The Issue The issue is whether the Florida Department of Education (“the Department”) committed one or more unlawful employment practices against Petitioner (“Ms. Spradlin”) by discriminating against her based on race.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following Findings of Fact are made: Ms. Spradlin worked from 2006 to 2010 as a psychological specialist at a facility known as Sunland in Marianna, Florida. Ms. Spradlin is Caucasian. During a portion of the time that Ms. Spradlin was at Sunland, Tawana Gilbert worked there as a human service administrator. Ms. Gilbert is African-American. Ms. Spradlin and Ms. Gilbert did not work closely together, but they served on the same interdisciplinary team and worked with the same residents. Ms. Gilbert’s only knowledge of Ms. Spradlin was through the documentation that Ms. Spradlin submitted to the interdisciplinary team. Ms. Gilbert left Sunland in approximately November of 2009, and began working for the Department as a unit supervisor for a vocational rehabilitation services unit in Marianna, Florida. Vocational rehabilitation assists people by providing them with services that enable them to obtain and maintain gainful employment. During the time period relevant to the instant case, the Marianna unit had 10 staff members and served five counties. Of those 10 staff members, five were counselors and one was the unit supervisor. At some point after Ms. Gilbert left Sunland, Ms. Spradlin saw an advertisement for an entry level vocational rehabilitation counselor position at the Marianna unit. Ms. Spradlin applied for the position and was hired in 2010. In March or April of 2011, Ms. Gilbert invited all of her coworkers to a special event at her church. Ms. Gilbert asked her coworkers with children if their child would like to participate in a program that was to be part of the festivities. Ms. Spradlin said that her daughter was willing to participate, and Ms. Gilbert typed out the words that Ms. Spradlin’s daughter was to recite during the program. When it was time for Ms. Spradlin’s daughter to recite her part, she became nervous, and her grandmother read the part. Following this event, Ms. Spradlin asserts that Ms. Gilbert’s attitude toward her changed and that the unlawful employment practices alleged in her Charge of Discrimination began. Findings Regarding Ms. Spradlin’s Interviews for Senior Counselor Positions There were two openings for senior vocational rehabilitation counselors at the Marianna unit in October of 2012.1/ When the Department is considering applicants for a particular position, it utilizes a three-person panel to conduct interviews and score the applicants. After the interviews, the three-person panel reaches a consensus as to each applicant’s scores, and the Department uses a standardized matrix to rank each applicant. The panel for the two senior vocational rehabilitation counselor openings consisted of Allison Gill, the Department’s area supervisor; Michael Nobles, the former supervisor of the Marianna unit; and Ms. Gilbert. Ms. Gill and Mr. Nobles are Caucasian. Of the five people who interviewed for the two openings, Ramonia Robinson earned the highest score, a 72. With regard to Ms. Robinson’s qualifications, Ms. Gilbert testified as follows: Ms. Robinson, she was a current employee there. She was an entry-level counselor, had been for many, many years. She was there prior to my hiring with VR, so I was familiar with her work history. And she was very thorough, very detailed, very flexible, and very unemotionally involved with her cases. So she, in conducting her cases and case management, was awesome. And she was very knowledgeable about the questions that were being asked. She had had a long history of experience with case management, providing services to individuals with disabilities, and just adequately managing her caseload. She did very well on her interview. Ms. Spradlin received the second highest score, a 56. Keith Sutton, an outside applicant, received a score of 55. When two applicants’ scores are within one point of each other, the Department bases the ultimate hiring decision on reference checks. Ms. Gilbert contacted Mr. Sutton’s references and received positive feedback about him. As for Mr. Sutton’s qualifications, Ms. Gilbert provided the following testimony: Q: What about Mr. Sutton’s experience, resume was notable to you in the interview process? A: Well, he had his degree. It’s directly related to the field of counseling. He had a wealth of experience in the counseling field. He came to us from the Agency for Persons with Disabilities, which is Sunland, where he had a year there, and he met at least the minimum qualifications. He was very – his application was very detailed, and it identified precisely his experience based on his ability to – or his experience with providing counseling, providing services for those with disabilities. And he had a long history from where he had previously worked in the field of counseling. Q: Okay, so Mr. Sutton achieved a Master’s in Counseling in 2011, is that correct, according to his application? A: Yes. Q: And that’s directly related to the position; is that correct? A: Yes, that’s correct. Q: And he had experience as a master’s level therapist? A: Yes. Q: Is that accurate, according to the application? A: Yes. He worked for Florida Therapy as a master’s level therapist, where he was expected to provide counseling, psychotherapy to children, adults and their families, but doing so on an independent basis. That demonstrated he was very flexible, detailed oriented and [had] the ability to function independently. Because she was Ms. Spradlin’s supervisor at the time, Ms. Gilbert acted as her reference and did not recommend her for a senior counselor position. In explaining her reasoning, Ms. Gilbert testified that: Ms. Spradlin was difficult to work with and she was very negative. She had several participant complaints during the span of [] that year. In her first year coming in, she was very challenging, she did not want to accept constructive criticism from me as the unit supervisor. She did not want very – she wanted very little feedback from me based on her performance. Several participant complaints, calling me directly, contacting the ombudsman, faxing me complaints based on their interaction with Ms. Spradlin, how they felt that they were being treated unfairly, they did not agree with her tone from time to time. She was not at all culturally sensitive to some of our participants. She was insubordinate. She would – there were times she would just leave the unit because things – conditions were unfavorable to her. Ms. Gilbert submitted her recommendation to the Department’s area director, and Mr. Sutton was ultimately offered a senior counselor position. Mr. Sutton is currently the supervisor of the Marianna unit. There is no persuasive evidence that Ms. Spradlin was not promoted because of her race or any animus from Ms. Gilbert. The interview panel, consisting of two Caucasians, had legitimate, nondiscriminatory grounds for concluding that Ms. Robinson and Mr. Sutton were more qualified for the openings. In short, the greater weight of the evidence demonstrates that there was no unlawful employment practice associated with the Department’s selection of applicants for the two openings discussed above. In May of 2016, Ms. Spradlin applied for another senior counselor position in the Marianna unit. The interview panel for this opening consisted of Ms. Gilbert and two other Department employees, Evelyn Langmaid and Rebecca Stevens. Ms. Langmaid and Ms. Stevens are Caucasian. Ms. Gilbert did not supervise Ms. Langmaid or Ms. Stevens, and she did not attempt to influence their decision-making. Georgia Britt received the highest score from the interview panel and was offered the senior counselor position. Ms. Langmaid described Ms. Britt’s interview as follows: She just came in and every answer we’d or every question that we gave her she was just right on with the answers and [was] hitting the points on the – because we have sort of like a little sheet that we can look for certain points that we’re looking for answers, and she was just right on every point, and was very, very knowledgeable of what was going on. Ms. Spradlin had obtained a certified rehabilitation counseling certification in October of 2014, and Ms. Britt lacked that certification. However, Ms. Britt’s other credentials bolstered her application. For instance, she has a bachelor’s degree in elementary and special education and a master’s degree in counseling. Ms. Britt also had relevant work experience. When she applied for the senior counselor position, Ms. Britt was employed at Sunland as a behavior specialist working with adults with developmental disabilities. Ms. Britt wrote in her application that she had been able to “work with all different types of individuals at all intellectual levels” via her position at Sunland. Prior to working at Sunland, Ms. Britt had worked in a children’s psychiatric hospital in Dothan, Alabama. That position also gave her an opportunity to work with individuals from diverse backgrounds. Ms. Britt wrote on her application that her position at the hospital required her to engage in some counseling and that she had to use counseling skills in order to obtain psychiatric histories and other information. Ms. Britt’s interview bolstered her application. According to Ms. Langmaid, Ms. Britt “blew it out of the water. She was fantastic on the interview.” Ms. Gilbert was also very complimentary of Ms. Britt’s interview: Q: What about Ms. Britt stood out to you and the panel? A: Her ability to respond to the questions as they were being asked. At that time, we were transitioning to where we were asking more emotional [intelligence] questions where – to identify a counselor’s ability to emotionally manage cases and refrain from being emotionally involved with that case. So she answered the questions. It’s on ones that can give a thorough answer based on the circumstance that occurred, the actions that took place and the results of the question. Q: Okay. A: She was really, really thorough with her answers. There is no persuasive evidence that Ms. Spradlin did not receive the promotion because of her race or due to any animus from Ms. Gilbert. The interview panel, consisting of two Caucasians, had legitimate, nondiscriminatory grounds for concluding Ms. Britt was more qualified for the opening. In short, the greater weight of the evidence demonstrates that there was no unlawful employment practice associated with the Department’s selection of Ms. Britt. Findings Regarding Ms. Spradlin’s Hostile Work Environment Allegations Ms. Spradlin made several allegations during the final hearing that she was subjected to a hostile work environment during her time with the Marianna unit.2/ For example, in October of 2010, Ms. Spradlin exposed at least part of her posterior to a coworker in the Marianna unit in order to demonstrate the severity of a sunburn. Ms. Gilbert did not learn of that incident until another incident was reported to her on May 2, 2011. That day, Ms. Spradlin was seated in an office within the Marianna unit when a female coworker got very close to Ms. Spradlin and “twerked” in her face. Ms. Spradlin states that she placed her hands on the coworkers posterior and playfully pushed her away. However, the coworker reported to Ms. Gilbert that Ms. Spradlin had pinched her posterior. Upon learning of both incidents, Ms. Gilbert discussed them with Ms. Spradlin and conferred with the Department’s labor relations unit on formulating a proper course of action. With input from the labor relations unit, Ms. Gilbert issued a counseling memorandum to Ms. Spradlin on October 4, 2011.3/ The counseling memorandum4/ read in pertinent part as follows: You are being issued a Counseling Memorandum for your violation of Rule 60L- 36.005(2)(f)(1), Florida Administrative Code (F.A.C.), Conduct unbecoming a public employee. On October 12, 2010, you signed the Department’s Acknowledgement Form stating you received copies of the policies and rules of the Department. Please be aware that you are expected to abide by all Standards of Conduct as stated in 60L- 36.005, F.A.C. On May 2, 2011, you violated the following rule and policy: Rule 60L-36.005(2)(f)(1), F.A.C., requires that “Employees shall conduct themselves, on and off the job, in a manner that will not bring discredit or embarrassment to the state. Employees shall be courteous, considerate, respectful, and prompt in dealing with and serving the public and co-workers.” On May 2, 2011, it was reported by one employee that you pulled your pants down exposing your buttocks and “mooned” that employee. Another employee informed me that on that same day you pinched her on her buttocks. After I was told about these incidents that day, I counseled you and informed you that this was inappropriate behavior and it was explained that your actions were unacceptable. This type of conduct is not conducive to a satisfactory work environment. Your conduct has adversely impacted the morale and efficiency of your unit and the Department, is detrimental to the best interests of the state and Department, and adversely affects your effectiveness with the Department, as well as your ability to continue to perform your job. This behavior must cease immediately. Should you continue conduct unbecoming a public employee, disciplinary actions, up to and including dismissal may be taken. Ms. Spradlin signed the counseling memorandum on October 4, 2011, and added the following comments: These two incidents happened on [sic] different persons. The incident w/ “mooning” was with [a] coworker after I incurred a severe sunburn. It was done only to show my burns not to offend her. She sobbed – I was not wearing pants – skirt instead. On the second occasion w/co-worker E.R. she put her buttocks in my face, playing around, & I pinched it as if to express my willingness to play as well. It was provoked – not done in an offensive manner. I understand that this type of behavior is not accepted in my work environment. They were done in a playful uplifting manner, not intentional. However, I will refrain from this behavior as I have obviously offended my colleagues. Another allegation of disparate treatment concerned an incident with a Department client named B.H., who Ms. Spradlin assisted with enrolling in nursing school. B.H. arrived at the Marianna unit one day without an appointment and reported that he wanted to do something other than nursing. Ms. Spradlin asserts that B.H. got aggressive when his requested changes could not be accomplished immediately. Ms. Spradlin further asserts that she became afraid, threatened to call 9-1-1, and managed to get past B.H. and into the hallway outside her office. Ms. Gilbert heard the commotion and called the police. By the time the police arrived at the Marianna unit, B.H. was very calm, and Ms. Gilbert concluded there had been no need to call law enforcement. While Ms. Spradlin asserts that she became an object of ridicule in the Marianna office for overreacting, Ms. Gilbert asserts that she was ridiculed for failing to give the address of the Marianna office when she called 9-1-1. As another example of disparate treatment, Ms. Spradlin cites an incident on November 14, 2013, involving a cigarette butt. Ms. Spradlin was in Ms. Gilbert’s office and dropped a cigarette butt into a trashcan. According to Ms. Spradlin, Ms. Gilbert demanded that she remove the cigarette butt and forced Ms. Spradlin to search through used tissues for the cigarette butt. Ms. Gilbert acknowledged that she asked Ms. Spradlin to remove the cigarette butt from the trashcan, but she credibly denied berating Ms. Spradlin or yelling at her. According to Ms. Gilbert, Ms. Spradlin was able to quickly remove the butt from the trashcan and was not upset about having to do so. Ms. Spradlin made several other allegations about how Ms. Gilbert gave African-American employees in the Marianna unit preferential treatment. For example, Ms. Spradlin alleges that she was required to handle more cases and incur more travel than her African-American coworkers. With regard to her travel reimbursements, Ms. Spradlin alleged that Ms. Gilbert refused to account for all the miles she traveled. Ms. Spradlin further asserts that Ms. Gilbert subjected her to disparate treatment by requiring her to maintain more documentation of her daily activities, inundating her with e-mails inquiring about the status of her work, and being less lenient regarding Ms. Spradlin’s use of flex and leave time. Ms. Gilbert testified that she has never denied a request for annual leave and that she approved the majority of Ms. Spradlin’s requests for flex time, even though Ms. Spradlin did not follow the proper procedure for making such requests. As for the other allegations mentioned above, Ms. Gilbert credibly testified that she did not subject Ms. Spradlin to any disparate treatment. Finally, Ms. Spradlin alleges that Ms. Gilbert unfairly administered a system by which counselors within the Marianna unit shared their successful cases with African- American counselors who had fewer successful cases. This system was implemented because counselors within the Marianna unit were expected to have a certain number of successful cases. Ms. Gilbert credibly denied that the system was administered unfairly: Q: Ms. Gilbert, do you ever ask counselors to donate their successful cases or case numbers to other counselor? A: I never asked counselors specifically to do that. I did discuss it with the unit, with our team as an option. Q: Okay, and why would that be an option they may want to do? A: Well, the way Vocational Rehabilitation operates is a person has to be on their job a minimum – a minimum of three months, okay, 90 days, to consider that person as successfully rehabilitated. And that was a measurement. That was an expectation on each counselor’s performance evaluation, that they had to get so many successful rehabs within one year. So someone that’s being hired and coming to Vocational Rehabilitation in the middle of the year, they don’t have that opportunity to monitor that person for 90 days, if they don’t already have someone that’s in that employment status ready to begin monitoring. So it’s difficult. But I did not want that to be a negative reflection of a counselor that’s really trying and that’s working their caseload and trying to get their successful rehabs. So I would ask counselors once they’ve received all of their rehabs and they close enough people successfully that allows them to get the most maximum score that they can get on their evaluation, I would ask them if they wanted to, share those rehabs with someone that’s probably a new counselor or that’s just having a difficult time with obtaining their successful rehabs. Q: Okay. And so Mr. Sutton’s first year, might he have received some successful numbers donated to him from other counselors? A: That is a possibility. Q: Okay. Did Ms. Spradlin ever receive any successful numbers donated to her when she had a lower number? A: Yes. * * * Q: Okay. And so that number of successes or successful rehabilitations is important to counselors? A: Absolutely. Q: Because they are – are they evaluated on that each year in their yearly performance evaluation? A: Yes. Each level of counselor, if you’re an entry-level counselor, your first year you may be expected to get five. Those numbers are prorated. So the cutoff period is last business day of June, so if you have a new counselor that starts in February or March, they’re at a disadvantage, they don’t have the time. Time works against them. But if they are involved with their cases and they are trying to work their cases, I felt that it was only reasonable to assist them. * * * Q: Okay, so you said that Ms. Spradlin would have received a donation of successful cases maybe early on in her career? A: Yes. Q: Did she donate cases once she became a more proficient counselor? A: I’m pretty sure she did. Q: And did you specifically ask her to donate cases to any particular employee? A: No. Ms. Spradlin resigned from the Department on August 10, 2016. There is no sufficiently persuasive evidence to support Ms. Spradlin’s disparate treatment claims. The greater weight of the evidence demonstrates that Ms. Spradlin was not subjected to any disparate treatment during her tenure in the Marianna unit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing Petitioner’s Petition for Relief. DONE AND ENTERED this 24th day of July 2018, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL 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 24th day of July 2018.
The Issue Whether the subject Endorsement to an HMO benefit contract language is ambiguous and, if so, whether the subject subscriber is entitled to additional benefits because of the ambiguity.
Findings Of Fact At all times pertinent to this proceeding, T. C. was enrolled as a participant in the group HMO contract issued by Petitioner to a construction company for the benefit of its employees and their eligible dependents. The HMO contract consisted of a Group Health Services Agreement, a Member Handbook, and any endorsements to either document. The Member Handbook and an Endorsement to the Member Handbook in September 1999 are the documents pertinent to this proceeding. In those documents, Petitioner is referred to as HOI. Prior to September 1999, paragraph 1.08 of the schedule of benefits section of the Member Handbook (page 42) provided, in pertinent part, as follows. 1.08 Short-term physical, speech, or other therapies designed to correct functional defects which remain after a catastrophic illness or crippling injury, . . . when medically appropriate for the treatment of a Condition, provided that significant improvement of the Member's Condition, as determined by the Medical Director of HOI, is expected within two months from the first date of treatment. This benefit is limited to a maximum of two months of treatment per Member per Calendar Year. The subject HMO contract was amended in September 1999 by the Endorsement styled "Endorsement: Rehabilitation Services (85999.459/99SR)" 3/ provided, in pertinent part, as follows: All prior references to short-term physical, speech, or other therapies in the Group Health Services Agreement and/or Member Handbook and any Endorsement attached thereto is [sic] hereby deleted and replaced with the following new subsection entitled Rehabilitation Services: Rehabilitation Services Prescribed short-term inpatient and outpatient rehabilitation services [are] limited to the therapy categories listed below. In order to be covered: (1) HOI must review, for coverage purposes only, a Rehabilitation Plan submitted or authorized by the Member's 4/ Primary Care Physician; (2) HOI must agree that he Member's Condition 5/ is likely to improve significantly within 62 days from the first date such services are to be rendered; (3) such services must be provided to treat functional defects which remain after an illness or injury; and (4) such services must be Medically Necessary 6/ for the treatment of a Condition. Rehabilitation Plan means a written plan, describing the type, length, duration, and intensity of rehabilitation services to be provided to a Member with rehabilitation potential. Such a plan must have realistic goals which are attainable by the Member within a reasonable length of time and must be likely to result in significant improvement within 62 days from the first date such services are to be rendered. The Rehabilitation Plan must be renewed every 30 days. Outpatient Outpatient rehabilitation services are limited per Member per Condition to the number of Medically Necessary rehabilitation services which are received by the Member within the consecutive 62-day period which immediately follows the first date that the Member begins such services. Outpatient rehabilitation services are limited to the therapy categories listed below: Speech Therapy: . . . Physical/Occupational Therapy: Services of a Physical Therapist or Occupational Therapist or Massage Therapist for the purpose of aiding in the restoration of normal physical function lost due to illness, injury, stroke or a surgical procedure while this coverage was in force. In order for Physical Therapy, Occupational Therapy, or massage therapy to be covered under this provision, such services must be part of an approved Rehabilitation Plan and provided by a provider licensed to render such services. Cardiac Therapy: . . . Inpatient Rehabilitation services of the therapy categories described above provided during a covered inpatient confinement will be covered for the duration of the confinement. T. C. was injured in a fall on December 31, 1999. He sustained a fracture of his left proximal humerus with neurovascular compromise. He underwent surgery to reduce the fracture at St. Mary's Medical Center in West Palm Beach where he remained hospitalized until his discharge on January 10, 2000. Upon discharge, his physicians recommended and prescribed a Rehabilitation Plan which provided for physical therapy on Tuesdays and Thursdays of each week. This Rehabilitation was reviewed and approved by Petitioner, effective January 31, 2000. T. C. began receiving rehabilitation services on Thursday, February 10, 2000, from a provider known as Pediatric Therapy. On or about March 24, 2000, Petitioner notified T. C.'s family and Pediatric Therapy that additional physical therapy would not be covered after that date. On Friday, March 24, 2000, T. C.'s mother telephonically filed an expedited grievance with Petitioner requesting coverage for additional physical therapy. As part of her request, she informed Petitioner that although Petitioner's authorization period began on January 31, 2000, T. C. did not commence treatment at Pediatric Therapy until February 10, 2000. Thus, approximately ten days of the authorized period were not utilized. She further informed Petitioner that he had not completed treatment and continued to require physical therapy. Upon review of his treatment dates in relation to the authorization period and consideration of the information provided by his mother, Petitioner approved coverage for a further period of rehabilitation services from Tuesday, March 28, 2000, to April 13, 2000, the date the 62-day period starting February 10, 2000, expired. Petitioner declined coverage for rehabilitation services beyond April 13, 2000, on the basis that the benefits for outpatient therapy under the contract had been exhausted. In its correspondence to T. C.'s mother, Petitioner stated that it was relying on paragraph 1.08, page 42, of the HMO contract. The reference to this provision was an error because the provision had been replaced and superseded by the Endorsement. There was no evidence that T. C.'s family suffered any prejudice because of the erroneous reference in the denial correspondence. The operative language at issue in this proceeding is the language set forth in the Endorsement.
The Issue The issues in these cases for determination are whether Respondent Elham Kharabi, A.P., L.M.T, committed the violations alleged in two Administrative Complaints issued by the Department of Health on March 14, 2005, in DOAH Case No. 06- 4117PL, and on November 8, 2006, in DOAH Case No. 06-4491PL; and, if so, what disciplinary action should be taken against his license to practice acupuncture and his license to practice massage therapy in Florida.
Findings Of Fact The Parties. Petitioner, the Department of Health (hereinafter referred to as the “Department”), is the agency of the State of Florida charged with the responsibility for the investigation and prosecution of complaints involving the practice of acupuncture and massage therapy in Florida. § 20.43, and Chs. 456, 457 and 480, Fla. Stat. Respondent, Elham Kharabi (identified as Elham Kharabi- Moghaddam by the Board of Massage Therapy), A.P., L.M.T, is and was at all times material to this matter, licensed by the Board of Acupuncture as an acupuncturist, having been issued license number 1890 on November 7, 2003, and by the Board of Massage Therapy as a licensed massage therapist, having been issued license number 0013944 on January 29, 1993. Respondent's mailing address of record at all times relevant to this matter is Post Office Box 451342, Miami, Florida 33245. Respondent's clinic is located at 2808 Bird Avenue, Miami, Florida 33133. No evidence that Respondent has previously been the subject of a license disciplinary proceeding was offered. Respondent’s Treatment of Patient U.C. At the times material to this matter, Respondent operated as "Miami’s Clinical of Oriental Medicine" (hereinafter after referred to as the "Clinic"), located in Coconut Grove, Miami, Florida. U.C., a single, 34-year-old mother, visited the Clinic in June 2004 (hereinafter referred to as "Patient U.C."). Patient U.C. visited the Clinic because she was suffering from depression and fatigue and thought that acupuncture might help her. On her first visit Patient U.C. spoke briefly with Respondent and was given a pamphlet. After this first meeting, Patient U.C. called Respondent and made an appointment for treatment. Patient U.C.’s first formal appointment with Respondent was a free consultation which took place on June 29, 2004. During the consultation visit, Patient U.C. completed a Comprehensive Acupuncture Examination form, in which she described her "Major Complaints" as "depression, fatigue, inability to concentrate & focus, lethargy, moody, irritable, too sensitive & emotional." Respondent's Exhibit 3. Patient U.C. also indicated on the form that she had experienced the following "Nuerological" problems: "nervousness, depressed, easily angered, easily irritated, frequent crying, numbness/tingling in limbs, poor coordination, muscle weakness, and feel weak and shaky." She did not, however, mean that she was suffering from all of these problems at the time she competed the form. Rather, she simply listed every symptom she had ever experienced during her lifetime. After Patient U.C. had completed the Comprehensive Acupuncture Examination form, Respondent conducted a patient interview with her, which he memorialized in a Patient Interview form. Respondent’s Exhibit 4. Respondent determined a plan of treatment for Patient U.C., which he memorialized on the Patient Interview form. Respondent's plan of treatment consisted of: "Tui Na, LR3, LI4, SJ5, GB41, Yin Tang, R17." Based on Respondent’s testimony describing these treatments, none required touching of Patient U.C.'s anus or vagina. Respondent completely identified his plan of treatment and there was no testimony indicating that it was inadequate. After the patient interview, Respondent advised Patient U.C. that he could treat her "Major Complaints" with Chinese medicine. Respondent, with Patient U.C.'s agreement, performed a complete massage (while Patient U.C. and Respondent characterized the treatment differently, the procedure involved manipulation of Patient U.C.'s body and will be referred to throughout this Recommended Order as "massage" for ease of reference) and acupuncture on Patient U.C. after their initial discussions on June 29, 2004. Patient U.C. was unclothed, except for her underwear, during the massage. Having experienced a number of massages by male therapists in the past, Patient U.C. felt comfortable receiving the massage from Respondent. On June 30, 2004, Patient U.C. returned to the Clinic to pay for her first visit and future planned visits. On July 6, 2004, Patient U.C. presented to the Clinic for her second appointment. During this visit, she received the same treatment as she had during the first appointment. While at the Clinic, Respondent advised Patient U.C. that she needed treatment on a daily basis and encouraged her to come to the Clinic daily. Respondent told Patient U.C., who was concerned about cost, that she could come in any time and that he would not charge her for her sessions. Patient U.C. declined Respondent's offer and indicated that she would only come for her scheduled paid-for weekly appointments. On July 13, 2004, Patient U.C. went to the Clinic for her third visit, which had been paid for in advance. Patient U.C. complained to Respondent of pain in her jaw and the left side of her buttocks, radiating down her leg. After rubbing or manipulating Patient U.C.'s jaw, Patient U.C. removed her clothing, except for her underwear, while Respondent left the room. When Respondent returned, he began treatment of Patient U.C.’s left buttock. Respondent massaged Patient U.C.'s left buttock, moving his oiled hands rapidly on her buttock while applying heavy pressure. Patient U.C., concerned that her underwear was hampering Respondent's efforts, offered to remove them. Respondent agreed and Patient U.C. removed her underwear. Respondent recommenced his treatment, massaging Patient U.C.'s left buttock rapidly and forcefully. At some point, Patient U.C. felt Respondent remove his finger from her anus. Because Patient U.C. was lying on her stomach at the time and, therefore, was not able to see exactly what had happened, she was cautious in her testimony at hearing. The weight of her testimony, however, proved that, while Patient U.C. was unable to say that she felt Respondent's finger enter her anus, she was able to feel him removing his finger from her anus. After realizing that Respondent had inserted his finger into her anus and then removed it, Patient U.C. was confused and unsure of what to do. Patient U.C. described her feelings at hearing: Q. What did you do when you felt that? A. Nothing. I was shocked. It didn't make sense to me. How could I feel this thing coming out of my butt if I didn't feel it . . . being inserted? I was confused. It just didn't make sense and I though you know it is probably an accident, a mistake because there is oil and he did massage vigorously and it was fast, but I did not do anything. Transcript, Vol. I, Page 61, Lines 16-24. After Respondent completed massaging Patient U.C., he placed acupuncture needles in her buttocks and left the room. Respondent returned a few minutes later and removed the needles. After removing the needles, Respondent had Patient U.C. turn over on her back and he began massaging her right thigh. While massaging Patient U.C.’s thigh, he inserted his finger into her vagina and briefly moved it back and forth several times. Again, Patient U.C. did not respond to Respondent's inappropriate conduct, instead deciding to avoid having "to deal with it." Instead, she "just pretended that it wasn't going on, that it didn’t happen. I just pretended that it didn't happen." Transcript, Vol. I, Page 65. When Patient U.C. did not respond to this second unwanted touching, Respondent removed his finger and returned to appropriate treatment, inserting acupuncture needles in Patient U.C. Following this treatment, Respondent removed the acupuncture needles and left the room. Patient U.C. got up from the treatment table, dressed, and left the clinic without confronting Respondent about putting his finger in her anus and her vagina. Patient U.C. did not confront Respondent because she just wanted to leave the Clinic and pretend that Respondent had not violated her. Events Following Respondent’s July 13, 2004, Treatment of Patient U.C. Patient U.C. went home immediately after her July 13, 2004, visit to the Clinic and called William Parente, her boyfriend at the time. She was unable, however, to tell Mr. Parente what had happened because he was at lunch with other people. After talking briefly with Mr. Parente, Patient U.C. took a shower, ate, and went to work. Later that day, Patient U.C. spoke to Mr. Parente and described the events that had taken place at the Clinic that day. According to Mr. Parente, Patient U.C. was very distraught and, from the sound of her voice, had been crying. During the evening of July 13, 2004, Patient U.C. experienced pain in her anus. The pain had intensified by the next morning. Therefore, Patient U.C. went to the Health Clinic at the University of Miami, where she was a second-year law student. Personnel at the clinic advised patient U.C. to go to the Jackson Memorial Rape Treatment Center (Jackson). On July 14, 2004, at approximately 9:00 a.m., Patient U.C. presented to Jackson for treatment. Patient U.C.'s vagina and pelvic area were examined by a physician, who took a specimen. No lacerations or lesions were found. The specimen was forward to law enforcement. The physician also examined Patient U.C.'s anus. During this examination, Patient U.C. felt an uncomfortable burning pain in her anus. Because of the pain, she asked the physician to discontinue the examination. Although the examination of Patient U.C.’s anus was terminated, a specimen was also obtained from her anus and forwarded to the police. After completion of the examination at Jackson, Patient U.C. was referred to the police and to the Journey Institute for counseling services. Patient U.C. immediately went to the Miami-Dade Police Department to make a report. She also sought assistance from the Journey Institute. Two days after the incident, Patient U.C. also reported the incident to a friend, Luis Yllanes. When Mr. Yllanes spoke to her, Patient U.C. was visibly upset. She trembled when Patient U.C. told Mr. Yllanes the specifics of what occurred in Respondent’s office. On July 19, 2004, Patient U.C. called her psychiatrist, Manuel Rodriguez-Garcia, M.D. Patient U.C. called to request a prescription for medications because she was depressed following the incident. Dr. Garcia prescribed Wellbutrin, an anti-depressant. The Reliability of Patient U.C.’s Recollection. Patient U.C. had been sexually abused over approximately a two-year period by her uncle when she was 16 to 17 years of age. She was also raped by a neighbor in the neighbor's house when she was a teenager. When she reported her uncle's abuse, her family, rather than being supportive, made her feel as if it was her fault. In addition to the sexual abuse she suffered, Patient U.C. was physically and emotionally abused by her brother. Beginning in 1998, Patient U.C. sought the medical assistance of Dr. Garcia, a board-certified psychiatrist. Dr. Garcia treated Patient U.C. from 1998 through March 22, 2005. (Having asserted her psychiatrist-patient privilege in relation to psychiatric records which substantially predate the allegations made in these cases, Dr. Garcia was limited to relating his treatment of Patient U.C. beginning May 30, 2003.) As of May 30, 2003, Patient U.C. was diagnosed as suffering from attention deficit disorder (hereinafter referred to as "ADD") and depressive disorder with anxiety. Patient U.C. was not exhibiting any symptoms of psychosis. ADD is a congenital disorder that makes its sufferer distractible, with poor concentration. Dr. Garcia prescribed Ritalin to Patient U.C. to treat her ADD. He also prescribed Lexapro (an anti- depressant) and Ambien to help Patient U.C. sleep at night. As of September 29, 2003, Patient U.C. continued to suffer from ADD and depressive disorder with anxiety. Patient U.C. told Dr. Garcia during the September 29, 2003, visit that "something is wrong with my brain." She was concerned because she had driven into the parking lot of one store when she had intended to go to another one. Dr. Garcia was not concerned about this incident or her comment. He found that Patient U.C. was not suffering from any dementia, delirium, confusion, disassociative states, or organic deficits and that she was oriented on life's decisions. Finding that Patient U.C. did not have anything "wrong with her brain," Dr. Garcia concluded that she was simply having difficulty concentrating, a symptom of her ADD. Finally, Dr. Garcia found that Patient U.C. was not exhibiting any signs of psychosis as of September 29, 2003. Patient U.C. visited Dr. Garcia’s office again on May 7, 2004. At Patient U.C.’s request, Dr. Garcia wrote her a prescription for Adderall to replace her prescription for Ritalin. Patient U.C. failed to go to her next scheduled appointment with Dr. Garcia on June 29, 2004. Patient U.C. had begun to believe that she was not getting better, despite the medications prescribed by Dr. Garcia. Consequently she had stopped taking those medications (Adderall, Ritalin, and Ambien) two or three months before the July 13, 2004, incident. Patient U.C. did not inform Dr. Garcia of her actions. In addition to suffering from ADD and depressive disorder with anxiety, and the difficulty of raising a child as a single mother while attending law school, Patient U.C. was subjected to a serious of stressful events preceding the July 13, 2004, incident: her mother was diagnosed with a brain tumor, her father was seriously ill, her brother was indicted on criminal charges, and her sister had attempted suicide. Despite Patient U.C.'s medical problems, Patient U.C. was not suffering from Post-Traumatic Stress Disorder (hereinafter referred to as "PTSD") on or before July 13, 2004. Nor did Patient U.C. misperceive the events of July 13, 2004. Those events, as found, supra, were accurately recalled and testified to by Patient U.C. The testimony of Merrysue Haber, Ph.D., suggesting that Patient U.C. suffered from PTSD, and that she may have suffered a PTSD event or "flashback" on July 13, 2004 was not convincing. Dr. Haber's suggestion that Patient U.C. could have misperceived what had actually taken place on July 13, 2004, because of the sexual abuse she had suffered as a teenager, the stress that Patient U.C. was experiencing at the time, and the intensification of her psychological problems when Patient U.C. stopped taking her prescription medications is rejected. Dr. Haber's testimony is rejected for a number of reasons. First, and most importantly, her testimony is rejected because her opinions were inconsistent with those of Dr. Garcia, who did not diagnose Patient U.C. as suffering from PTSD prior to July 13, 2004. During the period that Dr. Garcia treated Patient U.C., he never found her to be suffering from hallucinations or bipolar disorder, or to be exhibiting any signs of psychosis. At no time was there any interaction between Dr. Garcia and Patient U.C. that led him to “think that she could be psychotic, that she could have a delirium or a problem with perception.” Transcript, Vol. II, Page 202, Lines 12 through 16. Dr. Garcia had personally met with Patient U.C. and diagnosed her condition, while Dr. Haber has never spoken to Patient U.C. Having failed to find that Patient U.C. was suffering from PTSD prior to or on July 13, 2004, any suggestion by Dr. Haber that Patient U.C. suffered from PTSD on the critical date is not credited. In further support of these findings, it is noted that Dr. Haber relied, at least in part, on the medical records of Roger Rousseau, M.D., of the Journey Institute, the institution Patient U.C. had been referred to by Jackson personnel. Dr. Rousseau, while diagnosing Patient U.C. with "chronic" PTSD, did not see Patient U.C. until after the events of July 13, 2004. Dr. Haber's reliance on Dr. Rousseau's diagnosis is, therefore, misplaced. Dr. Haber's testimony concerning the possible impact of Patient U.C.'s discontinuation of her medicines prior to July 13, 2004, is also rejected as inconsistent with Dr. Garcia's testimony. Based upon Dr. Garcia's credited testimony, it is found that Patient U.C.'s discontinuance of here medications would not have altered Patient U.C.’s perception of reality. At most, she would merely have experienced a resurgence of the symptoms of her ADD and depression, not psychosis. While Patient U.C. could have experienced an increased difficulty concentrating and her depression may have worsened, she would not have experienced withdrawal symptoms associated with discontinuing her medications and would not have exhibited new symptoms like hallucinations. Finally, even it had been proved that Patient U.C. was suffering from PTSD on July 13, 2004, the evidence proved that it is highly unlikely that she would have continued to insist that events which she supposedly misperceived on July 13, 2004, actually occurred. PTSD is a condition or disorder where a person may experience a variety of signs and symptom, including vivid memories of a traumatic event, an inability to function, anxiety, depression, and hypersensitivity (ultra-sensitivity to stimuli that remind the person of the traumatic event). Persons suffering PTSD may suffer some or all of the foregoing symptoms. Although not common, a person suffering PTSD can relive the traumatic event; experience a "flashback." Even when a person experiences a flashback or relives the traumatic event, the feeling of reliving the event does not last and the person realizes that the event did not actually recur. Dr. Garica gave the example of a combat soldier's reaction to an automobile back-firing. The soldier may flinch, but will quickly realize there is no real danger. Patient U.C. never reported any flashback relating to her sexual abuse as a teenager to Dr. Garcia. Having given birth to a child, she has obviously had sexual relations; she has not had any difficulty being undressed while receiving a massage; and she was not concerned about suggesting to Respondent that she take off her underwear when she realized her underwear was hampering his treatment of her on July 13, 2004. Based upon the foregoing, while it is obvious that Patient U.C. is not without problems, the evidence failed to prove that she was in any way unable to accurately understand and subsequently relate the events of July 13, 2004, as found in this Recommended Order. Respondent's Acupuncture Medical Records. Having denied that he placed his finger in Patient U.C.'s anus or vagina, Respondent obviously did not record any medical justification in his medical record for Patient U.C. for doing so.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered by the Board of Acupuncture finding that Elham Kharabi, A.P., has violated Section 456.072(1)(u), Florida Statutes, by violating Section 456.063(1), Florida Statutes, and Section 457.109(1)(j), Florida Statutes (2004), as alleged in Counts One and Two of the Administrative Complaint; dismissing the allegations of Count Three of the Administrative Complaint; issuing a written reprimand; imposing a fine of $1,000.00; suspending Respondent's acupuncture license for six months; and placing Respondent's license on probation for two years with terms to be set by the Board of Acupuncture; and That a final order be entered by the Board of Massage Therapy finding that Elham Kharabi-Moghaddam, L.M.T., has violated Section 480.046(1)(o), Florida Statutes, by having violated Section 480.0485, Florida Statutes; issuing a written reprimand; imposing a fine of $1,000.00; suspending Respondent's massage therapy license for six months; and placing Respondent's license on probation for a period of two years, with terms to be set by the Board of Massage Therapy. DONE AND ENTERED this 23rd day of July, 2007, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN 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 23rd day of July, 2007. COPIES FURNISHED: Allison M. Dudley Assistant General Counsel Prosecution Services Unit Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 David M. Shenkman, Esquire David M. Shenkman, P.A. 2701 South Bayshore Drive, Suite 602 Miami, Florida 33133 Pamela King, Executive Director Board of Acupuncture and Board of Massage Therapy Department of Health 4052 Bald Cypress Way, Bin C06 Tallahassee, Florida 32399-1701 Josefina M. Tamayo, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Dr. Ana M. Viamonte Ros, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue The issues in this case are whether Respondent committed the allegations contained in the Administrative Complaint, and if so, the penalty that should be imposed.
Findings Of Fact The Parties Petitioner Department of Health has regulatory jurisdiction over licensed psychologists such as Respondent. In particular, Petitioner is authorized to file and prosecute an administrative complaint, as it has done in this instance, when a panel of the Board of Psychology has found probable cause exists to suspect that the psychologist has committed one or more disciplinable offenses. At all times relevant to this proceeding, Respondent was a licensed psychologist in the State of Florida, having been issued license number PY7699. Respondent first became licensed in Florida on March 21, 2008, and has not been the subject of prior disciplinary action by the Board of Psychology. Treatment of C.H. and J.H. As noted previously, the allegations in this cause relate to Respondent's provision of marital therapy to patients C.H. and J.H. In or around May 2010, C.H. decided that it would be beneficial to attend marital (i.e., "couples") therapy sessions with her husband, J.H., to whom she had been married for approximately one year. To that end, C.H. researched nearby providers and thereafter scheduled an office appointment with Respondent. Respondent conducted an intake session with C.H. and J.H. on May 24, 2010. Consistent with standard practice, Respondent asked C.H. and J.H. to complete new client intake forms, which were intended to gather information about the patients' current and previous relationships, family backgrounds, prior mental health treatment, educational backgrounds, and histories of abuse, if any. While J.H. completed the form in its entirety, C.H. refused on the basis that some of the questions were, in her opinion, too personal and insulting. Respondent was surprised by C.H.'s reaction, as no client had ever voiced any objection to the intake questions, which Respondent believed——correctly——were necessary and appropriate. At the conclusion of the initial session, Respondent had significant doubts about whether a viable therapeutic relationship could be forged in light of C.H.'s refusal to complete the intake form, as well as other comments made by C.H. and J.H. that reflected a mistrust of the process. Nevertheless, Respondent and the couple subsequently agreed to a prepaid package of 10 therapy sessions, with each appointment valued at the discounted rate of $140. Respondent's next session with C.H. and J.H. was held on June 15, 2010, during which Respondent suggested, among other things, that the patients would benefit from individual therapy and that J.H.——who had been out of work for over two years——ramp up his efforts to find employment. Needless to say, C.H. reacted negatively to Respondent's advice, as did J.H., who otherwise had been silent during the session. At that, Respondent broached the issue of whether she was a "good fit" for the couple and provided them with the names of two colleagues who offered marital therapy.1/ C.H. and J.H. elected, nevertheless, to continue their professional relationship with Respondent. C.H. and J.H.'s following session with Respondent was conducted on July 2, 2010. During the appointment, the couple complained that they had made no progress in therapy, which prompted Respondent to discuss, once again, the possible termination of their professional arrangement. Respondent also provided, for a second time, C.H. and J.H. with the names of several local practitioners who offered couples therapy. Notwithstanding the discussion of termination, C.H. and J.H. decided to forge ahead with Respondent. The next session was held on July 7, 2010. During the appointment, C.H. and J.H. were largely non-responsive, which caused Respondent to raise, for the third time, the issue of a possible better fit with another therapist. Later in the session, Respondent, in an effort to engage C.H. and J.H. in the process and move the therapy forward, challenged them to explain why they should remain married——a strategy that angered the couple profoundly, but was not expressed until the following visit. C.H. and J.H.'s next office appointment was on July 14, 2010, at the outset of which the couple——who, in Respondent's words, were "pissed off"——demanded an apology and threatened to terminate the therapy. Surprised, Respondent explained that her strategy during the previous session was to elicit a reaction from them regarding the positive attributes of their relationship. Respondent also offered, for the fourth time in as many visits, to terminate the therapy. The couple again decided, however, to maintain their professional relationship with Respondent. After a comparatively uneventful follow-up visit the following week, C.H. and J.H. appeared at Respondent's office on August 2, 2010, for what would prove to be their final session. During the appointment, Respondent was troubled by C.H.'s repeated inquiries about her personal life, notwithstanding Respondent's explanation that the disclosure of such information would not be appropriate. Respondent was also bothered by J.H.'s behavior toward her, which she construed as demeaning. Although Respondent was inclined at that point to terminate C.H. and J.H. as clients, she did not do so because their session had run late (another patient was waiting) and she wished to consider the matter further. Several days later, on August 4, 2010, Respondent took a scheduled vacation, of which C.H. and J.H. had been informed previously. Respondent also advised C.H. and J.H. (as well as her other patients) that she could be reached by telephone or e- mail should she be needed. On August 15, 2010 (two days before Respondent was set to return), C.H. sent Respondent an e-mail, wherein she inquired about the number of sessions that remained in the prepaid package. Later that day, Respondent replied by e-mail that C.H. should check the account statement that had been mailed to her at the end of July or early August. Two days later, on August 17, 2010, C.H. sent another e-mail to Respondent, which read: Yes, I received one statement from you at some point in July. We have had a number of sessions since then, and what I'm asking for is an updated record – namely, how many sessions remain in our prepaid package. Having fully considered the matter of termination during her vacation, Respondent decided, on August 18, 2010, to end her professional relationship with C.H. and J.H. On that date, Respondent sent an e-mail reply to C.H., which provided, in relevant part: Attached is your statement of account. Based on [C.H.'s August 17 e-mail], and in addition to other therapeutic factors, I do not believe we have a viable therapeutic relationship. As such, I think it would be best if we discontinue our work together. Effective today, I am terminating our professional relationship. I am refunding the balance of your account by check. You have used six of the 10 session package, at the full rate of $165 per session, yielding $410 to you. During the final hearing, Respondent testified credibly that she terminated the therapy for a variety of reasons, such as her poor working alliance with the patients, and that she ended the relationship by e-mail because she believed that the patients' reaction to the news would be one of relief: And I had given the matter a lot of thought over two weeks, I discussed this matter a lot with colleagues, and I . . . decided that based on the poor working alliance, the mistrust, the criticism and the later conversations, the email about again the patient telling me she wants to be seen individually when I don't see patients individually and this is already something we discussed about my rules in the first session, and again, micromanaging me and telling me how to provide their therapy for them and again being dissatisfied that I won't see her individually, I decided you know what? This is really -- this can't go on any longer. * * * And then came the question what do I do. Does it make sense to bring them in after not seeing them -- it would have been now two and a half weeks and I hadn't seen them face to face -- just to break up with them, just to say goodbye, just to say come back in but just kidding, don't come back in . . . . Again, I really thought they would be so relieved. * * * So I thought this was going to be . . . thank God you're not making us come in anymore, goodbye, see you later. Final Hearing Transcript, pp. 471-473. Unfortunately for all involved, C.H. and J.H. were not relieved——but rather incensed——by Respondent's notice of termination. On August 19, 2010, J.H. advised Respondent by e- mail that he and C.H. felt "hurt and confused" by the termination and that he did not agree with the manner in which the refund had been calculated (J.H. believed that the "used" sessions should have been valued at the discounted price of $140 per visit, as opposed to Respondent's customary rate of $165). Approximately 15 minutes later, Respondent e-mailed a reply to J.H., wherein she explained that the possibility of termination had been "brewing" over the past several weeks and that she ended the relationship by e-mail (instead of calling) so C.H. and J.H. could both read the message. In addition, Respondent offered a free office visit to discuss the matter. C.H. and J.H. did not avail themselves of the offer of a free office visit, and, from what can be gleaned from the record, had no further communication with Respondent. C.H. and J.H. did, however, receive a refund from Respondent that valued the used sessions at $140——as J.H. had requested. Expert Witness Testimony During the final hearing, Petitioner presented the testimony of Dr. Charles Golden, an expert in the field of psychology, who opined that Respondent departed from the standard of care in two respects: termination of the therapy by a means other than a face-to-face conversation; and her purported failure to provide C.H. and J.H. with appropriate pre- termination counseling——i.e., it did not appear, based on his review of Respondent's records, that Respondent gave C.H. and J.H. the names of other marital counselors. Dr. Golden's opinion is rejected as to both points because it is apparent, based upon the excerpt of his cross- examination testimony quoted below, that he has held Respondent to a "best practice" standard that is more stringent than the minimum level of performance required by law: Q. So how is it that Dr. Shaked practiced beneath the minimum standard? A. By using an email termination with clients she was seeing in face-to-face therapy without properly preparing them and dealing with the psychological issues that arise from termination that have to be anticipated regardless of whether or not you expect them. And the difference here is we don't follow -- we follow the rules of best practice. We do termination face to face, in a face-to-face client not because we always anticipate there will be bad things but because that is the best practice in terms of doing termination. Final Hearing Transcript, p. 282 (emphasis added).2/ Further, Dr. Golden's opinion with respect to the issue of pre-termination counseling suffers from an additional flaw: it assumes that Respondent never provided C.H. and J.H. with the names of other marital therapy providers prior to termination——a premise contrary to Respondent's final hearing testimony, which the undersigned has credited. For these reasons, Petitioner has failed to adduce clear and convincing evidence that the manner in which Respondent handled the termination of C.H. and J.H. fell below the minimum standard of performance. Accordingly, Respondent is not guilty of violating section 490.009(1)(r), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Board of Psychology dismissing the Administrative Complaint. DONE AND ENTERED this 23rd day of May, 2012, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER 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 23rd day of May, 2012.
The Issue The issue in the case is whether the allegations of the Administrative Complaint (as limited by the Notice of Limitation of Issues dated June 15, 2004) are correct, and if so, what penalty should be imposed.
Findings Of Fact At all times material to this case, the Respondent was a licensed mental health counselor, holding Florida license number ME 5853. In approximately July 2001, the Respondent began to counsel a five-year-old female, allegedly the victim of sexual abuse by an uncle, the brother of the child's mother. The Respondent believed, based on information provided by the father, that the uncle resided with the child's mother. The child's father had custody of the child, and the mother had some type of visitation rights. In approximately November of 2001, the Respondent began counseling the child's father and his girlfriend for various family-related issues. Towards the end of 2001 or early 2002, the father and his girlfriend married. Although the Respondent testified at the hearing that the couple "seemed to have plenty of money to do certain things," including personal care and entertainment expenses, she apparently believed, based on what she was told by the couple, that they had financial difficulties. The couple resided in a home owned by the child's father. Apparently based solely on the couple's representations, the Respondent believed that the father was in arrears on house payments. One of the issues addressed in counseling was the father's concern that, were he to lose his house, the child would be returned to the mother's custody, where the uncle resided. Also apparently based solely on the couple's representations, the Respondent believed that the couple wanted to purchase a new house and that they needed $7,000 to buy the house. In March of 2002, the Respondent loaned the couple $7,000. The couple repaid within a few weeks a total of $9,000 to the Respondent. At the time of the $7,000 loan, the clients owed to the Respondent a balance of approximately $3,200 in unpaid professional fees related to therapeutic services provided to them by the Respondent. The Petitioner asserts that the $9,000 repaid to the Respondent included interest charges of $2,000. Petitioner's Exhibit number one is a copy of a document dated March 20, 2002, and apparently notarized on March 21, 2002. The document appears to require that the couple repay to the Respondent by not later than May 16, 2002, a principal amount of $7,000 plus $2,000 in "interest" for a total of $9,000. The genesis of the document is unclear. At the hearing, the wife testified that the document memorialized the agreement between the Respondent and the couple. The Respondent testified that she did not require preparation or execution of any loan documentation. The Respondent testified that the funds received from the couple included repayment of the loan plus payment of $2,000 towards the unpaid professional fees. Based on the candor and demeanor of the witnesses at the hearing, the Respondent's testimony as to the basis for the payment of the $2,000 is credited. Subsequent to the loan and repayment transactions, the therapeutic situation deteriorated between the Respondent and the couple, particularly as to the wife, who began to believe that the Respondent was romantically involved with the husband. The therapeutic relationship between the couple and the Respondent dissolved acrimoniously within a few months after the loan. At the hearing, the Petitioner presented the expert testimony of Dr. Owen Wunderman, a Florida-licensed mental health counselor, and Dr. Andrew Wenger, a Florida-licensed psychologist. Both testified as to the Florida Statutes and as to ethical standards adopted by the American Counseling Association (ACA) applicable to the fact situation at issue in this proceeding. The Respondent presented the expert testimony Dr. Barbara Herlihy, a professor at the University of New Orleans and a licensed professional counselor in Louisiana and Texas. Dr. Herlihy has been involved with the adoption of the existing ACA standards and has written texts related to the issue of dual relationships in counseling situations. As identified during the hearing, the ACA standards address the issue of dual relationships as follows: Avoid when possible. Counselors are aware of their influential positions with respect to clients and they avoid exploiting the trust and dependency of clients. Counselors make every effort to avoid dual relationships with clients that could impair professional judgment or increase the risk of harm to clients. (Examples of such relationships include, but are not limited to, familial, social, financial, business, or other close personal relationships with clients.) When a dual relationship cannot be avoided, counselors take appropriate professional precautions such as informed consent, consultation, supervision, and documentation to ensure that judgment is not impaired and no exploitation occurs. Both Dr. Wunderman and Dr. Wenger testified that by making the $7,000 loan to her clients, the Respondent entered into a dual relationship (counselor and creditor) with the couple, and that in doing so, the Respondent failed to meet minimum standards of performance in professional activities when measured against generally prevailing peer performance, as well as violated the ACA standards. Dr. Wunderman testified that there was a meaningful risk of non-repayment of the $7,000 loan, given that the clients were several thousand dollars in arrears in paying professional fees, thereby increasing the likelihood that the therapist/creditor would have to take legal action against the clients for repayment, an action likely to impair professional judgment or increase the potential risk of harm to the clients, whether or not legal action was actually initiated. Dr. Herlihy testified that she did not regard the fact situation at issue in this case as a dual relationship because she viewed it as a "one-time" short-term loan and that there was no evidence that the counseling relationship between the parties was harmed. Dr. Herlihy testified that she viewed the situation as a "boundary crossing." Dr. Herlihy acknowledged that short of loaning a client a small sum for cab fare, she was unaware of any mental health counselor making a loan to a client such as occurred in this case. She also acknowledged that she was not familiar with professional performance standards as specifically applied to Florida practitioners. The weight of the evidence establishes that Drs. Wunderman and Wenger are more familiar with the minimum standards of professional performance as measured against generally prevailing peer performance within the State of Florida. The testimony of Dr. Wunderman and Dr. Wenger is credited.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a final order finding the Respondent has violated Subsection 491.009(1)(r), Florida Statutes (2002), and imposing a fine of $1,000, a reprimand, and a one-year period of probation. DONE AND ENTERED this 13th day of January, 2005, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 13th day of January, 2005. COPIES FURNISHED: Ellen M. Simon, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 William N. Swift, Esquire William N. Swift, Attorney at Law 901 Southwest Martin Downs Boulevard Suite 208 Palm City, Florida 34990 Susan Foster, Executive Director Board of Clinical Social Work, Marriage and Family Therapy & Mental Health Counseling Department of Health 4052 Bald Cypress Way, Bin C-08 Tallahassee, Florida 32399-1701 R.S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701 Quincy Page, Acting General Counsel Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701
Findings Of Fact On an undisclosed date, respondent, Department of Health and Rehabilitative Services (HRS), gave notice, through the District 10 office in Fort Lauderdale, Florida, that it would receive bid proposals from those persons interested in providing contractual services under the intensive crisis counseling program (ICCP) to Broward County clients. Under the program HRS provides grant funds to the successful bidder who then renders mental health services to selected HRS clients in Broward County. The request for proposal (RFP) contained the specific requirements of the program but was not introduced into evidence. Two responses to the PEP were received by HRS. They were filed by petitioner, Center for Family and Child Enrichment (CFCE), and Nova University (Nova). Neither bid proposal was offered into evidence. CFCE is a non-profit corporation with offices in Miami and Opa Locka, Florida. For the two years ending June 30, 1985 it held the contract with HRS to provide intensive crisis counseling services in Broward County. A selection committee comprised of five HRS employees was formed to evaluate the two bids and to determine which organization better met the PEP's requirements. This evaluation process was conducted during a meeting on May 13, 1985. At that time the committee members rated each bidder individually and their total points were then added together. Nova ranked highest with 432 points while CFCE finished second with 307 points. There is no evidence that the committee was biased or that the review was conducted in a flawed or improper manner as alleged by CFCE. At hearing CFCE contended that it was better qualified than Nova because it submitted a lower program cost, and because it could commence operations under the contract at an earlier date than could Nova. It also contended that Nova could not meet all requirements of the contract. However the two bid proposals contained identical program costs. Moreover, even though it projected a later starting date, Nova proposed to serve 122 client families while CFCE's proposal indicated that only 51 families would be served which was less than that required by the RFP. There was no evidence that Nova could not meet the program requirements, or that CFCE submitted a superior proposal. There is also no evidence that HRS "withheld" information from CFCE during the bidding process as alleged in the request for hearing. 2/ Therefore, it is found that the contract was properly awarded to Nova.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Center for Family and Child Enrichment's request to be awarded the 1955-86 contract for intensive crisis counseling service in Broward County be DENIED, and that the contract be awarded to Nova University. DONE and ORDERED this 15th day of January, 1986, in Tallahassee, Florida. Hearings Hearings 1986. DONALD R. ALEXANDER Hearing Officer Division of Administrative The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative this 15th day of January,
The Issue The issue for consideration in this hearing is whether Respondent’s license as a psychologist in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein the Board of Psychology was the state agency in Florida responsible for the licensing and professional discipline of psychologists in Florida. Respondent is and has been licensed as a psychologist in Florida and is subject to the jurisdiction of the Board of Psychology. During the period April 11, 1995, through August 7, 1995, Respondent was employed as a psychologist at the University of South Florida Counseling Center for Human Development. In that capacity, Respondent saw the Complainant, K.R., on several occasions and established a psychologist-client relationship with her. At the initial visit of K.R. to his office, Respondent conducted an initial intake evaluation of her and, in his client notes, defined the goal of his continued treatment of her as being to assist Ms. K.R. in stabilizing her depression; and to clarify her needs and patterns with regard to her career and relationships. Upon completing the intake evaluation of K.R., Respondent referred her to himself as treating therapist, and between the initial meeting and the end of August 1995, met with her approximately thirteen times. Review of Respondent’s notes regarding his sessions with K.R. reveals that they discussed her relationship with her parents; her relationships with men; her ability to deal with her emotions, her anxiety, and depression. K.R. relates that during many of their sessions, Respondent told her she had nice legs and was very sexy. He also told her of his personal life, including his dissatisfaction with his marriage, and it appears that he met with her outside his professional office on a purely social basis. K.R. claims Respondent told her not to tell anyone about their friendship outside the clinic. The relationship between Respondent and K.R. culminated in their engaging in sexual intercourse which resulted in her becoming pregnant. The pregnancy was subsequently aborted. As a result of their relationship, K.R. filed a complaint against Respondent with the Board of Psychology relating the sexual nature of their relationship. Subsequent to the filing of K.R.’s complaint against Respondent, and the Agency For Health Care Administration’s (Agency) filing of an Administrative Complaint against him, the Agency deposed Dr. George J. Rockwell, Jr., a retired psychologist with a specialty in school psychology. Dr. Rockwell did not meet with Respondent or speak with him in any capacity. He examined the file collected in this case regarding the allegations against Respondent, and from his review of all the material, concluded that Respondent had established a psychologist/patient relationship with K.R. This relationship involves trust and the generation in the patient of a basic belief that the psychologist has the skills and knowledge that would assist the patient in dealing with whatever problems he or she has. The patient develops the ability to talk to a non- critical, non-judgmental person in an effort to help him or her deal with their problems or concerns. The psychologist has the responsibility to create an emotionally safe environment for the patient. In this process the patient is often made vulnerable. The patient must be open with the psychologist and feel comfortable in sharing emotions and incidents which he or she would most likely not be able to share with others. It is without question a special relationship, and in Dr. Rockwell’s opinion, it is unlikely that a patient will work with a psychologist and not form that special relationship. This special relationship places upon the psychologist special responsibilities toward the patient. These include abiding by the laws and rules relating to the practice of psychology; having respect for the patient; and keeping all matters confided by the patient confidential. In addition, the psychologist has the responsibility to comport himself or herself in a manner so as to maintain a professional relationship and distance with the patient. Specifically, sexual relationships between a psychologist and his or her patient are normally prohibited as being beyond boundaries that should not be crossed. It is the psychologist’s responsibility to set the limits on behavior so as to prevent an inappropriate relationship from developing. This applies even if the patient initiates sexual advances. These advances would not excuse the psychologist from professional responsibility toward the patient. In the event the psychologist detects what appear to be inappropriate sexual advances from the patient, the psychologist had a duty to discuss this with the patient; talk about the nature of the psychologist/patient relationship; and explain that such a relationship would not be appropriate. The constrictors on the professional are even more specific in the event the psychologist finds himself or herself sexually attracted to the patient. Under no circumstances should the professional act on those feelings, but should evaluate the situation to ensure that those feelings are in no way interfering with the therapeutic relationship. There is absolutely no situation which Dr. Rockwell can think of in which it would be appropriate for a therapist to engage in sexual relations with a patient, either during or after termination of a therapy session. Inappropriate sexual contact between a therapist and a patient can have severe and deleterious effects on a patient. These might include feelings of guilt and depression, based on the patient’s belief that the inappropriate behavior was his or her fault. The patient might also feel embarrassment and be reluctant to undergo further treatment. Further, the patient would most likely lose trust in the involved therapist and potential other therapists. Dr. Rockwell concluded that notwithstanding Respondent’s contention that he saw K.R. solely for the purpose of career counseling, and at no time entered a psychologist/patient relationship with her, Respondent’s clinical notes regarding K.R. clearly indicate a professional psychologist/patient relationship was formed. An independent review of the records supports that conclusion, and it is so found. Even were the counseling limited solely to career counseling, it would still constitute counseling, the conduct of which is covered by the standards of the profession. Here, however, Dr. Rockwell is convinced that Respondent’s conduct toward K.R., as alleged, constituted sexual misconduct in the practice of psychological counseling which fell below the minimum standards of performance and professional activities when measured against generally prevailing peer performance. It is so found.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Psychology enter a final order in this matter finding Respondent guilty of all Counts in the Administrative Complaint, and revoking his license to practice psychology in the State of Florida. DONE AND ENTERED this 3rd day of March, 2000, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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 3rd day of March, 2000. COPIES FURNISHED: Maureen L. Holz, Esquire Williams & Holz, P.A. 211 East Virginia Street Tallahassee, Florida 32301 O. C. Allen, Qualified Representative 314 West Jefferson Street Tallahassee, Florida 32301 Angela T. Hall, Agency Clerk Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1703 Dr. Kaye Howerton, Executive Director Board of Psychology 1940 North Monroe Street Tallahassee, Florida 32399-0750 Amy M. Jones, Acting General Counsel Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1703
The Issue Whether the Petitioner is entitled to an exemption from disqualification from employment in a position as a “caregiver?”
Findings Of Fact The Sunland Center in Marianna, Florida is a residential facility operated by the Department of Children and Families (DCF), serving developmentally disabled adults. The Petitioner, Larry Wyatt, worked at Sunland Center as a Vocational Instructor II, supervising and training a group of developmentally disabled clients. After he got involved in the events which lead to his disqualification from such a position of special trust he was demoted, but is still employed at Sunland Center in a position where he does not have client contact. The Respondent is an Agency of the state of Florida charged, in pertinent part, with screening the criminal and adult abuse records of persons employed in positions of special trust, such as the supervision of a group of developmentally disabled clients. Upon learning of an altercation involving the arrest of the Petitioner for assault (domestic violence) the department disqualified him from employment in a position of special trust working with children or developmentally disabled clients under relevant law. On the evening of August 18, 1995, the Petitioner became embroiled in an argument with his wife. The Petitioner had in his possession a six-pack of beer and had consumed two cans of beer, leaving four unopened. At some point during the course of the argument Mrs. Wyatt attempted to leave their home and go to her mother’s home in her car. Mr. Wyatt remonstrated with her to try to get her not to leave and when she refused to stay he got into his vehicle and bumped her car slightly with his vehicle. He did not actually ram her car with any great degree of force, but merely slightly bumped her car at a very slow speed, with not enough force to cause any damage or injury. Both protagonists were angry and shouting at each other. No blows or physical touching occurred. In an angry state of mind, Mrs. Wyatt telephoned the Jackson County Sheriff’s Department who dispatched Deputy David Edmundson to the scene. On arriving at the scene, Deputy Edmundson spoke to Mrs. Wyatt, who asked him to stay with her until she left the premises or else to require Mr. Wyatt to leave. She specifically asked that he not be arrested. Mr. Wyatt began again yelling at Ms. Wyatt whereupon the Deputy told him to desist. He started yelling and arguing with the Deputy and the Deputy determined that it was best to place him under arrest and remove him from the scene. He placed him under arrest for “domestic violence” and “resisting arrest without violence.” He took the Petitioner to the Jackson County Jail. Several hours later Deputy Edmundson visited Mr. Wyatt in the holding cell at the jail. Mr. Wyatt then apologized to the Deputy for his conduct at the scene of the incident and the Deputy explained to Mr. Wyatt that, at that point, he was under an injunction and prohibited from returning to his home, unless the injunction was removed by the court. Mr. Wyatt then inquired if he could retrieve his belongings from his home and the Deputy explained he could make one trip home for that purpose but would need to be accompanied by a law enforcement officer and that he would need to make arrangements with the Jackson County Sheriff’s Department in order to do so. The following day, on August 19, 1995, Mr. Wyatt went to his home in the company of his father, without the assistance or accompaniment of a law enforcement officer and without making arrangements with the sheriff’s department for the trip. He committed no improper behavior when he arrived at home, retrieved his belongings and left. Upon the discovery by the authorities that he had made the trip without proper authorization the Petitioner was again placed under arrest. On August 21, 1995, he pled guilty to “domestic violence” (presumably assault), “resisting arrest without violence” and “violating an injunction.” As a result of that guilty plea he was disqualified from his employment as a Vocational Instructor II at Sunland Center. The court did not adjudicate him guilty. Rather adjudication was withheld and he was placed on probation with conditions. A condition of his probation was that he attend Alcoholics Anonymous meetings and that he and his wife attend marriage counseling sessions. Mr. and Ms. Wyatt attended the marriage counseling sessions for twenty-seven weeks. They both testified that the therapy was very helpful to them. They learned how to control their anger and how to resolve disputes without destructive argument. Mr. Wyatt attended Alcoholics Anonymous meetings as well and found them helpful. His unrefuted testimony indicates that as to the Alcoholics Anonymous therapy and the marriage counseling sessions that both efforts were helpful in helping him to understand the role his failure to control anger and use of alcohol combined to harm the stability of his marriage and his relations with his wife. In summary, both Mr. and Mrs. Wyatt testified in a believable way, without refutation, that their marriage had greatly improved as a result of the catharsis engendered by Mr. Wyatt’s arrest under the above-found circumstances and the resultant marriage counseling therapy and his attendance at Alcoholics Anonymous counseling sessions. They have observed that they do not argue as they once did, that their children seem to respect them more, and they get along better among themselves as well. Their family life is strengthened and more stable as a result of their experience. Leon Hussey, the Petitioner’s immediate supervisor at Sunland Center, Mr. Fears, his father-in-law and co-worker, and Tracy Clemmons, the Superintendent of Sunland, all testified to the effect that the Petitioner had been an exemplary employee with a flawless record for sixteen years. He was classified as an above average employee by his supervisor and the superintendent. They noted that he was particularly skilled at handling difficult clients at Sunland in his work as a vocational therapist and that clients felt respect and great affection for him. They have even asked on occasion when he would “be back” to occupy his old position in working with them. Tracy Clemmons and Leon Hussey both testified that the Petitioner was an excellent employee and his return they regarded as essential in order to adequately deal with difficult clients and that it would be “a shame” if he were not permitted to return to the duties he performed so well in dealing with the developmentally disabled clients in question. In summary, although the incident occurring between Mr. Wyatt and his wife may be classified as assault (“domestic violence”), he testified, as did she, without refutation, that he never struck her and that the car bumping incident in their yard was the result of his insufficiently controlled anger at her but, fortunately, was not of a nature to cause any injury to his wife or the other vehicle, and was not so intended. Under the totality of the circumstances, considering especially the efforts Mr. Wyatt has made, with his wife’s cooperation, to rehabilitate himself and to learn to control his anger and other impulsive behavior and the lack of any similar altercations since the one in question, it is found that the Petitioner has adequately rehabilitated himself in order to justify the grant of an exemption. This finding is corroborated and supported by the testimony of the witnesses from his employment life who uniformly described his exemplary record as a skilled, caring, compassionate trainer of the developmentally disabled persons in his charge. They desire his return to his former position immediately, even with knowledge of the circumstances of his recent disqualification. The testimony adduced by the department did not establish a lack of rehabilitation on the part of Mr. Wyatt. The testimony adduced by the Department at most can be characterized as a conclusory statement of position that, given the circumstances of the incident between Mr. Wyatt and his wife, a similar incident between them some two years previously, and another incident involving a driving violation concerning an expired tag, drivers license and “leaving the scene of an accident,” to which a guilty plea was entered, that Mr. Wyatt has not shown adequate rehabilitation. That testimony is rejected as not being as substantial as that in support of the above findings of fact establishing the Petitioner’s adequate rehabilitation. No adverse incidents have occurred since the one causing this proceeding. The testimony of the Petitioner’s wife and the other witnesses is accepted over that of the Department’s witness, Ms. Hanson. They had more opportunity to observe the Petitioner’s personality and behavior since the incident in question and more of an opportunity to learn of his reputation in the community for behavior since the incident, which is consistent with his rehabilitation, which their testimony establishes, when considered in its totality with the other circumstances proved in this case.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the candor and demeanor of the witnesses, the evidence of record and the pleadings and arguments of the parties it is therefore, RECOMMENDED that a final order be entered awarding Larry Wyatt, the Petitioner herein, the requested exemption.DONE AND ENTERED this 1st day of May, 1997, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 1st day of May, 1997. COPIES FURNISHED: Thayer Marts, Esquire Post Office Box 761 Marianna, Florida 32447 John R. Perry, Esquire Department of Children and Families 2639 North Monroe Street, Suite 252A Tallahassee, Florida 32399-2949 Gregory D. Venz, Agency Clerk Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard A. Doran, Esquire Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
