: Mental Health Board No. 9 ("Board") coordinates mental health programs within the Department's Service District 9-a geographic area encompassing Indian River, Okeechobee, St. Lucie, Martin, and Palm Beach Counties. Three community mental health centers provide services to meet the mental health needs within District 9. (Testimony of Robert Quam) The Board, by contract with the Department's Administrator of District 9, coordinates and disburses State funds specifically appropriated for the purpose of supporting community treatment programs for persons suffering from mental illness, alcoholism and drug abuse. The current contract between the District Administrator and the Board was executed during June, 1979, and contains no allocation to the Board for the provision of residential treatment services for emotionally disturbed children. (Testimony of K. Bray) In 1979, the Florida Legislature appropriated to the Department's central Office of the Assistant Secretary for Operations, Office of Assistant Secretary, a lump sum of $1,295,000.00 for the purchase of residential treatment services for emotionally disturbed children during fiscal year 1979-80. In addition, $705,000.00 was provided, in lump sum, to the Florida Department of Education for education of emotionally disturbed children. (Testimony of K. Bray, Petitioner's Exhibit Nos. 2 and 9) On July 19, 1979, the Department distributed to over 50 providers of social services, a Request for Proposals for the purchase of residential services for emotionally disturbed children. The Request indicated the Department was "seeking to expand its services for emotionally disturbed children and adolescents through the development of residential. treatment- orientation programs," 1/ outlined the features of the program, including statewide standards and other criteria, and invited recipients to submit to the Department's Assistant Secretary for Operations, proposals to provide such services by contractual purchase. (Testimony of K. Bray, Petitioner's Exhibit Nos. 1 and 2) The Department required proposed residential services for emotionally disturbed children to emphasize short term treatment designed to meet the social, emotional, and educational (including vocational) needs of children. Since the Department concluded that there was "no concrete evidence that one specific therapeutic modality works best at reducing or eliminating a child's emotional disturbance," 2/ applicants were invited to propose a wide range of treatment modalities. While successful treatment for emotionally disturbed children includes a therapeutic mental health element, it also must include educational, vocational, recreational, and social components. (Testimony of E. Bray, Dr. Clifford J. Bodarky, Petitioner's Exhibit No. 2) Upon receiving the Department's Request for Proposals for the purchase of residential services for emotionally disturbed children, the Executive Director of the Board met with representatives of the three mental health centers within District 9. They concluded that there was an urgent need for such services within their area, and agreed to submit, through the Board, a coordinated proposal to the Department. The Board's Executive Director drafted the initial proposal, and, after approval by the mental health centers and Board, submitted it to the Department's Assistant Secretary for Operations. The Board's proposal, which would be supported and administered by the three mental health centers, provided for the establishment of 45 therapeutic foster care homes, with close supervision by professional case workers. (Testimony of R. Quam, Petitioner's Exhibit Nos. 3 and 4) The Department received in response to its July 19th request, 20 proposals from providers of social services throughout the State, including one mental health board (Mental Health Board No. 9, Inc.), several mental health centers, a hospital, university, Little River Boys Ranch and Boystown of South Florida. By letter of August 31, 1979, the Department's Assistant Secretary for Operations notified the Board that its proposal had been selected for further review. During September, the Board's Executive Director discussed its proposal with Department representatives in Tallahassee, including Ms. Phyllis Roe, Assistant Secretary for Operations. They specifically discussed one attribute of the proposal-- that it would be a coordinated effort under the Board, with the Board serving as the applicant. Although Board representatives left that meeting with a belief that the Department was amenable to such a role for the Board, Department representatives did not expressly approve, or commit to approval of this feature of the proposal. (Testimony of Terry H. Allen, and Robert K. Quam) By letter dated October 8, 1979, Assistant Secretary Roe informed the Executive Director of the Board that its proposal had been approved, and concluded: "Because your plan involves therapeutic foster homes in three separate Mental Health Center catchment areas and each Center may focus its program a little differently, we will need to execute three separate contract.. I believe the process will be expedited if we deal directly with the Center staff responsible, with your par- ticipation in the process and, with space provided on the contract for your con- currence." (Petitioner's Exhibit No. 7) By letter of October 25, 1979, the Board objected to the Department's decision to bypass it and implement the proposal by contracting directly with each mental health center involved. The Department subsequently executed separate contracts with the three mental health centers included in the Board's proposal. No evidence was introduced to indicate that the program is not being effectively administered pursuant to the provisions of those contracts. (Petitioner's Exhibit No. 8)
Conclusions Funds appropriated to the Department's central Office of the Assistant Secretary for purchase of residential services for emotionally disturbed children are not State mental health funds which must be distributed to and administered by the various district mental health boards under Part IV, Chapter 394, Florida Statutes (1979). Contract principles do not compel the Department to contract with Petitioner Mental Health Board No. 9 to provide residential services to emotionally disturbed children located in District 9.
Recommendation That Petitioner Mental Health Board No. 9's request for relief be DENIED and the Department's actions under challenge be UPHELD.
