Findings Of Fact In December, 1984, Petitioner, a black female, began employment with the Respondent. The Petitioner was hired for two positions. In one position, the Petitioner was employed as a (40 percent FTE) Cook, working 40 percent of a full time 40 hour work week, or 16 hours weekly. In the other position, the Petitioner was employed as an "on-call" Mental Health Technician I. The Mental Health Technician employment was an OPS (other personnel services) position with no regularly scheduled working hours. Her place of employment was the geriatric residential treatment system (GRTS) center at Bristol, Florida. On July 11, 1986, the Petitioner was transferred from the OPS Mental Health Technician position to a (50 percent FTE) Mental Health Technician position. In the new position, which entailed completion of a six month probationary period, the Petitioner worked 50 percent of a full time 40 hour work week, or 20 hours weekly. Combined with the job as Cook, Petitioner was employed for 36 hours weekly. At some point prior to the end of 1986, the Petitioner wrote to Ronald Kirkland, executive director for the Respondent. The Petitioner apparently felt that she was the subject of discrimination. The Petitioner demanded that Mr. Kirkland meet with her. She was advised to proceed in accordance with the Apalachee Center's personnel grievance procedure. Assistance in filing a grievance was offered to her, but she refused and continued to demand that Mr. Kirkland personally meet with her. The demand was rejected. In January, 1987, the Petitioner was informed that her job performance in the Mental Health Technician position was not satisfactory. At a meeting, held January 20, 1987, the Petitioner was given a memorandum (dated January 12, 1987) detailing a number of issues which were the basis for her unsatisfactory evaluation. (R-1) Such issues generally included disagreements over working hours, noncooperation with coworkers and abusiveness towards the Program Supervisor. The Petitioner acknowledged the memorandum, and stated that she believed it to be "unreasonable." Due to the unsatisfactory nature of her performance, the probationary period was extended for three months. At the end of the three month extension, in April, 1987, she was again evaluated. She received an above satisfactory evaluation in all categories except attitude, which was satisfactory. By March, 1987, the Respondent had determined that problems existed with the day treatment program at the Bristol GRTS facility and began planning to fully evaluate the operation. The Petitioner was working in the day treatment program. Laura Harris, Day Treatment Coordinator for the Respondent, was assigned to perform the review by Dr. William Perry, Respondent's Director of Geriatric Services. The process began in April, 1987. The staff of the Bristol GRTS facility was notified that the review was being performed and that Ms. Harris would be visiting at specific times to observe their performance. Ms. Harris requested that each day treatment staff person prepare four activities for GRTS clients and attempted to schedule times to observe the staff's presentation of the activities. The Petitioner failed to respond to Ms. Harris' request and did not schedule activity observation sessions. Eventually, Ms. Harris attended one of the Petitioner's activities periods without providing advance notice. Other day treatment staff were responsive to Ms. Harris' requests and cooperated with her suggestions. The Petitioner was not cooperative. The review period continued through August, 1987. On May 5, 1987, the Petitioner resigned from her position as Cook, effective May 18, 1987, and advised her program supervisor that she was available for additional employment as an OPS Mental Health Technician. The Petitioner's requested additional employment would have been during the evening, night and weekend shifts. The request was based on the departure, several weeks earlier, of the person employed as the 11:00 p.m. to 7:00 a.m. Mental Health Technician. The 11:00 p.m. to 7:00 a.m. shift is less popular and more difficult to staff than other work periods. Janey Hall, a black female, is the Bristol GRTS supervisor responsible for securing staff coverage for the evening shifts. The OPS evening shift assignments were generally rotated among staff members. However, due to the difficulty in staffing the 11:00 p.m. to 7:00 a.m. shift, Ms. Hall proposed assigning the coverage to a single individual. The proposal was approved by the Bristol GRTS program supervisor and by Dr. Perry. Ms. Hall selected Penny Mize, a white female, to work the 11:00 p.m. to 7:00 a.m. shift until a permanent employee was hired for the shift. Ms. Mize began working the shift immediately upon the departure of the former employee. There were occasions when black employees filled in for Ms. Mize. As to the Petitioner's request for additional employment hours, the Respondent's supervisory staff was concerned about the Petitioner's ability to successfully respond to the demands of evening, night and weekend shifts. Those shifts provide less supervision of employees than does the day shift. Due to previously noted problems with the Petitioner's job performance, as reported to Dr. William Perry, it was determined that the Petitioner required greater supervision than was available to her on the OPS shifts. Accordingly, her request for additional OPS hours was rejected on May 13, 1987, by Dr. Perry. On May 21, 1987, the Petitioner filed a complaint with the Florida Commission on Human Relations, FCHR No. 87-3619, alleging that the denial of her request for OPS hours as a Mental Health Technician was based on racial discrimination. The Petitioner alleged that Ms. Mize, a white employee, was permitted to work the additional hours, 11:00 p.m. to 7:00 a.m. There was no evidence presented by the Petitioner which would indicate that the denial of her request for the additional hours was racially motivated or based on any factor other than her job performance and the decision to limit her employment to more closely supervised shifts. Subsequent to the Petitioner's filing of FCHR 87-3619, Laura Harris completed the review of the Bristol GRTS facility. Based upon her review she prepared an evaluation of the Petitioner's job performance and a corrective action plan which specified steps the Petitioner was directed to complete in order to continue her employment and improve her job skills, both dated August 26, 1987. (R-3, R-4). The evaluation was severely critical of the Petitioner's attitude, and her unwillingness to work towards improving her interaction with co-workers and facility clients. The evaluation recommended that her employment "be terminated immediately". The Petitioner received the documents on September 10, 1987. Her written comments on the documents indicate that she disputed Ms. Harris' evaluation, and noted that she alone was being required to comply with the corrective action plan. However, the plan was related to the lack of effort and cooperation the Petitioner demonstrated during the Harris review. Other employees, black and white, were cooperative and no other corrective action plans were necessary. During the summer of 1987, the Respondent determined that additional assistance in providing nursing services to Bristol GRTS clients was required. The Respondent initiated establishment of a part-time Licensed Practical Nurse position and decided to delete the Petitioner's Mental Health Technician position to fund the new LPN. On October 15, 1987, the Petitioner was advised by Dr. Perry that the Mental Health Technician position was being eliminated to provide for the LPN position. Dr. Perry proposed to the Petitioner that she accept a position as Cook which would provide 32 hours weekly employment. The Petitioner's period of employment as Cook had been satisfactory. The Petitioner did not agree or refuse to accept the position, but said she would consider it. On October 26, 1987, Laura Harris prepared a follow-up evaluation to the corrective action plan of August 26, 1988. Ms. Harris noted improvement in the Petitioner's performance, although there were substantial problems remaining. Apparently, unaware that the Petitioner's Mental Health Technician position was being eliminated to provide for an LPN position, Ms. Harris recommended that the Petitioner be reevaluated on November 30, 1987. On October 27, 1987, Dr. Perry contacted the Petitioner and informed her that she would be transferred to the Cook's position and that her salary as Cook would remain at the same level as her Mental Health Technician salary, causing no reduction in her rate of pay as could have occurred. The following day, Dr. Perry met with the Petitioner and reiterated the proposal. There was no response from the Petitioner. On November 12, 1987, Dr. Perry delivered a letter, dated November 2, 1987, from Mr. Kirkland, executive director of the Respondent, confirming the prior discussions between Dr. Perry and the Petitioner. The letter stated that her employment as Mental Health Technician would cease on November 12, 1987, and that she would be paid for two additional weeks in lieu of notice. Alternatively, the letter stated that she could begin employment in the Cook's position on November 13, 1987. At the time the letter was delivered, the Petitioner stated that, due to the lack of child care availability, she could not begin the Cook's job on November 13. Dr. Perry suggested she begin on November 16, but the Petitioner refused. The Petitioner's employment at the Bristol GRTS facility concluded on November 12, 1987. In December, 1987, she filed a complaint with the Florida Commission on Human Relations, FCHR 88-1288, alleging that the elimination of her position as Mental Health Technician was in retaliation for the filing of her earlier complaint. There was no evidence that the Respondent's decision to employ an LPN instead of a Mental Health Technician was in retaliation for the earlier complaint or based on any consideration other than to better provide nursing care to the elderly clients of the Bristol GRTS facility. The evidence indicates that the decision to eliminate the Petitioner's position, rather than the position of another Mental Health Technician, was based on the Petitioner's poor job performance during the Harris evaluation period and was made without regard to the earlier complaint. Although at the hearing, the Petitioner repeatedly accused the Respondent's witnesses of perjured testimony, there is no evidence to support the accusation.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Florida Commission on Human Relations enter final orders dismissing the Complaints and Petitions for Relief in FCHR Cases No. 87-3619 and 88-1288. DONE and ENTERED this 21st day of December, 1988, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of December, 1988.
The Issue The issue in this case is whether the Agency for Health Care Administration should deny Petitioner's application for renewal of its standard assisted living facility license with a limited mental health component.
Findings Of Fact The Agency is responsible for licensing and regulating assisted living facilities in Florida pursuant to Part III, Chapter 400, Florida Statutes (2001). Pursuant to that responsibility, the Agency is authorized to conduct surveys and follow-up surveys, to make visits and inspections of assisted living facilities, and to investigate complaints. Oakland Manor is an assisted living facility located at 2812 North Nebraska Avenue, in Tampa, Florida, licensed and regulated pursuant to Part III, Chapter 400, Florida Statutes (2001), and Rule Chapter 58A-5, Florida Administrative Code. The facility's license has a limited mental health component. Rory and Lisa McCarthy have owned and operated Oakland Manor since about December 1999. Mrs. McCarthy is the administrator of the facility. Between the dates of December 14, 2000 and September 18, 2001, the Agency conducted three appraisal visits, a moratorium monitoring visit, a complaint investigation, and a biennial license renewal survey of the facility. The Agency noted the results of these inspections on a form referred to as Agency Form 3020-0001 ("Form 3020"). The Form 3020 is the document used to charge assisted living facilities with deficiencies that violate applicable law and rules. The Form 3020 identifies each alleged deficiency by reference to a tag number. Each tag of the Form 3020 includes a narrative description of the allegations against the facility and cites the relevant rule or law violated by the alleged deficiency. In order to protect the privacy of the residents, the Form 3020 and this recommended order refer to the subject resident by a number rather than by a name. There are 24 tags at issue in the proceeding, some having been cited as repeat or uncorrected deficiencies. An uncorrected deficiency is one that was previously cited and has not been corrected by the time designated or by the time of the Agency's follow-up visit. A repeat deficiency is one that the facility has been cited for and that has been corrected, but after the correction, the deficiency occurs again. Section 400.419, Florida Statutes, requires that the Agency assign a class rating to the deficiencies alleged in its Form 3020. The classification rating assigned to a deficiency is based on the nature of the violation and the gravity of its probable effect on facility residents. On December 14, 2000, the Agency conducted an appraisal visit of Oakland Manor. As a result of this visit, the Agency cited the facility with four Class III deficiencies, including a Tag A519 deficiency for failure to maintain minimum staffing to meet the residents’ needs, a Tag A1001 for failure to provide a safe environment, Tag A1024 for failure to provide beds for two residents, and Tag A1033 for failure to provide each bathroom with a door in good working order to ensure privacy for residents. The Agency conducted a second appraisal visit of Oakland Manor on March 12, 2001, and cited the facility for seven deficiencies, including three uncorrected deficiencies from the December 14, 2000, visit. According to the Form 3020 for the March 12, 2001, appraisal visit, the uncorrected deficiencies were cited as Tag A519, for failure to provide minimum staffing; Tag A1001, failure to provide a safe environment; and Tag A1024, for failure to provide clean, comfortable mattresses. In addition to the alleged uncorrected deficiencies, the Agency cited the facility for four new deficiencies under Tag A210, Tag A212, Tag A523, and Tag A1004. Tags A519, A523, and A1001 were rated as Class II deficiencies. The other tags cited were rated as Class III deficiencies. Because the Agency found new violations of Tags A519, A1001, and A1024, and deficiencies under those same tag numbers were identified in December 2000, the Agency deemed those violations or deficiencies to be uncorrected deficiencies. On March 13, 2001, the day after the second appraisal visit, the Agency entered an Order of Immediate Moratorium ("Order"). The Order was based on the alleged violations cited from the March 2001 appraisal visit and stated that the conditions at the facility presented a significant threat to the health, safety or welfare of the residents. Under the Order, Oakland Manor was prohibited from admitting any residents. On June 13, 2001, the Agency conducted a complaint investigation based on a complaint that the Agency had received. The Form 3020 summarizing the Agency's findings during the June 13, 2001, investigation did not cite Oakland Manor for any continuing violations, but alleged that there was a violation of Tag A1114, relating to staff records standards. The A1114 deficiency was assigned a Class II violation. The Agency conducted a biennial license and limited mental health renewal survey on June 28, 2001. This survey is required for continued licensure. As a result of the biennial survey, the Agency cited Oakland Manor with the following ten deficiencies, none of which had been previously cited: Tags L200, L201, L202, L203, L400, A525, A634, A1005, A1101, and A1103. All of these tags were assigned Class III ratings. On September 18, 2001, the Agency conducted an appraisal/monitoring visit. As a result of this visit, the Agency cited Oakland Manor with two violations, Tag A519, related to staffing standards, and Tag A1004, related to physical plant standards, both of which were assigned Class III ratings. Because Oakland Manor was cited for deficiencies under Tag 519 during the March 12, 2001, visit, the Agency noted that the deficiency of Tag A519 was a repeat violation. The Form 3020 for each survey or visit indicated when each alleged violation should be corrected. In some cases, a specific date was given. In other instances, the correction was to be implemented "immediately." DECEMBER 14, 2000, APPRAISAL TAG A519 Tag A519 requires a facility to maintain the minimum staffing hours set forth in Rule 58A-5.019(4), Florida Administrative Code. Because Oakland Manor had a resident census of 26 in November 2000 and through the first two weeks of December 2000, the facility was required to have minimum staff hours of 294 per week. Based on a review of the facility's staffing schedule for the time in question, the Agency surveyor properly concluded that the facility did not maintain the required minimum staff hours of 294 in November 2000 and the first two weeks of December 2000. As a result of this finding, the Agency properly cited Oakland Manor with a Tag A519, Class III deficiency. DECEMBER 14, 2000, APPRAISAL: TAG A1001 The second violation for which Oakland Manor was cited was a Tag A1001 deficiency, which requires that assisted living facilities "be located, designed, equipped, and maintained to promote a residential, non-medical environment, and provide for the safe care and supervision of all residents." See Rule 58A- 5.023(1)(a), Florida Administrative Code. The violation was rated as a Class III deficiency. The allegation that Oakland Manor failed to meet the requirements of Tag A1001 is based on the following observations noted on the Form 3020: there were electrical wires and light fixtures hanging loose from the ceiling in the hallway on the first floor; the residents' room walls were dirty, the rooms had a foul odor and the smell of urine; the floors of the facility were dirty; residents were observed smoking in their beds; the toilet tank lid was missing; and discharge water from the washing machine in the breezeway was running over the walkway in the patio area. At the time of the survey, one resident's room had dirty walls and also had a foul odor. The floors of the facility were dirty and had food particles on them, and the facility had an "unpleasant odor." Also, two residents were observed smoking in their bedrooms, despite the facility's no smoking policy. Contrary to the observation noted on the Form 3020, there were no light fixtures hanging loose from the ceiling, nor had that situation ever existed. At hearing, there was no evidence presented by the Agency that there were light fixtures hanging loosely from the ceiling. The electrical wires, referred to in the Form 3020, were slightly visible and coming from a 9-foot ceiling. However, there were wire nuts on the wires and, thus, the wires were not a danger to the residents. There was water coming from the washing machine as noted by the Agency surveyor. Mr. McCarthy does not deny that allegation, but the water coming from the washing machine was "feed" water going into the machine and not "discharge" water as noted in the Form 3020. This problem was resolved the following day when Mr. McCarthy purchased and had a new washing machine installed. The surveyor observed one toilet that did not have a toilet tank lid. The owners do not dispute this, but the lid was not "missing" as noted on the Form 3020, but had likely been removed by one of the residents. When a resident removes the toilet tank lid, staff members routinely replace the lid. The surveyor was unaware of any regulation that requires the facility to secure the lids to prevent the residents from removing them. DECEMBER 14, 2000, APPRAISAL: TAG A1024 The third alleged violation for which the facility was cited was Tag A1024, which refers to the physical plant standard set forth in Rule 58A-5.023(4)(e), Florida Administrative Code. That standard requires that each resident bedroom or sleeping area, where furnishings are supplied by the facility, shall at a minimum, be furnished with, among other things, a clean comfortable bed with a mattress. It is alleged that this standard was not met as evidenced by the observation that the mattress in Room No. 10 was torn, and the filler appeared to be coming out of the mattress. The undisputed testimony was that the torn mattress was not being used by any resident of the facility, but was a mattress that was not being used. The Notice of Intent to Deny mischaracterizes the surveyor's findings under Tag A1024 as "failure to provide beds for two residents." This allegation was not addressed or proven by the Agency. DECEMBER 14, 2000, APPRAISAL: TAG A1033 The fourth alleged violation, cited under Tag A1033, relates to the physical plant standard set forth in Rule 58A- 5.023(5), Florida Administrative Code. That standard requires that each bathroom have a door in working order to assure privacy and that the entry door to the bathrooms with a single toilet is required to have a lock which is operable from the inside by the resident, with no key needed. The Agency alleged that this standard was not met in that the bathroom door on the first floor was not operable because the door was missing the striker plate that keeps the door tightly closed into the frame. The Agency noted that as a result of this alleged defect, residents using that bathroom did not have privacy. Based on Mr. McCarthy's testimony, there was a door leading into the bathroom, which had a working lock. In addition, the door with the missing striker plate had a hook and eye that allowed the door to be secured from the inside. MARCH 12, 2001, APPRAISAL TAG A519 Tag A519 requires the facility to meet the minimum staffing required by Rule 58A-5.019(4), Florida Administrative Code. Based on the resident census of 25 for March 4-12, 2001, and the surveyor's review of the staff work schedule for that week, Oakland Manor was cited for a Tag A519 deficiency. According to the facility's staff work schedule, there were 208 total staff hours for that week and not the required minimum staffing hours. The Form 3020 stated that the "[l]ack of adequate staffing has resulted in a malfunctioning sewage system which poses an immediate risk to the residents, staff, and public." In making this allegation, the Agency apparently assumed that the residents caused the sewage system problems and that if there had there been adequate staffing, these problems would not have occurred. The Agency then alleged that the malfunctioning sewage system posed an immediate risk to the residents, staff, and public. However, these assumptions and allegations are not supported by any evidence. There is no evidence that the sewage system problems were caused by the residents and/or lack of staffing. Moreover, there is nothing in this record which supports the claim that the malfunctioning sewage system posed an "immediate risk" to the residents, staff, or public. Clearly, there was a Tag A519 deficiency in that the facility failed to maintain the weekly minimum staff hours required. Also, because the facility had been cited for a Tag A519 deficiency during the December 14, 2000, appraisal, the Agency properly found that the Tag A519 deficiency, cited during the March 12, 2001, appraisal was an uncorrected deficiency. However, in this instance, the violation did not "directly threaten the physical or emotional health, safety, or security of the facility residents." Accordingly, the violation is not a Class II deficiency, as alleged by the Agency, but is a Class III deficiency. MARCH 12, 2001 APPRAISAL: TAG A523 As stated on the Form 3020, Tag A523 requires that, notwithstanding the minimum staffing ratio, all facilities have enough qualified staff to provide resident supervision, and provide or arrange for resident services in accordance with resident scheduled and unscheduled service needs, resident contracts, and resident care standards. See Rule 58A- 5.019(4)(b), Florida Administrative Code. The Agency alleged that Oakland Manor failed to meet this standard. The determination that Oakland Manor failed to meet the standard required by Tag A523 was based on the surveyor's observation and interview with the facility administrator. On the day of the survey, from 9:30 a.m. to approximately 11:00 a.m., the surveyor noticed that there was a strong odor of sewage coming from the basement area and standing water on the basement floor. The surveyor learned from the administrator that the matter came to her attention that morning and that a plumber had been called and had corrected a similar problem a week earlier. Mr. McCarthy explained that the lift station malfunction and the overflow of sewage into the basement had occurred the day of the Agency inspection. After a plumber came to the facility to repair the lift station and was unable to do so, an electric company was called and came out and immediately repaired the lift station. The Form 3020 notes that when the lift station backed up the week before, the plumber found t-shirts, garbage bags, bandannas, and a stick of deodorant clogging up the lift station. From this alleged statement, the surveyor erroneously concluded that some of the residents had thrown these and possibly other items into the lift station. In view of this assumption, the surveyor alleged on the Form 3020 that: The lift station back up is occurring due to a lack of supervision of qualified staff to provide resident supervision and allowing the residents to freely access the lift station in the yard and put items in it. The size and accessibility of the lift station also poses a threat to residents due to the possibility of a fall while throwing in inappropriate items. The lift station was in the yard of the facility, but the residents do not have free access to the lift station, except the top external lid of the lift station. The residents can not remove the lid covering the lift station because the lid is made of steel and weighs over 200 pounds. Accordingly, the residents can not throw items in the lift station and, thus, there is no threat to the residents "due to the possibility of a fall while throwing" items into the lift station, as alleged by the Agency. The Agency deemed the Tag A523 violation as a Class II deficiency and required that the facility correct the deficiency immediately. The Agency failed to establish this allegation. MARCH 12, 2001, APPRAISAL: TAG A1001 The standards of Tag A1001 are stated in paragraph 20. Based on the surveyor's observations, Oakland Manor was again cited for a Tag A1001 deficiency. Tag A1001 was deemed by the Agency to be an uncorrected deficiency and designated a Class II violation. In the Form 3020, the Agency listed the following 12 alleged facts as the basis for the cited deficiency: Two large ladders were lying on the floor in the hallway, partially blocking access through the hallway. The bathtub and shower in the first floor shower room were badly stained and mildewed. In Room No. 1, the toilet was not working and there was an accumulation of feces in the toilet bowl. In Room No. 3, there were piles of dirty laundry, trash, and cigarette ashes in the middle of the room. The wall and floors throughout the facility were dirty. In Room No. 8, there was an electric space heater in front of full length curtains. In Room No. 10, there were cigarette butts on the floor and the resident in the room was observed smoking, although smoking is not allowed in the facility. In the second residential building, the first bathroom had a dirty floor and the vinyl was very worn and there was no lid on the "toilet back." In the second residential building television room, there was a resident smoking even though there is a no smoking sign posted. There was a strong sewer odor emanating from the facility basement and the basement had standing water. The staircase to the second floor of the main building was covered with dirt and grime. The overhead light in the second floor hallway was not working and the staircase was very dark. The ladders, referred to in the Form 3020, were not lying on the floor but were leaning against a recessed part of the wall in the hallway. They were not blocking the passageway and, even with the ladders in the hallway, there was enough room for a 215-pound man to walk through the hall into the adjacent room. The reason the ladders were in the hall was that Mr. McCarthy was painting the facility. At the end of each day, when Mr. McCarthy was finished painting, he stored the ladders in an office in back of the kitchen or in a shed in the back of the facility. The surveyor reported that the bathtub and shower in the first floor shower room were badly stained and mildewed. Mrs. McCarthy testified that the shower stall is made of heavy marble and is original to the 100-year-old house and that many of the stains can not be scrubbed off. The substance the surveyor described as mildew was shampoo. The toilet in Resident Room No. 1 was described in the Form 3020 as having an accumulation of feces and not working. The toilet was stopped up, but was working and was put back into flushing order that same day, immediately upon the problem being called to her attention. The residents in that room placed female products in the toilet and caused it to stop up. However, the toilet was functioning in all respects when it was not stopped up. In Resident Room No. 3, there were piles of dirty laundry, trash, and cigarette ashes in the middle of the room. This was not disputed. Every shift, staff is suppose to sweep, mop, and make sure that the room is cleaned out, but sometimes the residents put their laundry on the bed. The walls and floors throughout the facility were dirty as reported in the Form 3020. In an effort to keep the walls clean, they are painted every three or four months. The Agency surveyor observed a space heater in Room No. 8, which she characterized as a fire hazard. However, the heater was not plugged in and was not in use at that time. When the heater is in use, it is in the middle of the room and not near the curtain. In Room No. 10, the surveyor observed cigarette butts on the floor and the resident in the room was observed smoking, even though the facility had a no smoking policy and all residents were given copies of that policy, upon admission. In Oakland Manor’s second residential building, the surveyor observed that the floor was dirty and the vinyl was torn, and there was no lid on the toilet back. Mr. McCarthy confirmed that the vinyl was worn and did not dispute that the floor was dirty. At the time of the Agency inspection, the worn dirty vinyl was in the process of being replaced. With regard to the toilet backs, the residents remove the toilet tank lids, but they are always put back on. The Agency surveyor observed a resident smoking in the television room, even though there was a “No Smoking” sign posted in the room. At Oakland Manor, smoking in violation of the house rules is a continuing problem that the administrator and staff make efforts to correct. The Agency surveyor observed that there was standing water in the basement and a strong sewer odor coming from the basement. Other facts related to this observation are discussed in paragraphs 35 and 36. Mrs. McCarthy does not dispute this allegation, but the problem was promptly correctly. Mr. Carthy corrected the problem within 48 hours; he went into the basement and “squeegeed” all the standing water and otherwise treated the floor to dry it and deodorize it. The surveyor determined that the overhead light in the second floor hallway of the main house was not working. She reached this conclusion after she first observed the dark hallway and then tried to turn on the light and was unable to do so. There is no indication that the surveyor asked facility staff to turn on the light or inquired as to how the switch worked. The light operates by a three-way switch, and although there are two switches, only one of them turns on the light. Also, there are two lights in the stairwell so that if one light is burned out, the other one still works, but it does not appear that the inspector knew how to operate the three-way switch. No testimony was presented by the Agency regarding the allegation concerning the staircase to the second floor of the main house. Based on the Agency’s findings in the paragraph 40-d, e, and j, above, the facility was properly cited for the Tag A1001 deficiency. This was an uncorrected deficiency. MARCH 12, 2001, APPRAISAL: TAG A1004 Tag A1004 requires that all windows, doors, plumbing, and appliances in assisted living facilities be functional and in good working order. See Rule 58A-5.023(1)(b), Florida Administrative Code. According to the Form 3020, Oakland Manor failed to meet this standard as evidenced by windows in the facility that were not functional and in good working order and failing to promptly repair broken glass, which "may result in injury to residents or staff." The surveyor observed the following: a large window pane in the front door was broken, the lower window pane in the dining room window was covered over with plywood, the first floor rear bathroom window was hanging off the hinge and the screen was missing; and the window pane of the outside door leading to the ramp was broken and covered with a garbage bag. The owners do not dispute that the pane in the front door was broken, but testified that the material was not glass, but Plexiglas. The door had been broken by one of the residents the day of the survey. Mr. McCarthy replaced the Plexiglas pane the same day and, four or five days later, replaced the entire front door with a solid door. As to the allegation that the lower half of the dining room window was covered with plywood, that there was not a glass pane in the lower part of the window. Rather, the plywood was placed there instead of the glass and was put in with trim molding and sealed with caulking. It appears that the window was designed that way to serve as a "fixed" window. The Agency acknowledged that window had been like that before the McCarthys purchased the facility. Moreover, the Agency had not previously indicated that this was a violation of any regulation. Although the Agency offered no suggestions to address its concern with the “fixed” window, Mr. McCarthy replaced the plywood with Plexiglas in an attempt to comply with the Agency requirements. The surveyor's observation regarding the first floor rear bathroom window was reversed. There was a screen on hinges that opened and closed and the top hinge of the screen was pulled out and hanging over a bit. However, the screen was there and the window was functional. Mrs. McCarthy does not dispute that the outside door had a broken glass pane that was covered with a garbage bag. The glass pane had been broken out earlier that day and the entire door was replaced within a day or so of the Agency's appraisal visit. The observations noted in paragraph 61 constitutes a violation of Tag A1004. MARCH 12, 2001, APPRAISAL: TAG A1024 The Tag A1024 requires that each resident room in an assisted living facility be furnished with, among other things, a clean comfortable mattress. See Rule 58A-5.023(4)(e)1., Florida Administrative Code. According to the Form 3020, the Agency alleged that Oakland Manor failed to comply with this standard in that "the facility did not provide appropriate beds for two residents." No mention is made in the Form 3020 of which residents did not have appropriate beds. The alleged Tag A1024 deficiency was based on the two reported observations of the surveyor. First, the Form 3020 notes that in Room No. 10, the surveyor observed "a medical crutch being used as a mattress support on one bed." Second, the surveyor noted her observation that in Room No. 4, there was "a ripped mattress with the filling coming out of the rips." The owners testified that the crutch was not being used to support the mattress and that bed was not being used by any of the residents. Mr. McCarthy did not know why the crutch was under the mattress, but it was not there for support because of the construction of the bed. As to the second observation, the owners do not dispute that the mattress also in Room No. 4 was ripped. However, the bed with the torn mattress was not being used by anyone and has been replaced. Finally, there were appropriate beds for all the residents because at the time of this survey, there were 26 residents and 32 beds. This testimony was not disputed by the Agency. Tag A1024 was deemed by the Agency to be an uncorrected deficiency and was designated as a Class III violation. The Agency gave the facility until March 15, 2001, to correct the deficiency. MARCH 12, 2001, APPRAISAL: TAG A210 Four additional new violations were cited as a result of the Agency's March 12, 2001, appraisal visit. These violations or deficiencies were assigned Tag A210, Tag A212, Tag A523, and Tag A1004. Tag A210 requires compliance with the standards set forth in Rule 58A-5.024, Florida Administrative Code. That rule requires that assisted living facilities maintain the records prescribed therein "in a form, place and system ordinarily employed in good business practice and accessible to the department and [A]gency staff." Rule 58A-5.024(1)(m), Florida Administrative Code, requires that the facility maintain all fire safety inspection reports issued by the local authority having jurisdiction or the State Fire Marshal within the past 2 years. In an interview, which occurred during this visit, the facility administrator advised the Agency surveyor that the fire inspection reports were not on the premises, but at the administrator's home. Based on this statement by the administrator, the Agency properly concluded that this standard was violated because the fire inspection records were maintained at the owner/administrator's home, and were not in a place accessible to Agency staff as required by the applicable rule. MARCH 12, 2001, APPRAISAL: TAG A212 The Tag A212 relates to facility records standards. According to the Form 3020, Oakland Manor failed to meet this standard in that it violated Rules 58A-5.020(3) and 58A- 5.024(1)(n), Florida Administrative Code. The former rule requires that "copies of inspection reports [relating to food hygiene] issued by the county health department for the last two years . . . be on file in the facility." The latter rule requires that all sanitation inspection reports issued by the county health department within the past two years be maintained in a form, place, and system ordinarily employed in good business practice and accessible to department or agency staff. The Form 3020 indicates and it is undisputed that the most recent copy of the sanitation inspection report was not on the premises, but at the administrator's home. MARCH 13, 2001, ORDER OF IMMEDIATE MORATORIUM On March 13, 2001, the day following the Agency’s March 12, 2001, appraisal visit to Oakland Manor, the Agency imposed a Moratorium on Admissions to the facility, which has remained in effect. JUNE 12, 2001, MORATORIUM MONITORING VISIT TAG A528 In the Notice of Denial, the Agency alleged that a Moratorium monitoring visit was made to Oakland Manor on June 12, 2001, during which the facility was cited for violating Tag A528. The Agency failed to establish this violation. JUNE 13, 2001, COMPLAINT INVESTIGATION TAG A1114 On June 13, 2001, the Agency conducted a complaint investigation of Oakland Manor. As a result of the investigation, the Agency alleged that the facility violated Tag A1114 by failing to include in an employee’s file documentation of compliance with Level 1 screening. The standards under Tag A1114 are set forth in Section 400.4275(2), Florida Statutes, and Rules 58A-5.019(3) and 58A-5.024(2)(a)3., Florida Administrative Code. Pursuant Rule 58A-5.019(3), Florida Administrative Code, a Level 1 screening is required for all employees hired after October 1, 1998, to provide personal services to residents. Also, personnel records for each staff member should include documentation of compliance with Level 1 background screening for all staff. See Subsection 400.4275(2), Florida Statutes, and Rule 58A-5.024(2)(a)3., Florida Administrative Code. Mr. and Mrs. McCarthy did not dispute this allegation. According to the Form 3020, the employee in question had been hired by the facility on or about May 15, 2001. Mrs. McCarthy told the surveyor that she had applied for the background screening about two weeks prior to the June 13, 2001, complaint investigation, but it had not yet been received. Later that day, the administrator provided the surveyor with a copy of an arrest report from the Tampa Police Department. The arrest report did not satisfy the standards required under Tag A1114. The deficiency constituted a failure to comply with the requirements of Tag A1114, and was properly designated a Class II deficiency. JUNE 28, 2001, LICENSE RENEWAL SURVEY TAG L200 Tag L200 requires assisted living facilities with a limited mental health license, such as Oakland Manor, to have a copy of each mental health resident’s community living support plan. See Subsection 400.4075(3)(a), Florida Statutes. In addition, Tag L200 requires that the mental health case manager and the mental health resident, in conjunction with the facility administrator, prepare the community living support plan within 30 days of admission to the facility or within 30 days after receiving the appropriate placement assessment. See Subsection 400.402(8), Florida Statutes, and Rule 58A.5.029(2)(c)3.a., Florida Administrative Code. According to the Form 3020, the surveyor reviewed the file of Resident 1, a limited mental health resident who was admitted to the facility on November 23, 1993, and did not find the resident’s community living support plan. The resident’s record did have the annual community living support plan, but the surveyors simply missed or inadvertently overlooked the document. There was a community living support plan in Resident 1’s file that was signed by the resident, the resident’s counselor, and the former facility administrator, and dated February 17, 1999. Attached to the community living support plan were progress notes, with the last entry dated October 14, 1999. JUNE 28, 2001, LICENSE RENEWAL SURVEY TAGS L201, L202, L203, AND L400 Oakland Manor was cited for violating standards under Tags L201, L202, L203, and L400, all of which relate to community living support plans. Tag L201 requires that the community living support plan include the components enumerated in Rule 58A- 5.029(2)(c)3.a.(i)-(vi) and (viii), Florida Administrative Code. Tag L202 requires the assisted living facility to make the community living support plan available for inspection by the resident, the resident’s legal guardian, the resident’s health care surrogate, or other individuals who have a lawful reason to review the plan. See Subsection 400.4075(3)(c), Florida Statutes. Tag L203 requires that the community living support plan to be updated annually in accordance with See Rule 58A- 5.029(2)(c)3.a.(vii), Florida Administrative Code. Finally, Tag L400 requires the facility to assist the mental health resident in carrying out the activities identified in the individual’s community living support plan. See Subsection 400.4075(3)(d), Florida Statutes. The alleged deficiencies cited under Tags L201, L202, L203, and L400 were all based on the surveyor’s finding that the file of Resident 1 did not contain a community living support plan. In light of the finding in paragraph 80, that the annual community support plan was in the resident’s file, the Agency did not establish the deficiencies listed under Tags L201, L202, and L400. Oakland Manor failed to comply with the standards of Tag L203, in that the community living support plan had not been updated annually as required by the foregoing rule. JUNE 28, 2001, LICENSE RENEWAL SURVEY: TAG A525 Tag A525 was assigned to Oakland Manor based on the Agency's determination that for two facility employees, scheduled to work alone on the 11:00 p.m. to 7:00 a.m. shift, there was no documentation that they had received first aid training. This alleged deficiency constitutes a failure to comply with the staffing standards in Rule 58A-5.019(4)(a)4., Florida Administrative Code, which requires that at least one member who is trained in first aid and CPR be in the facility at all times. Oakland Manor was properly cited for a violation of Tag A525 which was designated a Class III deficiency. JUNE 28, 2001, LICENSE RENEWAL SURVEY: TAG A634 The Agency assigned a Tag A634 deficiency to Oakland Manor based on its determination that Oakland Manor failed to meet the medication standards set forth in Section 400.4256(1), Florida Statutes. That provision requires the facility to advise the resident or the resident's guardian or surrogate that the resident may receive assistance with self-administration of medication from an unlicensed person and that such assistance will not be overseen by a licensed nurse. As support for this violation, the Form 3020 noted that based on a review of three residents' files, there was no documentation that the facility had informed the residents as required by Section 400.4256, Florida Statutes. The facility does inform residents appropriately, based on documents included in the admissions package. However, the surveyors did not look anywhere except the residents’ files for that documentation. The residents also signed a letter giving their informed consent to comply with the Agency regulations, and a copy of that letter was faxed to the Agency soon after the citation. JUNE 28, 2001, LICENSE RENEWAL SURVEY: TAG A1005 As part of this survey, the Agency assigned a Tag A1005 deficiency, alleging that the facility failed to meet the physical plant standard required by Rule 58A-5.023, Florida Administrative Code. That rule requires that all furniture and furnishings be clean, functional, free of odors, and in good repair. This deficiency was based on a surveyor's observation of the main bathroom on the first floor of the main building. During a tour of the facility, the Agency surveyor observed human excrement on the bathroom floor, on the outside of the toilet bowl, and on the toilet seat. The surveyor also observed that an adult brief, filled with human excrement, had been thrown against the wall. After this was brought to the administrator's attention, the bathroom was cleaned immediately. However, several hours later, when the surveyor returned to the area, human excrement again had been smeared on the toilet seat. A few minutes prior to the surveyor returning to the bathroom, a resident exited the bathroom. Therefore, it is very likely that the resident who was in the bathroom soiled the toilet seat after it had been cleaned. The facility staff has a regular cleaning schedule and, pursuant to that schedule, the bathrooms are checked and cleaned several times, as necessary. However, the residents are entitled to their privacy in the bathrooms and staff does not check the bathroom every time a resident uses it. Tag A1005 was designated a Class III deficiency, and the facility was required to and did correct this deficiency immediately after it was discovered. In light of the totality of the circumstances, the Agency did not properly cite the facility for a violation of this tag. JUNE 28, 2001, LICENSE RENEWAL SURVEY TAGS A1101 AND A1103 The Agency cited Oakland Manor for a Tag A1101 deficiency for failure to adhere to the staff record standards in Rule 58A-5.024(2)(a), Florida Administrative Code. That rule requires that the personnel records of each facility staff member contain the verification of freedom from communicable disease, including tuberculosis. The Tag A1101 deficiency was based on a review of eight personnel files, which revealed three files that contained no documentation that the respective employees were free from communicable disease. The three employees, for whom there was no documentation, had been hired two or three months prior to the June 28, 2001, re-licensure survey, on March 20, April 4, and April 20, 2001. JUNE 28, 2001, LICENSE RENEWAL SURVEY TAG A1103 The Agency cited Oakland Manor for a deficiency under Standards of Tag A1103. That tag requires that, within 30 days of being hired, a facility staff member must "submit a statement from a health care provider, based on an examination conducted within the last six months, that the person does not have any signs or symptoms of a communicable disease including tuberculosis." See Rule 58A-5.019(2)(a), Florida Administrative Code. The rule further provides that such "freedom from tuberculosis must be documented on an annual basis." The Tag A1103 deficiency was assigned based on the Agency's review of the personnel files of eight of the facility’s staff members. The Form 3020 states that the files of four employees, W.W., L.M., J.V., and M.J., hired July 5, 1992, November 1999, April 23, 2001, and March 20, 2001, respectively, did not contain documentation of freedom from tuberculosis, obtained from a test in the last 365 days. The Agency's finding that the facility failed to comply with the staffing standards in Rule 58A-5.019(2)(a), Florida Administrative Code, is well-founded as it relates to the staff members employed on July 5, 1992, and November 1999. However, the requirement that freedom from tuberculosis must be documented annually can not be the basis for the Tag A1103 deficiency, as it relates to the two employees hired on March 20, 2001, and on April 23, 2001, only two or three months from the date of the survey. SEPTEMBER 18, 2001, APPRAISAL VISIT TAG A519 On September 18, 2001, the Agency conducted an appraisal visit of the facility and cited it for a Tag A519 deficiency, which relates to failure to maintain minimum staffing standards required in Rule 58A-5.019, Florida Administrative Code. The cited deficiency was based on the fact that the facility census was sixteen. In accordance with the foregoing rule, on the day of the September visit, the resident facility was required to have a weekly minimum of 253 staffing hours, but the facility only had 208 hours. Based on its review of records proved by the facility, the Agency properly concluded that the facility did not meet the minimum staffing standards for the first two weeks of September 2001. The Agency designated the Tag A519 as a Class III deficiency and properly noted that this was a "repeat deficiency." SEPTEMBER 18, 2001, APPRAISAL TAG A1004 Tag A1004 requires that the windows, doors, plumbing, and appliances of the facility be in good working order. See Rule 58A-5.023(1)(b), Florida Administrative Code. The Agency found that Oakland Manor was in violation of this standard. According to the surveyor, the basis for this alleged violation was that "certain light fixtures throughout the facility were being maintained in an unsafe manner" and that "numerous bare (uncovered by globe or shade) light bulbs were observed, specifically in the dining area and in the main building bathrooms." The Agency concluded that the "unprotected bulbs are in danger of being broken, putting the residents at risk." Although the Agency cited the facility for the exposed light bulbs, the surveyor testified that there is not a specific tag that addresses the hazards of a light bulb, but the designated Tag A1004 “was the best available citation, quite frankly.”
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 revising the survey reports to delete and/or modify the deficiencies described in the Forms 3020 that are not supported by the record and granting Oakland Manor's application for renewal of its assisted living facility license. DONE AND ENTERED this 4th day of October, 2002, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 4th day of October, 2002. COPIES FURNISHED: A. S. Weekley, Jr., M.D., Esquire Holland and Knight LLP 400 North Ashley Drive Tampa, Florida 33602 Eileen O'Hara Garcia, Esquire Agency for Health Care Administration 525 Mirror Lake Drive, North Sebring Building, Room 310J St. Petersburg, Florida 33701 Lisa McCarthy, Administrator Oakland Manor ALF 2812 North Nebraska Avenue Tampa, Florida 33602 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308
The Issue The issue in this case is whether Petitioner's request for exemption from disqualification from employment in a position of trust should be granted.
Findings Of Fact AHCA is a state agency required to conduct background screenings for individuals who provide certain types of healthcare related services under chapters 400, 408, and 429, Florida Statutes. § 408.809, Fla. Stat. Petitioner is seeking to become owner of a licensed nurse registry for pediatric and special needs care. As such, Petitioner is required to have a background screening check pursuant to section 408.809. Petitioner is interested in the field because his daughter was born with several disabilities. After completing Petitioner's background screening, Petitioner's 2011 disqualifying felony criminal offenses of owning, operating, or maintaining an assisted living facility without a license were identified. On March 6, 2019, Petitioner submitted a request for exemption from disqualification, which included the exemption application and supporting documentation ("exemption package"). In Petitioner's exemption package, he listed his work history, which included the following employment: Home Reach, LLC, from April 2013 to October 2013; Five Star Home Health from October 2013 to March 2014; unemployment from March 2014 to August 2014; Home Reach, LLC, from August 2014 to August 2018; and a leave of absence from Home Reach, LLC, starting August 2018. Petitioner also detailed his plans to comply with AHCA's laws and regulations in his exemption package. He explained that he has retained a consultant, Elisabeth Jean-Baptiste ("Jean- Baptiste"), to assist him. She is the director of the FEDEN Healthcare Education Institute, an entity that provides continuing legal and regulatory education in the healthcare field. Petitioner included in his exemption package documentation that he completed a 12-hour Adult Family Care Home course, which covered the rules and regulations for running a healthcare business. On May 15, 2019, as part of the exemption application process, Petitioner participated in a telephonic exemption hearing with AHCA. After the telephonic hearing and discussion, AHCA denied Petitioner's request for an exemption by letter dated May 30, 2019. Subsequently, Petitioner requested an administrative hearing. Disqualifying Offenses On May 26, 2011, Petitioner was arrested and charged with a two-count felony of operating, owning, or maintaining an assisted living facility without a license. Petitioner's criminal charges stem from him operating Heaven Sent Group Home, which he labeled "sober living" houses. At the two facilities Petitioner owned and operated, medication was distributed, and daily activities for the residents were performed without being licensed as an assisted living facility. On June 27, 2011, AHCA also charged Petitioner by Administrative Complaint in Case No. 2011001367 for operating Heaven Sent Group Home, which was the same unlicensed assisted living facility subject matter as the criminal Case No. 2011CF001679A. On or about September 20, 2011, Petitioner pled no contest in Case No. 2011CF001679A to the two felony counts of operating, owning, or maintaining an assisted living facility without a license. The court withheld adjudication and sentenced Petitioner to three years of probation, 100 hours of community service, court costs, and fines. On January 25, 2012, AHCA issued a Final Order in Case No. 2011001367, imposing a $99,000.00 fine for Petitioner's unlicensed activity. By letter dated October 2, 2013, Petitioner was notified that he completed his terms of probation and was no longer under the supervision of the Department of Corrections for Case No. 2011CF001679A. Hearing At hearing, Petitioner explained that he opened two facilities in 2007 to help the underprivileged. His residents included those that were released from incarceration or mentally ill and did not have place to live. He testified that most of his residents came from the courts or were referred by New Horizons. Petitioner denied receiving any AHCA notices sent to him regarding his operating the two unlicensed assisted living facilities prior to the 2011 cease and desist on Heaven Sent Group Home. Petitioner further claimed that he did not know he needed a license for the facilities he was running. Petitioner did admit that he was completely responsible for his wrongdoings and not being educated and aware of the rules and regulations regarding operating a group home or an assisted living facility. During the final hearing, Petitioner presented the testimony of Roshina Lakram, who testified that she knew Petitioner for 30 years and that he had been helping people struggling with drugs and mental illnesses with his sober living homes. Vanessa Risch ("Risch"), the health services and facilities consultant manager for AHCA's Background Screening Unit, testified at hearing that in making the decision to deny Petitioner's exemption, AHCA considered Petitioner's entire case file including exemption application, education and training records, personal letters of support, personal attestations, one employment reference letter, and Petitioner's explanations during the telephonic exemption hearing. AHCA concluded that Petitioner was not particularly candid during the May 15, 2019, telephonic hearing, because Petitioner failed to mention prior to and during the teleconference that he has the outstanding AHCA fine in the amount of $99,000.00 from his unlicensed activity from Case No. 2011001367. Although Petitioner had some positive letters of recommendation, his failure to be candid and honest in addition to his lack of effort to make any payments toward the outstanding AHCA fine was a major consideration in the denial of Petitioner's exemption. Risch testified that Petitioner failed to meet section 435.07(3)(a) and had not demonstrated by clear and convincing evidence that he was rehabilitated. At hearing, Petitioner also failed to readily admit that he owed the $99,000.00 fine to AHCA when testifying. First, Petitioner did not own up to currently owing the monies, then testified that maybe it happened while his daughter was in the hospital, and finally inquired about a payment plan. At the time of the hearing, Petitioner had not paid any amount towards the fine nor attempted to negotiate a payment plan agreement with AHCA to pay off the delinquent fine. Findings of Ultimate Fact Upon careful consideration of the entire record, the undersigned finds that Petitioner was both credible and passionate in his testimony about his future and not wanting to work for other individuals for the rest of his life. He even testified that since it was America, he wanted his own. However, Petitioner failed to testify convincingly regarding the monies owed to AHCA. He was dismissive about his past instead of being honest and forthright regarding the outstanding $99,000.00. Such lack of candor and accurateness regarding the delinquent AHCA fine establishes Petitioner's ineligibility for an exemption from disqualification because he has not demonstrated by clear and convincing evidence that he has been rehabilitated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Agency for Health Care Administration enter a final order upholding its denial of Petitioner's request for an exemption from disqualification for employment. DONE AND ENTERED this 10th day of October, 2019, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY 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 10th day of October, 2019. COPIES FURNISHED: Chan Gobin 5839 Northwest Drill Court Port St. Lucie, Florida 34986 Lindsay Worsham Granger, Esquire Agency for Health Care Administration Building 1, Mail Stop 7 2727 Mahan Drive 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) Shena L. Grantham, Esquire Agency for Health Care Administration Building 3, Room 3407B 2727 Mahan Drive Tallahassee, Florida 32308 (eServed) Thomas M. Hoeler, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed)
Conclusions Having reviewed the Amended Administrative Complaint, the Amended Notice of Intent to Deny Renewal License, the Administrative Complaint, the Agency for Health Care Administration finds 1 The Final Order adopts a Settlement Agreement that has applies to parties other than the named Respondent. 2 The Final Order correctly reflects the applicant as the petitioner in the case style for this licensure action. Filed February 18, 2014 10:37 AM Division of Administrative Hearings and concludes as follows: 1. The Agency has jurisdiction over the above-named Provider pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Amended Administrative Complaint, Amended Notice of Intent to Deny Renewal License, Administrative Complaint and Election of Rights forms to Brandia Presha d/b/a Personal Care I]. (Ex. 1) The Election of Rights forms advised of the right to an administrative hearing. The Settlement Agreement also includes the assisted living facility known as Personal Care, also owned by Brandia Presha. The two assisted living facilities will be referred to as “the Provider.” In addition, the Settlement Agreement includes Tamik Presha. 3. The parties and Tamika Presha have entered into the attached Settlement Agreement. (Ex. 2) Based upon the foregoing, it is ORDERED: 1. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 2. The Provider’s assisted living facility licenses to operate Personal Care II, license number 8730, and Personal Care [“I”’], license number 4829, are VOLUNTARILY SURRENDERED effective December 14, 2014. The Provider may consent to a Change of Ownership (“CHOW”) application with an unrelated party for either or both of the facilities with an effective date of, or prior to, December 14, 2014. Should there not be a CHOW with an effective date of, or prior to, December 14, 2014, the Provider is responsible for the safe and orderly discharge of the facility residents. 3. The Provider and Tamika Presha shall not apply for any type of license issued by the Agency or obtain any interest in any private entity which holds a license issued by the Agency for a period of 5 years of the date of this Final Order. 4. An administrative fine of $2,000.00 is imposed but STAYED against the Provider. The Agency shall not attempt to collect the fine against the Provider absent a breach of this Settlement Agreement. Should either Brandia Presha or Tamika Presha seek any type of license issued by the Agency within five years of the date of this Final Order, the $2,000.00 shall be immediately due and payable and full payment of the fine shall be a condition precedent for any type of Agency license. If payment is to be made, a check made payable to the “Agency for Health Care Administration” and containing the AHCA ten-digit case number(s) should be sent to: Office of Finance and Accounting Revenue Management Unit Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 14 Tallahassee, Florida 32308 5. Should there not be a CHOW, the Provider is responsible for any refunds that may be due to any clients. 6. Should there not be a CHOW, the Provider shall remain responsible for retaining and appropriately distributing client records as prescribed by Florida law. The Provider is advised of Section 408.810, Florida Statutes. The Provider should also consult the applicable authorizing statutes and administrative code provisions as well as any other statute that may apply to health care practitioners regarding client records. 7. Should there not be a CHOW, the Provider is given notice of Florida law regarding unlicensed activity. The Provider is advised of Section 408.804 and Section 408.812, Florida Statutes. The Provider should also consult the applicable authorizing statutes and administrative code provisions. The Provider is notified that the cancellation of an Agency license may have ramifications potentially affecting accrediting, third party billing including but not limited to the Florida Medicaid program, and private contracts. ORDERED at Tallahassee, Florida, on this_/7/_ day of Alauacte , 2014. Elizabeth Dudak, Secretary th Care Administration
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I CERTIFY that a true and correc y of this Final Order was served on the below-named persons by the method designated on this L2 ay of F a , 2014. Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Shaddrick Haston, Unit Manager Facilities Intake Unit Licensure Unit (Electronic Mail) Agency for Health Care Administration (Electronic Mail) Finance & Accounting Patricia Caufman, Field Office Manager Revenue Management Unit Local Field Office (Electronic Mail) Agency for Health Care Administration (Electronic Mail) Katrina Derico-Harris Suzanne Suarez Hurley, Esq. Medicaid Accounts Receivable Office of the General Counsel Agency for Health Care Administration Agency for Health Care Administration (Electronic Mail) (Electronic Mail) Shawn McCauley Corinne Porcher, Esquire Medicaid Contract Management Smith & Associates Agency for Health Care Administration 3301 Thomasville Road, Suite 201 (Electronic Mail) Tallahassee, FL 32308 (U.S. Mail) Lynne Quimby-Pennock Brandia Presha, Owner/Administrator Administrative Law Judge Personal Care & Personal Care II Division of Administrative Hearings 120 8" Avenue West (Electronic Mail) Bradenton, FL 34208 (U.S. Mail) J. D. Parrish Tamika Presha Administrative Law Judge 120 8"" Avenue West Division of Administrative Hearings Bradenton, FL 34208 (Electronic Mail) (U.S. Mail) NOTICE OF FLORIDA LAW. 408.804 License required; display.-- (1) It is unlawful to provide services that require licensure, or operate or maintain a provider that offers or provides services that require licensure, without first obtaining from the agency a license authorizing the provision of such services or the operation or maintenance of such provider. (2) A license must be displayed in a conspicuous place readily visible to clients who enter at the address that appears on the license and is valid only in the hands of the licensee to whom it is issued and may not be sold, assigned, or otherwise transferred, voluntarily or involuntarily. The license is valid only for the licensee, provider, and location for which the license is issued. 408.812 Unlicensed activity.-- (1) A person or entity may not offer or advertise services that require licensure as defined by this part, authorizing statutes, or applicable rules to the public without obtaining a valid license from the agency. A licenseholder may not advertise or hold out to the public that he or she holds a license for other than that for which he or she actually holds the license. (2) The operation or maintenance of an unlicensed provider or the performance of any services that require licensure without proper licensure is a violation of this part and authorizing statutes. Unlicensed activity constitutes harm that materially affects the health, safety, and welfare of clients. The agency or any state attorney may, in addition to other remedies provided in this part, bring an action for an injunction to restrain such violation, or to enjoin the future operation or maintenance of the unlicensed provider or the performance of any services in violation of this part and authorizing statutes, until compliance with this part, authorizing statutes, and agency rules has been demonstrated to the satisfaction of the agency. (3) It is unlawful for any person or entity to own, operate, or maintain an unlicensed provider. If after receiving notification from the agency, such person or entity fails to cease operation and apply for a license under this part and authorizing statutes, the person or entity shall be subject to penalties as prescribed by authorizing statutes and applicable rules. Each day of continued operation is a separate offense. (4) Any person or entity that fails to cease operation after agency notification may be fined $1,000 for each day of noncompliance. (5) When a controlling interest or licensee has an interest in more than one provider and fails to license a provider rendering services that require licensure, the agency may revoke all licenses and impose actions under s. 408.814 and a fine of $1,000 per day, unless otherwise specified by authorizing statutes, against each licensee until such time as the appropriate license is obtained for the unlicensed operation. (6) In addition to granting injunctive relief pursuant to subsection (2), if the agency determines that a person or entity is operating or maintaining a provider without obtaining a license and determines that a condition exists that poses a threat to the health, safety, or welfare of a client of the provider, the person or entity is subject to the same actions and fines imposed against a licensee as specified in this part, authorizing statutes, and agency rules. (7) Any person aware of the operation of an unlicensed provider must report that provider to the agency.
The Issue Whether Petitioner is entitled to temporary licensure as a physician assistant pending her successful completion of the licensure examination.
Findings Of Fact Petitioner is an applicant to sit for the examination for licensure as a physician assistant in Florida. Petitioner was found by Respondent to be eligible to sit for the licensure examination. Petitioner also requested a temporary certificate as a physician assistant, which request was denied by the Respondent. In requesting temporary certification, Petitioner relies on the provisions of Section 458.347(7)(b), Florida Statutes, which provide, in pertinent part, as follows: (b)1. . . . [T]he department shall examine each applicant who the board certifies: Has completed the application form ... Is an unlicensed physician who graduated from a foreign medical school listed with the World Health Organization .. Has applied for certification as a physician assistant in this state between July 1, 1990, and June 30, 1991. Was a resident of this state on July 1, 1990. . . The board may grant temporary certification to an applicant who meets the requirements of subparagraph 1. Petitioner's application to sit for the examination for licensure as a physician assistant was granted by an Order entered by the Board of Medicine on March 12, 1992. The Order also denied her request for temporary certification because she had not recently worked in the field of medicine and because she had not received significant continuing education in the interim. The Board determined that Petitioner had not established her ability to currently practice as a physician assistant with reasonable skill and safety to the public. The Board determined that Petitioner could establish that ability by passing the licensure examination. Petitioner graduated from medical school in Ecuador in December 1975. Between March 1976 and April 1980, she was in medical residency in Ecuador. She has not practiced medicine since April 30, 1980, when she moved from Ecuador to the United States. Physician assistants in Florida work under the supervision of a supervising physician. A physician assistant is permitted to examine patients, to diagnose conditions, and to prescribe treatment plans. Because of the rapid changes that occur in the field of medicine, the current ability to practice as a physician assistant should be demonstrated. The applicant can demonstrate that current ability through recent practice, through recent education, or through examination. Petitioner's testimony and the documentary evidence she presented at the formal hearing fail to establish that she is currently able to practice as a physician assistant with reasonable skill and safety to the public. She has not practiced medicine since 1980. Her participation in a program at the University of Miami School of Medicine in December 1991 and her volunteer work for Dr. Rodolfo Binker from August 1991 to November 1991, do not establish her current ability. The evidence offered by Petitioner as to continuing medical education likewise fail to establish her current ability. Both the quality and the quantity of her continuing education fail to meet the level of continuing education required of physician assistants.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order denying Petitioner's application for temporary certification as a physician assistant. DONE AND ORDERED this 28th day of July, 1993, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 28th day of July, 1993. COPIES FURNISHED: John H. Duhig, Esquire 702 National Bank Building 25 West Flagler Street Miami, Florida 33130-1770 Allen R. Grossman, Esquire Office of the Attorney General Plaza Level 01, The Capitol Tallahassee, Florida 32399-1050 Dorothy Faircloth, Executive Director Department of Professional Regulation Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue in this matter is whether the Department of Health should discipline Respondent’s clinical social worker’s license.
Findings Of Fact The Department is the state agency charged with regulating the practice of clinical social work in Florida. See § 20.43 and chs. 456 and 491, Fla. Stat. Respondent is a licensed clinical social worker in the State of Florida, having been issued license number SW 14255 on February 14, 2017. Respondent received his Licensed Master Social Work degree in New York in May 2006. Between August 2013 and August 2017, Respondent worked as a clinical social worker/psychotherapist at Compass Counseling Services, LLC (“Compass Counseling”), in Orlando, Florida. The Department seeks to discipline Respondent based on an incident that occurred on July 19, 2017. The Department accuses Respondent of committing “sexual misconduct” with a patient. The Administrative Complaint specifically alleges that, during a counseling session in his office, Respondent: told Patient L.P.[7/] that she was attractive, followed Patient L.P. to the door and grabbed her buttocks with his hand, and, grabbed Patient L.P.’s arm, pulled her towards him, and attempted to kiss her. “Sexual misconduct” in the practice of clinical social work, mental health counseling, or psychotherapy is prohibited under section 491.0111. “Sexual misconduct” is defined by rule 64B4-10.002, which provides: (1) It is sexual misconduct for a psychotherapist to engage, attempt to engage, or offer to engage a client in sexual behavior . . . whether verbal or physical, which is intended to be sexually arousing, including kissing; . . . or the touching by either the psychotherapist or the client of the other’s breasts, genital areas, buttocks, or thighs, whether clothed or unclothed. Section 491.009(1)(k) authorizes the Department to discipline Respondent for “sexual misconduct” up to and including permanent revocation of his clinical social worker’s license. In July 2017, L.P. was 27 years old. She was (and is currently) living with a transgender man, Kode Hulett. L.P. refers to Mr. Hulett as her husband, although they are not legally married as of yet. At the final hearing, L.P. testified that she suffers from a number of mental health conditions including Attention- Deficit/Hyperactivity Disorder (“ADHD”), auditory processing disorder, and bipolar disorder, as well as anxiety, anger issues, depression, insomnia, and mood disorder. In addition, L.P. experiences post-traumatic stress disorder (“PTSD”) stemming from past sexual abuse. During her testimony, L.P. also disclosed that she has a very bad memory and gets confused very easily. She urged, however, that her ailments do not affect her mental awareness. Conversely, L.P. is considered fully “disabled” in that she cannot work due to her mental health illnesses. L.P. explained that she has received mental health counseling since she was young. In June and July 2017, L.P. received psychotherapy services from Respondent at Compass Counseling. L.P. relayed that she was searching for a new therapist and (to the best of her memory) her insurance company recommended Compass Counseling. L.P. and Respondent met on three occasions, June 23, 2017, July 6, 2017, and July 19, 2017. Each appointment started at 1:00 p.m. and lasted approximately an hour. During all sessions, L.P. met with Respondent alone in his office, with the door closed. At L.P.’s first visit, Respondent initially informed L.P. that he was leaving Compass Counseling shortly for another job. Therefore, he offered to refer her to another mental health therapist (Ashlyn Douglass-Barnes, L.C.S.W.) if she so desired. Until he left, however, he was willing to meet with her. (In August 2017, Respondent departed Compass Counseling for a job with Magellan Behavioral Health. There, he manages a customer- provider call center and does not treat patients.) During their first session on June 23, 2017, Respondent colloquially introduced himself as “Dr. G.” Respondent then conducted an initial evaluation of L.P. and prepared a Complete Evaluation/Biopsychosocial Assessment. In his assessment, Respondent recorded that L.P. chiefly complained of “mood swings, anxiety, insomnia, attentional issues, auditory processing issues, and post traumatic stress.” He added that L.P. had experienced panic attacks two to three times a month for years, as well as depressive disorder. Respondent also wrote that L.P. experienced anxiety symptoms “a few times a week.” Finally, Respondent noted that L.P.’s PTSD resulted from several instances of physical and sexual abuse she suffered as a youth and a young adult. Despite her issues, Respondent wrote that L.P. appeared: [C]alm, friendly, happy, attentive, communicative, well groomed, overweight, and relaxed. . . . [L.P.’s] behavior in the session was cooperative and attentive with no gross behavioral abnormalities. Respondent recorded the following diagnoses: bipolar II disorder, panic disorder [episodic paroxysmal anxiety], and (chronic) PTSD. Regarding L.P.’s PTSD, Respondent remarked that L.P. suffered from flashbacks to the traumatic event, which resulted in feelings of detachment or estrangement from others. Respondent also documented that L.P. was prescribed several psychotropic medications including Effexor and Lamictal. (Other medical records from 2017 indicate that L.P. was also prescribed and/or taking Alprazolam, BuSpar, Concerta, Doxepin, Geodon, Hydrocodone/Acetaminophen, Lamotrigine, Meclizine, Omeprazole, Oxycodone, Quetiapine Fumarate, Promethazine, Robaxin, Rozerem, Seroquel, Sucralfate, Venlafaxine, Xanax, and Zyprexa.) As part of his assessment, Respondent formulated a six- month treatment plan for L.P., which included ongoing individual psychotherapy sessions. During their second psychotherapy session on July 6, 2017, Respondent again wrote that L.P. appeared: [C]alm, friendly, happy, attentive, communicative, casually groomed, over weight, and relaxed. . . . Mood presents as normal with no signs of either depression or mood elevation . . . thinking is logical, and thought content appears appropriate. . . . Judgment appears fair. Respondent recorded that L.P. mainly discussed her issues coping with depression and impulsivity. Respondent responded by providing “unconditional positive regard, as well as support and encouragement in [L.P.’s] therapeutic endeavors.” Respondent identified “Anxiety” and “Depressed Mood” as L.P.’s active problems in need of treatment. L.P. and Respondent met for their third (and final) appointment on July 19, 2017. During this session, Respondent recorded in L.P.’s Progress Notes that she appeared stable and made no psychiatric complaints. Respondent described L.P. as: [C]oherent and spontaneous. Mood presents as normal with no signs of either depression or mood elevation. Affect is appropriate, full range, and congruent with mood. Associations are intact and logical. There are no apparent signs of hallucinations, delusions, bizarre behaviors, or other indicators of psychotic process. Associations are intact, thinking is logical, and thought content appears appropriate. . . . Judgment appears fair. There are no signs of hyperactive or attentional difficulties. Respondent, once again, identified “anxiety” as L.P.’s active problem, which manifested in PTSD. Respondent wrote that “Clinician provides unconditional positive regard, as well as support and encouragement in [L.P.’s] therapeutic endeavors. . . . A Client-Centered and Empowerment therapeutic approach was used in session to assist [L.P.] in recognizing personal strengths, as well as how to use them to manage presenting problems.” The incident in question occurred just after L.P. and Respondent finished their final session. As was typical, L.P. and Respondent were alone in his office, and the door was closed. Initially, although Respondent was leaving Compass Counseling soon, he asked if L.P. would schedule one last appointment with him. L.P. agreed. She stood by his desk as they selected another date on his computer calendar. At that point, L.P. turned and walked to the door to leave the room. Just as she reached the door, L.P. testified that she felt Respondent’s hand grab her right buttock in a “very sexual” manner. L.P. spun around, swatted his hand away, and exclaimed, “What the f***? I’m married.” She then pivoted back to the door. L.P. asserted that when she reached for the door knob, however, Respondent grabbed her wrist. L.P. stated that she then heard Respondent say, “You’re just really attractive.” L.P. expressed that she turned toward Respondent, he leaned in close to her. She sensed (by her “intuition”) that he wanted to kiss her, but he did not. L.P. testified that she pushed him away and again said, “What the f***? I’m married.” L.P. was then able to open the door and leave Respondent’s office. When L.P. exited Respondent’s office, he accompanied her down the hallway. They walked together through the office lobby and out of the building. In the parking lot, they separated. L.P. walked to her car, where Mr. Hulett was waiting in the driver’s seat. Respondent went to his car and retrieved a business card for an auto shop. Respondent then walked over to L.P.’s car. He approached Mr. Hulett in the driver’s seat and offered him the business card. Mr. Hulett cracked down the window and accepted the card. At that point, Mr. Hulett and L.P. drove away from Compass Counseling for a trip they had previously planned for St. Augustine. Mr. Hulett testified at the final hearing in support of L.P.’s story. Mr. Hulett and L.P. have lived together for over nine years. He “believed” he accompanied L.P. on her visit to Compass Counseling on July 19, 2017. During L.P.’s counseling session, Mr. Hulett waited in his car in the parking lot. While he did not witness L.P.’s encounter with Respondent, Mr. Hulett described L.P.’s behavior and demeanor immediately following her appointment. Mr. Hulett saw L.P. and Respondent exit the Compass Counseling building together after her appointment. He then observed Respondent motion for L.P. to come to his car. He watched as L.P., instead of following Respondent, headed to their car and climbed into the passenger seat. He stated that Respondent then approached their car and offered him a business card for a car mechanic through his driver’s side window. (Mr. Hulett confirmed that his car was having engine troubles.) During this interaction, Mr. Hulett testified that he immediately noticed that L.P. was not acting “regular.” She seemed nervous, and he sensed something was wrong. L.P., however, stayed silent. He then drove away from Compass Counseling. Mr. Hulett explained that they had planned to leave for St. Augustine immediately after L.P.’s appointment. After they started driving, however, Mr. Hulett noticed that L.P. appeared “physically upset.” Therefore, he repeatedly asked her what was wrong. Around 20 minutes later, after they reached the highway (I-4), L.P. opened up to him. Mr. Hulett testified that L.P. told him what had happened in Respondent’s office. Mr. Hulett specifically recalled that L.P., who had started crying, said that Respondent touched her inappropriately; she told him to stop, but he was persistent. At that point, Mr. Hulett and L.P. discussed what to do next. They decided to press on with their vacation. They would deal with the matter when they returned to Orlando. Mr. Hulett disclosed that they did not report the incident until after their trip ended, five days later. At the final hearing, L.P. testified that she waited to tell Mr. Hulett what had transpired in Respondent’s office because she feared his reaction. She was afraid Mr. Hulett would angrily and rashly confront Respondent. Instead, after she recounted Respondent’s conduct, L.P. and Mr. Hewlett continued on their vacation to St. Augustine. On the other hand, L.P. asserted that she called Compass Counseling 20 to 30 minutes after they drove away to cancel her next appointment with Respondent. L.P.’s cell phone records document three calls to Compass Counseling on July 19, 2017. Two were placed prior to her 1:00 p.m. appointment (12:18 p.m. and 12:23 p.m.). A third call was made at 2:04 p.m., approximately nine minutes after Respondent’s Progress Notes record that he finished L.P.’s counseling session (1:55 p.m.). The final call lasted one minute and 29 seconds. No evidence was presented documenting the subject matter of the 2:04 p.m. call. During her testimony, L.P. hesitantly agreed that the 2:04 p.m. call was the one during which she cancelled her appointment. (L.P. was under the impression that she met with Respondent from 12:00 p.m. to 1:00 p.m. on July 19, 2017. However, she conceded that she would not have phoned Compass Counseling at 12:18 p.m. or 12:23 p.m. if she was actually in her therapy session with Respondent at that time.) Other than the phone call to Compass Counseling at 2:04 p.m., L.P. did not contact any person or entity to report the incident until five days later on July 24, 2017. After leaving Respondent’s care, L.P. received psychotherapeutic counseling from Ashlyn Douglass-Barnes, a licensed clinical social worker who currently works at Jewish Family Services in Winter Park, Florida. Before Jewish Family Services, Ms. Douglass-Barnes worked at Compass Counseling from March 2014 through February 2017, where she met Respondent. Respondent referred L.P. to Ms. Douglass-Barnes during their first meeting on June 23, 2017. He contacted Ms. Douglass- Barnes through Facebook messenger. Respondent wrote: I have an intake today that would like to work with a female clinician. I have advised her that I am not going to be here much longer, and that I’d happily connect her with someone who is empathic, caring, and warm. I think this would be a perfect fit. . . . She’s 27 y.o. as well and is very sweet. Before Ms. Douglass-Barnes met L.P. for their first appointment, however, L.P. called her on July 24, 2017. Ms. Douglass-Barnes testified that L.P. expressed that “I need to tell you something, but it has to stay between us.” With Ms. Douglass-Barnes’s encouragement, L.P. confided that “last Wednesday [June 19, 2017], Dr. G. [Respondent] grabbed my butt and tried to kiss me.” Ms. Douglass-Barnes also recalled L.P. telling her that when Respondent grabbed her, she “turned around and yelled at him.” Ms. Douglass-Barnes invited L.P. to come to her office that day. When L.P. arrived at Ms. Douglass-Barnes’s office, L.P. repeated that Respondent made a sexual advancement towards her. Ms. Douglass-Barnes specifically recalled L.P. telling her the following: Respondent touched her butt as their therapy session ended. L.P. then slapped his hand away, and screamed, “What the hell, I’m married.” Respondent also tried to kiss her. Respondent subsequently told L.P., “I’m so sorry. I’m just so attracted to you.” Ms. Douglass-Barnes reviewed with L.P. all available options to report the incident (law enforcement, complaint to the Department, and Compass Counseling’s insurance carrier). L.P. wanted to exercise all options. Therefore, with L.P.’s acquiescence, Ms. Douglass-Barnes called 911 to report a sexual assault. A deputy sheriff from the Orange County Sheriff’s Office arrived at Ms. Douglass-Barnes’s office approximately 90 minutes later. L.P. provided a written statement to the deputy stating: On Wednesday July 19, 2017 I had an appt. w/ [Respondent]. When I arrived to the appt he brought me into his office and we began our session. When we were done with the session he told me he wanted one more appt with me. I said OK let’s make the appt. We made the appt and when I walked out of his office he grabed [sic] my butt. I slaped [sic] his hand away and said what the f[***] I am married. [Respondent] said he was sorry. You are just really attractive. Then he tried to kiss me and I pushed him away and said what the f[***] dude I am married again. He said he [was] sorry your [sic] just really attractive. I walked out of his office and he walked me out to my car. When I told him I was fine he tried to get me to go with him to his car. I said no I will meet you in my car. . . . He walked up to my car and gave my husband a card for [a] car fixing place. I DID NOT GIVE HIM ANY PERMISSION TO TOUCH ME AT ALL!! I want to prosecute and am willing to go to court for this.[8/] L.P. also told the police that Respondent had never attempted to touch her before the July 19, 2017, incident. Also on July 24, 2017, Ms. Douglass-Barnes, again with L.P.’s consent, prepared a formal complaint with the Department. On the Complaint Form, Ms. Douglass-Barnes indicated “abuse” and “sexual contact” were the reasons for L.P.’s complaint. L.P. signed the form. Ms. Douglass-Barnes faxed the Complaint Form to the Department that day and attached L.P.’s statement to the Sheriff’s Office. In addition, in August 2017, L.P. contacted a personal injury law firm. On March 19, 2018, the law firm wrote Compass Counseling on L.P.’s behalf complaining about the July 19, 2017, incident. The letter demanded $275,000 to settle L.P.’s case. Over the next few days, Respondent reached out to Ms. Douglass-Barnes expressing an urgent need to talk to her. Respondent did not explain his reasoning, although she suspected he was simply seeking support and unaware of her involvement. Ms. Douglass-Barnes avoided directly speaking with Respondent. At Compass Counseling, Ms. Douglass-Barnes considered Respondent a friend and colleague with whom she consulted and talked two to three times a week. Based on their time together, Ms. Douglass-Barnes described Respondent as a very effective therapist and passionate about his practice. She commented that he went over and above to help his clients. However, in light of L.P.’s accusations, on July 26, 2017, she informed Respondent that it was in their best interest not to communicate any further. Ms. Douglass-Barnes has had no contact with Respondent since that date. After meeting on July 24, 2017, L.P. continued to see Ms. Douglass-Barnes for cognitive behavior therapy. They met approximately every month from August 1, 2017, through June 5, 2018. L.P. first discussed her encounter with Respondent on October 4, 2017, during their third session. They also talked about the incident on April 9, 2018, May 8, 2018, and June 5, 2018. As part of her testimony, Ms. Douglass-Barnes also provided her insight into how L.P.’s mental health conditions affected her ability to perceive and understand what was happening around her in July 2017. Ms. Douglass-Barnes conveyed that L.P. has been diagnosed with auditory processing disorder. With this condition, L.P. has difficulty processing information or instructions when she is under emotional pressure or stressed. Auditory processing disorder can also cause L.P. to become confused. Consequently, L.P.’s ability to interact with others is affected. Ms. Douglass-Barnes also commented that L.P. is not manic, but does exhibit some traits of mania. This ailment is evident in L.P.’s impulsiveness. But, it does not affect her perception. Similarly, L.P. presents some traits of borderline personality disorder, but has not been diagnosed with this mental illness. (At the final hearing, Ms. Douglass-Barnes explained that borderline personality disorder is a mental condition characterized by pervasive abnormalities of perception, behavior, thinking, and relationships. Borderline personality disorder causes a person to operate in their own world, i.e., not in reality.) Finally, L.P. does not suffer from psychosis, which would substantially affect her ability to comprehend what is happening around her. Despite these mental health disorders, Ms. Douglass- Barnes testified that she never doubted L.P.’s ability to accurately recognize and understand what happened to her in Respondent’s office on July 19, 2017. Neither does she believe that L.P.’s mental health conditions impair her ability to tell the truth. Ms. Douglass-Barnes testified that, based on her interactions with L.P. and the consistency with which L.P. described the facts and circumstances of the encounter, she believes that L.P. accurately reported that Respondent “sexually touched/assaulted her inappropriately.” After L.P. reported the incident to Ms. Douglas-Barnes, on July 25, 2017, Compass Counseling received a phone call from a caller who did not identify herself. Luz Rosa was working the receptionist desk and took the call. Although the caller did not provide her name, Ms. Rosa was able to match the phone number to L.P. based on the information in her office records. Therefore, Ms. Rosa typed up a report of the call to include in L.P.’s file. (L.P.’s cell phone records from that date document a call that was placed to Compass Counseling at 2:46 p.m., which lasted approximately 10 minutes.) According to Ms. Rosa’s typed report, as well as her testimony at the final hearing, the caller (L.P.) asked about the cost of a first time visit, as well as the amount of the co-pay for follow-up appointments. Ms. Rosa relayed that the first appointment, without a medical plan, was priced at $75.00. The cost of follow-up visits differed depending on the plan. At that point, Ms. Rosa expressed that the caller became very upset. The caller threatened to sue Compass Counseling for charging too much to her medical plan. The report did not include, nor did Ms. Rosa remember, any complaint from the caller regarding Respondent’s services or an incident on July 19, 2017. On August 8, 2017, L.P. called Compass Counseling again. She left a voice mail canceling an appointment. On her message, L.P. relayed that “something else came up.” On August 16, 2017, Compass Counseling received another call from someone who did not identify herself. Dalys Melendez was the front desk coordinator that day and answered the call. Although the caller did not provide her name, Ms. Melendez was able to match L.P. to the phone number through caller ID. Ms. Melendez typed a record of the call and added it to L.P.’s file. (L.P.’s cell phone records also document a call placed to Compass Counseling at 10:40 a.m. that day, which lasted one minute and 34 seconds.) During the call, the caller (L.P.) asked if Respondent was working at Compass Counseling. After Ms. Melendez responded that he was not there, the caller became angry, screamed a profanity, then hung up the phone. At the conclusion of her testimony, L.P. stated that, in response to the July 19, 2017, incident, she wants Respondent’s license taken away. She would also like to see him go to jail. L.P. called Respondent’s actions “disgusting” and “sick.” She voiced that she should have been able to fully trust Respondent and feel safe with him during her therapy sessions, but Respondent violated that trust. L.P. expressed that what Respondent did to her should never happen to anyone else. Respondent elected not to testify at the final hearing.9/ Instead, Respondent contested the Department’s allegations by attacking the veracity of L.P.’s story. Respondent challenged L.P.’s testimony on two fronts. First, Respondent argues that the facts and circumstances surrounding the event do not support L.P.’s narrative. Second, Respondent asserts that L.P. has credibility issues which prevent the Department from meeting its burden of proof based on her testimony. To present a more comprehensive picture of the Compass Counseling office at the time of L.P.’s appointment, Respondent offered the testimony of two individuals who were working in Compass Counseling on the afternoon of July 19, 2017. Karina Flores is a psychotherapist who has provided counseling services at Compass Counseling since 2016. Ms. Flores initially described the Compass Counseling office layout. Compass Counseling operates in a two-story building. Respondent’s office is located on the first floor. The first floor includes a lobby with a receptionist desk. Through a door behind the receptionist desk is a hallway that connects three offices. Office 1 is located at the end of the hall with a door that faces the lobby. Office 2 is the middle office. Office 3 is adjacent to Office 2 and is closest to the lobby. Respondent used the second/middle office. It shared walls on both sides with Offices 1 and 3. On July 19, 2017, as Respondent was finishing his session with L.P., Ms. Flores was sitting in Office 3 waiting to confer with him about one of her clients. Her door was ajar, and she had a clear view of the hallway leading from Respondent’s office to the lobby. Ms. Flores described the hallway as a small, tight location. She also relayed that the office walls were very thin. Consequently, she could “absolutely” hear conversations coming from other offices, as well as the hallway. Ms. Flores has used all three offices for appointments, and her experience is the same: she can “hear anything” that was said in the adjoining offices. Ms. Flores expounded that, although she might not be able to make out individual words, she has clearly heard people crying, laughing, talking, or yelling through the doors and walls. Ms. Flores testified that, while waiting to speak with Respondent, she heard two voices talking back and forth in his office. The conversation was conducted in normal tones. Occasionally, she heard “giggling.” Ms. Flores further recalled that she did not hear either person raise their voice or yell or scream. Neither did she hear any cries of distress. Ms. Flores confidently asserted that if someone had shouted “what the f***? I’m married” twice while standing at the door of Office 2, she would have heard it. Ms. Flores declared that she did not hear any such outburst. What Ms. Flores did hear was the door to Respondent’s office open at the end of his appointment. Then, in her peripheral vision, she saw Respondent walk with a woman wearing a blonde ponytail to the lobby. Ms. Flores recalled that the two were talking “in a friendly manner” as they passed her door. Shortly, thereafter, Respondent returned, and she met him in his office. Ms. Flores “particularly” recalled that Respondent commented that he had just offered his patient information about an auto mechanic. Respondent also mentioned that he met his patient’s spouse and dog. (L.P.’s dog was in the back seat of Mr. Hulett’s car.) Finally, Ms. Flores offered her observations of Respondent’s psychotherapy practice. She found him friendly and professional. He was well-liked and considered a good therapist. Ms. Flores also recalled that Respondent called her about a week after the incident and divulged that he had been accused of sexual misconduct. Ms. Flores testified that Respondent appeared shocked and surprised by the allegations. Dr. Roberta Wildblood was also present at Compass Counseling on July 19, 2017, when L.P. met with Respondent. Dr. Wildblood is a clinical psychologist who has provided services at Compass Counseling since 2015. On July 19, 2017, Dr. Wildblood was scheduled to meet a patient at 2:00 p.m. in Office 1 (her office). However, she did not recall whether she was actually present when L.P. walked out of Office 2 with Respondent. She did not see or hear L.P. in the building that afternoon. However, similar to Ms. Flores, Dr. Wildblood testified that voices can be heard through the office walls. Dr. Wildblood echoed Ms. Flores in that she is not able to discern exact words while sitting in Office 1. Nevertheless, she has heard exclamations from counselors and clients. She has also heard a ball bouncing in another office. Dr. Wildblood also offered her experience working with Respondent. She described him as professional and highly regarded by his peers. She stated that he is gentle, kind, and an effective counselor. For her part, Ms. Douglass-Barnes agreed that voices can be heard through the office walls at Compass Counseling. To try and maintain privacy, Ms. Douglass-Barnes recalled that counselors routinely used noise machines in their rooms, and a radio played in the reception area. To counterbalance Ms. Douglass-Barnes’ testimony regarding the effect of L.P.’s mental health conditions, Respondent called Earl P. Taitt, Jr., M.D., to testify. Dr. Taitt is a psychiatrist who currently runs a private practice in Orlando, Florida. He is board-certified in psychiatry and neurology, as well as forensic medicine. Dr. Taitt testified as an expert in psychiatry. At the final hearing, Dr. Taitt described in detail the effect of the various mental health conditions from which L.P. suffers. He also offered his opinion on how L.P.’s mental illnesses affected her interpersonal functions with Respondent. Dr. Taitt stated that he formed his impressions based on a review of L.P.’s extensive medical and psychotherapy records, as well as his observations of her deposition and live testimony. Conversely, Dr. Taitt was careful to explain that he was not opining on L.P.’s truthfulness during her testimony at the final hearing. Further, he readily acknowledged that he has never personally examined or interviewed L.P. Neither does he possess any personal information regarding L.P.’s interaction with Respondent on July 19, 2017. Dr. Taitt’s diagnostic impression, based on his limited observations, is that L.P. suffers from borderline personality disorder. Dr. Taitt identified signs of borderline personality disorder in L.P.’s history of impulsivity, intense mood changes including anger (her most significant mood symptom), and unstable interpersonal relationships. Dr. Taitt explained that someone with borderline personality disorder exhibits abnormalities of perception relating to interpersonal relationships. Borderline personality disorder creates an impediment to social interactions and a person’s ability to accurately perceive the social interaction. Dr. Taitt opined that L.P.’s borderline personality disorder directly affected her ability to accurately relate to Respondent in his office on July 19, 2017. Consequently, when Respondent informed L.P. that their counseling sessions would be coming to an end, Dr. Taitt suggested that L.P. might have felt “a real or imagined abandonment.” Borderline personality disorder would have caused L.P. to experience a greater vulnerability to the fact that Respondent was leaving her treatment to another therapist. Therefore, L.P.’s report of sexual abuse may have been her vindictive reaction to the imagined abandonment. L.P. was lashing out at Respondent. Dr. Taitt further remarked that borderline personality disorder may have caused L.P. to misrepresent the facts of her narrative based on how she (incorrectly) perceived her interaction with Respondent in his office. Dr. Taitt also commented on the wide range of psychotropic medications L.P. was taking before and after July 19, 2017. He expressed that these medications could have impacted L.P.’s psychological conditions. Dr. Taitt further noted that the medication dosages L.P. was prescribed indicate that she was suffering from severe symptoms. Finally, Dr. Taitt discussed L.P.’s decision to proceed with her five-day trip to St. Augustine instead of immediately reporting the incident. He believed that going on a vacation following a sexual assault is atypical of someone who has actually experienced such misconduct. If L.P. truly encountered the inappropriate touching, Dr. Taitt thought that she would have disclosed it earlier. Lastly, Respondent presented the testimony of several former clients or parents of minor clients (Jessica Rosado, Erika Ana Camacho, and Marta Lopez). These witnesses described Respondent’s counseling methods and personal interactions during his therapy sessions. All were highly complimentary of his professionalism, and stated that Respondent never acted inappropriately with them. None of these witnesses, however, had personal knowledge of the allegations in this matter or knew L.P. Respondent presented them primarily for mitigation purposes. Based on the competent substantial evidence presented at the final hearing, the clear and convincing evidence in the record does not establish that Respondent engaged in behavior “which [was] intended to be sexually arousing” or that he touched L.P.’s buttocks on July 19, 2017. Accordingly, the Department failed to meet its burden of proving that Respondent committed “sexual misconduct,” which would support discipline under section 491.0111 and rule 64B-10.002(1).
Conclusions For Petitioner: Andrew James Pietrylo, Esquire Kristen M. Summers, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 For Respondent: Carol C. Schriefer, Esquire The Health Law Firm 1101 Douglas Avenue Altamonte Springs, Florida 32714
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Clinical Social Work, Marriage and Family Therapy and Mental Health Counseling, enter a final order dismissing the Amended Administrative Complaint against Respondent, Gerard Kruse. DONE AND ENTERED this 16th day of August, 2019, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of August, 2019.
