The Issue The issue is whether Petitioner Thomasina Barnes should be granted an exemption from disqualification from employment pursuant to Section 435.07, Florida Statutes.
Findings Of Fact In January of 1976, Petitioner was caught shoplifting merchandise from a retail clothing store. The police recovered the stolen property in the parking lot where they arrested Petitioner. As a result of that incident, Petitioner pled guilty to a charge of Grand Larceny, a third degree felony on May 5, 1976. On December 14, 1988 Petitioner pled no contest to a misdemeanor charge of Offering for the Purpose of Prostitution. Petitioner was suffering from an addiction to alcohol and/or illegal drugs when she committed the above referenced crimes. After her last arrest in 1988, Petitioner continued to be drug dependent but was able to hold down temporary jobs. She worked as a cook at Popeye’s Restaurant, a mail clerk at Southern Bell, and a data processor for Respondent. Petitioner finally realized she needed help to live a drug free life. She checked herself into a drug detoxification program in March of 1993. After completing the medical detoxification program, Petitioner voluntarily entered a residential drug treatment program where she remained until July of 1993. Petitioner then became a resident of an extended care drug treatment program up through December 7, 1993. When Petitioner completed the residential treatment program, she was actively participating in the Alcoholics Anonymous (AA) and Narcotics Anonymous (NA)twelve step programs. Petitioner lived a drug free life for twenty months after being discharged from the residential drug treatment program. She had one relapse in 1995. However, Petitioner immediately returned to NA treatment and continued working her twelve step program. Petitioner has not abused any substance in two years. She has maintained a close relationship with her NA sponsor during that time. Her involvement with NA activities has progressed over time. She now serves as a sponsor for other members of NA. She is an officer in her NA home group. Petitioner has become an active member of her church. She sings in the choir, serves as choir secretary, leads devotions, and acts as program leader. Petitioner is also active in her community. One activity she particularly enjoys is helping with her nephew’s little league baseball team. Petitioner currently is employed as an intake coordinator/receptionist at the I.M. Salzbacher Center for the Homeless. Sometime prior to August 23, 1996, Petitioner began working a second job in the evenings at Vannie Edwards Foster Group Home as a cook and house cleaner for six disabled male clients. The clients have mental and physical disabilities and are unable to function independently. In addition to her cooking and cleaning duties, Petitioner also served as a companion and mother figure to the clients. She would sometimes stay at the group home overnight but her normal work hours were from 4:00 p.m. to 9:00 p.m. Petitioner considered this position as an additional means to make “living amends.” On or about August 23, 1996, Respondent advised Petitioner that she was disqualified from continuing employment as a caretaker in a developmental services facility such as the Vannie Edwards Foster Group Home. Petitioner filed a request for exemption from disqualification on or about September 5, 1996. Respondent scheduled an Exemption Hearing for September 18, 1996. After the Exemption Hearing, Respondent denied Petitioner’s request for exemption from disqualification by letter dated September 19, 1996.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered granting Petitioner an exemption from disqualification from employment as a caretaker in a developmental services facility. DONE and ENTERED this 19th day of March, 1997 in Tallahassee, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 19th day of March, 1997. COPIES FURNISHED: Roger L.D. Williams, Esquire Department of Children and Families Post Office Box 2417 Jacksonville, FL 32231-0083 Thomasina Barnes 4818 Foxboro Road Jacksonville, FL 32208 Gregory D. Venz, Agency Clerk Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, FL 32388-0700 Richard A. Doran, Esquire Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, FL 32388-0700
The Issue The issues presented for resolution in the two consolidated cases are whether Rule 10E-16.004 (27), Florida Administrative Code, is an invalid exercise of delegated legislative authority, and whether Petitioner violated that rule on a specified occasion and is subject to fine or other penalty.
Findings Of Fact Petitioner, Associated Counselling and Education, Inc., doing business as Substance Abuse Family Education (SAFE), is a Florida corporation doing business in Orange County, Florida. SAFE provides substance abuse treatment to adolescents, mostly within the ages of twelve (12) to eighteen (18) years, with a few young adults who have turned nineteen while in treatment. The Department of Health and Rehabilitative Services (HRS) is the state agency with statutory authority to license and regulate certain treatment programs, including SAFE. At all times material to this proceeding HRS has licensed SAFE to provide substance abuse treatment services in a category titled "non-residential day and night treatment with a host home component." SAFE is not licensed as a secure facility or an addictions receiving facility. SAFE uses a program similar to the Alcoholic Anonymous twelve-step program as a tool for rehabilitating drug abusing juveniles. The program includes five phases through which the clients progress at varying rates. The "first phase" describes clients who are new to the program. As clients progress they enter into stages of increasing responsibility and freedom, until they are able to graduate and return to the everyday world. The program requires that the youths' parents or legal guardians admit them into treatment, even when children are referred by a court, by HRS or another source. The program requires rigorous participation by the parents and any siblings of the client. SAFE's contract for treatment includes a voluntary withdrawal provision which requires that the client request withdrawal through a "chain of command." The purpose of the deliberate, several-step process is to avoid withdrawal on an impulsive or transitory whim of the client. SAFE's rules, including the withdrawal provision, are explained to the client at the beginning of treatment and are reviewed daily with the clients. Clients who are just starting in the program, "first phasers," spend their days at the program and are placed at night with host parents, generally parents with experience in the program through their own children's participation. Staff and host parents are trained in crisis intervention and aggression control techniques through an HRS sanctioned training program. The techniques are progressive; they range from verbal intervention, to putting an arm around a client's shoulder, to physically forcing a client to the floor when the client has threatened to injure himself or others. SAFE contends that when a client attempts to leave treatment without going through the withdrawal process and without involving the parents or guardians in the process, the client is in serious danger of injuring himself or others immediately following departure from the program. SAFE uses physical intervention as a last resort to prevent clients from leaving the program without going through the "chain of command." At night, however, such intervention is used by host parents only to restrain dangerously aggressive behavior. SAFE instructs its host parents to not physically stop a child from leaving the host home. S. B. was a "first phaser" in SAFE's program in August 1993. During dinner one evening he had been staring or glaring at other clients and acting in a provoking and disruptive manner. After dinner, during an organized "rap" session, several clients were called on to confront S. B.'s behavior. He reacted by throwing a chair, across several rows of clients, at the client who was confronting him. Then he bolted, or attempted to bolt, from the room through the exit door. He was restrained by staff, was calmed, and he returned to his seat. Very shortly after he returned to his seat S. B. began staring or glaring at a client by the exit door. He jumped up and ran for the door. Again, he was physically restrained as he kicked, fought and yelled with anger. Staff person Pamela Mardis was one of the persons who participated in the restraint of S. B. on August 27, 1993. She considered the client to be in harm's way if he were permitted to leave the program without the assurance of proper safeguard for his well-being and safety. The January 12, 1994 amended notice of violation provided by HRS to Loretta Parrish, SAFE's owner and executive director, states, in pertinent part: As an amended complaint, the following incidents have been found to be in violation of 10E-16, F.A.C., requirements and are therefore subject to administrative fines: * * * August 27, 1993, 5:20 p.m., (report written August 27, 1993, 6:45 p.m.) in which a client was restrained in an effort to keep the client from leaving treatment, your agency will be fined $100 for non-compliance with 10E-16.004 (27)(a), F.A.C., requirements. (Petitioner's exhibit no. 6) HRS interprets its rule to prohibit restraint when the perceived danger to the client is in leaving and getting back on drugs. SAFE contends that to let one client leave voluntarily without going through the withdrawal procedures would mean that all of the clients, adolescents with poor decision-making skills, would walk out. There is a program in Palm Beach County, Florida, purportedly similar to SAFE, called Growing Together, Inc. On January 22, 1994, HRS and Growing Together, Inc., entered into a stipulated Final Declaratory Judgement in case no. CL93-9599-AO, in the Circuit Court of the Fifteenth Judicial Circuit, in and for Palm Beach County, Florida, which provided, in pertinent part: In the absence of a Court Order restricting the rights of a parent or legal guardian to control decisions affecting the health and welfare of a minor, Growing Together, Inc., may act upon the request of a parent or legal guardian in accepting a minor client for substance abuse treatment regardless of the minor's objections. In the absence of a Court Order limiting the authority of a parent or legal guardian to control decisions affecting the health and welfare of a minor, Growing Together, Inc., may reasonably restrict minor clients from terminating their participation in treatment contrary to the express direction of a parent or legal guardian. So long as the minor's rights to challenge the reasonableness of restrictions imposed at the express direction of a parent or legal guardian are protected -- that is, so long as the minor is informed of his or her rights and is provided a practical means by which to exercise those rights -- Growing Together, Inc., may continue to act in loco parent) in declining to release a minor from treatment where such release is against the will of a parent or legal guardian and no court order has been issued to direct otherwise. The State of Florida, Department of Health and Rehabilitative Services is hereby prohibited from taking any action contrary to the legal principles enunciated herein and is expressly prohibited from enforcing any interpretation of F.S. Section 397.601 which interpretation is contrary to the findings of this Judgement. (Petitioner's exhibit no. 7)
The Issue The issue is whether denial of Petitioner's application for an exemption to disqualification from employment as a certified nursing assistant (CNA) in a long-term care facility is proper.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Agency for Health Care Administration enter a final order denying Petitioner's, Julian Butler, request for exemption from employment, pursuant to Chapter 435, Florida Statutes. DONE AND ENTERED this 21st day of May 2001, in Tallahassee, Leon County, Florida, FRED L. BUCKINE 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 21st day of May, 2001. COPIES FURNISHED: Edward A. Tellechea, Esquire Office of Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Julian Butler 1305 Woodbine Street Clearwater, Florida 33762 Ruth R. Stiehl, Ph.D., R.N., Executive Director Board of Nursing Department of Health 4080 Woodcock Drive, Suite 202 Jacksonville, Florida 32207-2714 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way Bin A00 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1701
Conclusions THIS CAUSE came before the State of Florida, Agency for Health Care Administration (“the Agency") regarding Certificate of Need (“CON”) Application No. 10198, which sought the establishment of a 92-bed acute care general hospital, proposed to be located in Duval County, Florida, District 4. The Agency preliminarily approved the application. 1. On December 10, 2013, the Agency published notice of its preliminary decision to approve CON Application 10198, submitted by Shands Jacksonville Medical Center, Inc., d/b/a UF Health Jacksonville, which sought the establishment of a 92-bed acute care general hospital, proposed to be located in Duval County, Florida, District 4. 2. On December 30, 2013, Memorial Healthcare Group, Inc. d/b/a Memorial Hospital Jacksonville (“Memorial”), timely filed a petition for formal administrative hearing to contest the preliminary approval of CON Application 10198. 3. The matter was referred to the Division of Administrative Hearings (DOAH), where it was assigned Case No. 14-0123CON. Filed July 21, 2014 1:02 PM Division of Administrative Hearings 4. On July 3, 2014, Memorial filed a Notice of Voluntary Dismissal. 5. On July 7, 2014, the DOAH issued an Order Closing File and Relinquishing Jurisdiction to the Agency. It is therefore ORDERED: 6. The Agency’s preliminary decision to approve CON Application No. 10198 is UPHELD subject to the conditions noted in the State Agency Action Report. ORDERED in Tallahassee, Florida, on this f x day of eeley , 2014. Elizabeth Agency for Health 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 1 CERTIFY that a true and correct copy of this Final Order was served on the below- BE 45 named persons by the method designated on this SL K day of a , 2014. —4 : FS Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308 (850) 412-3630 R. Bruce McKibben Administrative Law Judge Division of Administrative Hearings (Electronic Mail) Lorraine M. Novak, Esquire Office of the General Counsel Agency for Health Care Administration Lorraine. Novak@ahca.myflorida.com (Electronic Mail) Stephen A. Ecenia, Esquire Rutledge, Ecenia and Purnell, P.A. Post Office Box 551 Tallahassee, Florida 32302-0551 Steve@reuphlaw.com (Electronic Mail) Seann M. Frazier, Esquire Jonathan L. Rue, Esquire Parker, Hudson, Rainer and Dobbs, LLP 215 South Monroe Street, Suite 750 Tallahassee, Florida 32301 Sfrazier@phrd.com Jlr@phrd.com (Electronic Mail) Karl David Acuff, Esquire Law Offices of Karl David Acuff 1615 Village Square Blvd., Suite 2 Tallahassee, Florida 32309-2770 Kdacuff@fioridacourts.com (Electronic Mail) James McLemore, Supervisor Certificate of Need Unit Agency for Health Care Administration James.McLemore@ahca.myflorida.com (Electronic Mail) Marisol Fitch Health Services & Facilities Consultant Certificate of Need Unit Agency for Health Care Administration Marisol. Fitch@ahca.myflorida.com (Electronic Mail)
The Issue The issue for determination is whether Petitioner's Medicaid provider number should be cancelled.
Findings Of Fact I.M.P.A.C.T. Institute, Inc. (Petitioner) provides primarily counseling services to residents of Broward County and the surrounding areas. The majority of the residents who receive Petitioner's services are low income, have language barriers and have little education. Petitioner provides a valuable and important service to the community that it serves. At all times material hereto, Petitioner was licensed by the Department of Health and Rehabilitative Services in accordance with Chapter 397, Florida Statutes. Petitioner was issued its regular license on December 29, 1994. At all times material hereto, Petitioner was enrolled as a community mental health provider in the Florida Medicaid program pursuant to Subsection 409.906(8), Florida Statutes. Petitioner has been enrolled in the Medicaid program for approximately three years. At all times material hereto, Petitioner has been issued a Medicaid provider number which has been continuously renewed. Petitioner is currently receiving Medicaid reimbursement for community mental health services pursuant to Subsection 409.906(8), Florida Statutes. On June 10, 1994, Petitioner executed a Medicaid Provider Agreement (Agreement). The Agreement provides in pertinent part: The provider and the Department [Depart- ment of Health and Rehabilitative Services] agree to abide by the Florida Administrative Code, Florida Statutes, policies, procedures, manuals of the Florida Medicaid Program and Federal laws and regulations. The agreement may be terminated upon thirty days written notice by either party. The Department may terminate this agreement in accordance with Chapter 120, F.S. Respondent has a handbook which describes, among other things, the community mental health services program and provider participation requirements. Effective December 1995, the handbook provides in pertinent part: Community mental health services are governed . . . through the authority of Chapter 409.906(8), Florida Statutes. * * * To be eligible to be enrolled in Medicaid, a provider must have a current contract pursuant to the provisions of Chapter 394, Florida Statutes, for the provision of community mental health services; and, if applicable, a regular (i.e., not provisional or interim) license as an alcohol prevention and treatment or drug abuse treatment and prevention program from the district Depart- ment of Health and Rehabilitative Services (HRS), Alcohol, Drug Abuse and Mental Health (ADM) program office. Petitioner does not have a contract with the Department of Health and Rehabilitative Services, Alcohol, Drug Abuse and Mental Health (ADM) program office. Petitioner has been attempting to obtain a contract with the Health and Rehabilitative Services ADM program office but has been unable to do so because the Health and Rehabilitative Services ADM office has had no money to fund such a contract. Respondent is cancelling Petitioner's Medicaid provider number because Petitioner does not have a contract with the Health and Rehabilitative Services ADM program office.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order terminating I.M.P.A.C.T. Institute, Inc.'s Medicaid provider contract and cancelling its Medicaid provider number. DONE AND ENTERED on this 8th day of October, 1996, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 8th day of October, 1996. APPENDIX The following rulings are made on the parties' proposed findings of fact: Petitioner Partially accepted in finding of fact 1. Partially accepted in finding of fact 1. Partially accepted in finding of fact 4. Rejected as being argument, or a conclusion of law. Rejected as being argument, or a conclusion of law. Rejected as being argument, or a conclusion of law. Partially accepted in findings of fact 5, 8, and 9. Rejected as being subordinate, irrelevant, or unnecessary. Respondent Partially accepted in finding of fact 2. Partially accepted in finding of fact 3. Partially accepted in finding of fact 6. Partially accepted in finding of fact 5. Partially accepted in finding of fact 7. Partially accepted in finding of fact 8. NOTE: Where a proposed finding has been partially accepted, the remainder has been rejected as being subordinate, irrelevant, unnecessary, cumulative, not supported by the evidence, argument, or a conclusion of law. COPIES FURNISHED: Jason H. Clark, Esquire Post Office Box 17486 West Palm Beach, Florida 33416 Roger R. Maas, Esquire Agency for Health Care Administration 2727 Mahan Drive, Ft. Knox No. 3 Tallahassee, Florida 32308-5403 Sam Power, Agency Clerk Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308-5403 Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308-5403
The Issue The issues presented for resolution in the two consolidated cases are whether Rule 10E-16.004(27), Florida Administrative Code, is an invalid exercise of delegated legislative authority, and whether Petitioner violated that rule on a specified occasion and is subject to fine or other penalty.
Findings Of Fact Petitioner, Associated Counselling and Education, Inc., doing business as Substance Abuse Family Education (SAFE), is a Florida corporation doing business in Orange County, Florida. SAFE provides substance abuse treatment to adolescents, mostly within the ages of twelve (12) to eighteen (18) years, with a few young adults who have turned nineteen while in treatment. The Department of Health and Rehabilitative Services (HRS) is the state agency with statutory authority to license and regulate certain treatment programs, including SAFE. At all times material to this proceeding HRS has licensed SAFE to provide substance abuse treatment services in a category titled "non-residential day and night treatment with a host home component." SAFE is not licensed as a secure facility or an addictions receiving facility. SAFE uses a program similar to the Alcoholic Anonymous twelve-step program as a tool for rehabilitating drug abusing juveniles. The program includes five phases through which the clients progress at varying rates. The "first phase" describes clients who are new to the program. As clients progress they enter into stages of increasing responsibility and freedom, until they are able to graduate and return to the everyday world. The program requires that the youths' parents or legal guardians admit them into treatment, even when children are referred by a court, by HRS or another source. The program requires rigorous participation by the parents and any siblings of the client. SAFE's contract for treatment includes a voluntary withdrawal provision which requires that the client request withdrawal through a "chain of command." The purpose of the deliberate, several-step process is to avoid withdrawal on an impulsive or transitory whim of the client. SAFE's rules, including the withdrawal provision, are explained at the beginning of treatment and are reviewed daily with the clients. Clients who are just starting in the program, "first phasers," spend their days at the program and are placed at night with host parents, generally parents with experience in the program through their own children's participation. Staff and host parents are trained in crisis intervention and aggression control techniques through an HRS-sanctioned training program. The techniques are progressive; they range from verbal intervention, to putting an arm around a client's shoulder, to physically forcing a client to the floor when the client has threatened to injure himself or others. SAFE contends that when a client attempts to leave treatment without going through the withdrawal process and without involving the parents or guardians in the process, the client is in serious danger of injuring himself or others immediately following departure from the program. SAFE uses physical intervention as a last resort to prevent clients from leaving the program without going through the "chain of command." At night, however, such intervention is used by host parents only to restrain dangerously aggressive behavior. SAFE instructs its host parents to not physically stop a child from leaving the host home. S. B. was a "first phaser" in SAFE's program in August 1993. During dinner one evening he had been staring or glaring at other clients and acting in a provoking and disruptive manner. After dinner, during an organized "rap" session, several clients were called on to confront S. B.'s behavior. He reacted by throwing a chair, across several rows of clients, at the client who was confronting him. Then he bolted, or attempted to bolt, from the room through the exit door. He was restrained by staff, was calmed, and he returned to his seat. Very shortly after he returned to his seat S. B. began staring or glaring at a client by the exit door. He jumped up and ran for the door. Again, he was physically restrained as he kicked, fought and yelled with anger. Staffperson Pamela Mardis was one of the persons who participated in the restraint of S. B. on August 27, 1993. She considered the client to be in harm's way if he were permitted to leave the program without the assurance of proper safeguard for his well-being and safety. The January 12, 1994 amended notice of violation provided by HRS to Loretta Parrish, SAFE's owner and executive director, states, in pertinent part: As an amended complaint, the following incidents have been found to be in violation of 10E-16, F.A.C., requirements and are therefore subject to administrative fines: * * * August 27, 1993, 5:20 p.m., (report written August 27, 1993, 6:45 p.m.) in which a client was restrained in an effort to keep the client from leaving treatment, your agency will be fined $100 for non-compliance with 10E-16.004(27)(a), F.A.C., requirements. (Petitioner's exhibit no. 6) HRS interprets its rule to prohibit restraint when the perceived danger to the client is in leaving and getting back on drugs. SAFE contends that to let one client leave voluntarily without going through the withdrawal procedures would mean that all of the clients, adolescents with poor decision- making skills, would walk out. There is a program in Palm Beach County, Florida, purportedly similar to SAFE, called Growing Together, Inc. On January 22, 1994, HRS and Growing Together, Inc., entered into a stipulated Final Declaratory Judgement in case no. CL93-9599-AO, in the Circuit Court of the Fifteenth Judicial Circuit, in and for Palm Beach County, Florida, which provided, in pertinent part: In the absence of a Court Order restricting the rights of a parent or legal guardian to control decisions affecting the health and welfare of a minor, Growing Together, Inc., may act upon the request of a parent or legal guardian in accepting a minor client for substance abuse treatment regardless of the minor's objections. In the absence of a Court Order limiting the authority of a parent or legal guardian to control decisions affecting the health and welfare of a minor, Growing Together, Inc., may reasonably restrict minor clients from terminating their participation in treatment contrary to the express direction of a parent or legal guardian. So long as the minor's rights to challenge the reasonableness of restrictions imposed at the express direction of a parent or legal guardian are protected -- that is, so long as the minor is informed of his or her rights and is provided a practical means by which to exercise those rights -- Growing Together, Inc., may continue to act in loco parenti in declining to release a minor from treatment where such release is against the will of a parent or legal guardian and no court order has been issued to direct otherwise. The State of Florida , Department of Health and Rehabilitative Services is hereby prohibited from taking any action contrary to the legal principles enunciated herein and is expressly prohibited from enforcing any interpretation of F.S. Section 397.601 which interpretation is contrary to the findings of this Judgement. (Petitioner's exhibit no. 7) CONCLUSIONS OF LAW The Division of Administrative Hearings has jurisdiction in this matter pursuant to Sections 120.56 and 120.57, Florida Statutes. The two cases consolidated above present two separate issues which must be addressed in separate orders, as one issue (the validity of Rule 10E- 16.004(27), Florida Administrative Code) is determined by the Hearing Officer, and the other issue (whether SAFE violated the rule) is determined by the agency upon a recommended order by the Hearing Officer. Notwithstanding the parties' earnest desire to obtain a resolution of the issue of when a program like SAFE can use physical restraint to prevent withdrawal, the Hearing Officer has no authority to issue a "declaratory statement." That function, addressed in Section 120.565, Florida Statutes, is reserved to the agency. Rule 10E-16.004(6)(a), [Florida Administrative Code], provides that "[t]he department shall impose a penalty of no more than $100 per day against a licensed program that commits a [significant violation pertaining to the health and safety of the clients.] ..." [emphasis added] Rule 10E-16.004(27)(a), Florida Administrative Code, provides: (27) Aggression Control Techniques. Programs which use verbal, psychological and physical intervention methods for managing client behavior shall be required to implement the procedures established under HRS Regulation Number 205-1 regarding the use of Aggression Control Techniques (ACT), or other techniques, as approved by the department. (a) Justification and Documentation of Use. In the event that physical intervention is used to restrict a client's movement, clinical justification shall be documented in the client record, and a complete, detailed report of the incident shall be maintained as part of the program's administrative records and reported to the department's district administrator. Physical intervention techniques shall be employed by trained adult staff to prevent a client from injuring himself or others, or to prevent serious disruption of the therapeutic environment. HRS contends that SAFE violated Rule 10E-16.004(27)(a), Florida Administrative Code, when the program restrained its minor client, S. B., from attempting to bolt without going through the "chain of command" described in SAFE's voluntary withdrawal procedures. HRS has the burden of proving the alleged violation. Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977) HRS does not claim that the techniques used on S. B. were by other than trained adult staff or that the required reports were not made to the agency and properly maintained by the program. Rather, HRS claims that a program such as SAFE cannot detain a child against his or her will. The rule cited by HRS simply does not include that prohibition. It states in the affirmative two circumstances in which a program shall use appropriate physical intervention: to prevent injury to the client or others, or to prevent serious disruption of the therapeutic environment. SAVE contends that permitting a child to leave at will, without following established withdrawal procedures would cause a serious disruption of the therapeutic environment. SAFE presented some competent credible testimony by its director to support its contention. HRS presented no evidence on that subject. HRS, moreover, has failed to justify its policy determination and interpretation of the rule in this case. It argues, for example, that parents do have a right to admit their children to a secure facility and to obtain a court order or alternative involuntary assessment. SAFE is not classified as a secure facility. The procedures and statutes referenced in HRS' proposed recommended order, however, were not in effect at the time of the incident at issue. Chapter 397, Florida Statutes, was substantially revised in 1993 and the revisions became effective October 1, 1993, after the incident at issue. See, Chapter 93-39, Section 51, Laws of Florida. The arguments made by HRS were specifically rejected by the court in Department of Health and Rehabilitative Services v. Straight, Inc., 497 So.2d 692 (Fla. 1st DCA 1986), a case decided prior to the 1993 amendments and therefore more relevant to the instant case. The determination that HRS has failed to meet its burden of proof in this case does not resolve for the parties their more global issue of whether a non-secure program such as SAFE can detain a child involuntarily placed by his or her parents or guardian. That issue is not resolved in Straight, supra, decided under a different statute; or by HRS' rule Chapter 10E-16.004, Florida Administrative Code, in its current form. Nor, contrary to SAFE's assertions, is the issue resolved in the stipulated judgement entered in the Palm Beach case referenced in paragraph 14, above, affecting a program which is not described in any competent evidence in this record. The conclusion in this case is properly limited to the facts and circumstances presented, and to consideration of a rule and statute in existence at the time of the incident at issue. The conclusion is merely that HRS failed to meet its burden of proving that by detaining S. B. on August 27, 1993, SAFE violated Rule 10E-16.004(27)(a), Florida Administrative Code.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Health and Rehabilitative Services enter its final order dismissing the January 12, 1994 amended complaint. DONE and ENTERED this 2nd day of April, 1996, in Tallahassee, Florida. MARY CLARK, 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 2nd day of April, 1996. COPIES FURNISHED: Paul D. Newnum, Esquire TURNBULL, ABNER, DANIELS and ROOKS 147 West Lyman Avenue, Suite 100 Winter Park, Florida 32790-0100 James A. Sawyer, Esquire Department of Health and Rehabilitative Services 400 West Robinson Street, Suite S-827 Orlando, Florida 32801 Richard Doran General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-1600 Sandy Coulter, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-1600
Findings Of Fact Ellen K. Clark is a registered nurse holding license number 0927962 issued by the Florida State Board of Nursing. Mrs. Clark was employed at Florida Hospital North, Orlando, Florida, in August and in September of 1977, in the Intensive Care Unit (ICU). During her employment, she had access to Meperedine (Demerol) used to medicate patients in the ICU. On September 28, 1977, Joann Johnson, Head Nurse of the ICU, discovered a shortage in the quantity of Demerol during a routine drug audit. She asked Clark to assist her in a recount, and at that time, Clark admitted to her that she was powerless to drugs and had taken and used Demerol from the ICU. Clark also admitted having been recently hospitalized for the treatment of Demerol abuse at Palm Beach Institute. Clark made similar admissions to the Board's investigative nurse. The chief pharmacist for Florida Hospital North, Arthur Lu, identified narcotic control forms for the drug Demerol which were received into evidence as Exhibit 1. Lu also stated that Demerol is the trade name for the drug Meperedine. Kathy Wahl, Assistant Director of Medical Records, identified the medical records for Jerome Kalish, a patient at Florida Hospital North. These records were received into evidence as Exhibits 2, 3 and 4. These records show that Clark withdrew many more doses of 50mg. and 75mg. Demerol injectable than were administered to Kalish. No wastage of these drugs was recorded as required. Dr. Kenneth Crofoot, a clinical psychologist who had treated Clark from October until December, 1977, testified concerning his treatment of Clark. Dr. Crofoot obtained his doctorate in guidance counseling from George Washington University and did a two year residency in the specialty in the Federal Mental Hospital in Washington, D.C. He worked in this field in a hospital environment until his retirement to Florida. Since his retirement, he has done volunteer counseling with the Seminole County mental health authorities and has served as a consultant to the state courts in Seminole County. He has been qualified and has testified as an expert witness in both the federal and state courts. Mrs. Clark was referred to Dr. Crofoot by the pastor of a Seventh Day Adventist Church, of which denomination Dr. Crofoot is also an ordained minister. Dr. Crofoot has had experience with the treatment of drug addicts and alcoholics in his career as a clinical psychologist. Mrs. Clark admitted to Crofoot that she was taking Demerol, and Crofoot assumed that she was addicted to the drug. Mrs. Clark sought Dr. Crofoot's help and treatment for her drug problem. Mrs. Clark met one hour per week for three months in therapy sessions with Dr. Crofoot. Dr. Crofoot diagnosed Mrs. Clark's problem as a serious lack of self identity and a lack of value system sufficient to permit her to cope with the stress of personal crises. This condition was brought to a critical stage by Mrs. Clark's concern over her husband's health, a recent move to the Orlando area where she had no friends, and the financial problems which arose from the move and her husband's illness. Dr. Crofoot was of the opinion that Mrs. Clark had received a good start in the treatment of her problems which were the cause of her abuse of Demerol while at Palm Beach Institute. Building on her earlier treatment, Dr. Crofoot expressed his professional opinion that Mrs. Clark developed a new sense of self identity and a value system sufficient to now enable her to cope with her personal problems without relying on drugs. Mrs. Clark has been employed since October by a physician specializing in Neurology for four hours a day, five days a week. Mrs. Clark advised the doctor of her problem with drugs when she sought employment with him, and at that time, an agreement was reached that she would have no responsibility for the administration of the drug Demerol. Mrs. Clark admitted that during her employment she had abused Demerol twice, a fact which she reported immediately to the doctor. The first instance of abuse occurred in October, shortly after commencing work with the doctor, and again in December of 1977. She has continued her employment with the physician and has not had any further episode of drug abuse.
Recommendation Because of the admissions of the Respondent, the only real issue presented in this case is the penalty to be assessed. This is made very difficult by the extreme candor of Mrs. Clark. At the proceeding, Mrs. Clark admitted all of the allegations against her except admitting she was using 125mg. of Demerol I.V. every four hours. She was very assertive and refused to admit this allegation of the complaint, which was subsequently determined to be an error. Mrs. Clark admitted to Mrs. Johnson her abuse of the drug Demerol prior to even a repeat audit of the drugs on hand in the ICU or the records were reviewed to determine who was responsible for the shortages. Mrs. Clark advised her current employer that she had a drug problem when she was initially interviewed. She also admitted with absolute candor at the hearing that she had abused Demerol at his office but had reported this to the doctor immediately. Such honesty substantiates Dr. Crofoot's observation that Mrs. Clark has developed a new and stronger value system. Mrs. Clark offered no excuse for her conduct and admitted her problem. She also admitted when she "fell off the wagon." Her only defense in mitigation of the charges against her was that she was seeking help for her problem and was making progress. From her testimony concerning her abuse of drugs in October and December, a question clearly exists of whether Mrs. Clark has conquered her problem. However, she has made progress and appears to be a good candidate for rehabilitation. As an ICU nurse, Clark must be a competent, experienced nurse and it would be worth the attempt to salvage her nursing career. Her abuse of drugs after her release from treatment at Palm Beach Institute and again after the termination of therapy with Dr. Crofoot indicates that she receives support from her therapy, and should not be abruptly released from therapy while practicing. Mrs. Clark has the apparent support of her husband, her employer, and others in the community in assisting her with her problem. This is a strong base upon which to build a program of probation which would provide reasonable safe guards to the public while permitting Mrs. Clark to overcome her problem without lose of her nursing credentials which would undoubtedly be a personal set back. Based upon the foregoing findings of fact and conclusions of law, it is recommended that the Board revoke Mrs. Clark's license but that the enforcement of the revocation be suspended on the condition that Mrs. Clark reenter therapy and that the therapist make regular reports to the Board on Mrs. Clark's progress, that Clark be required to appear personally before the Board on a regular basis to report on her progress, that her employer be advised by Mrs. Clark of her drug problem and the conditions of the Board's probation, that the employer be required to advise the Board that Mrs. Clark has disclosed her problem and be required to report any abuse of drugs by Mrs. Clark or any narcotic discrepancies in which she may be involved, that Mrs. Clark be required on her own to cease employment when it appears to her that she is faced with a personal crisis with which she feels unable to cope until the crisis or stress is resolved, that it be clearly understood that a reoccurrence of the abuse of any drug or unprofessional conduct by Mrs. Clark will result in her immediate revocation through imposition of the suspended revocation, and that this probation shall remain in effect until the Board is satisfied that Mrs. Clark is fully rehabilitated DONE and ORDERED this 24th day of February, 1978, in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Julius Finegold, Esquire 1007 Blackstone Building 233 East Bay Street Jacksonville, Florida 32202 Mrs. Ellen K. Clark 5338 Dawn Mar Street Orlando, Florida 32810 John H. Mogan, Esquire 2900 N. E. 33rd Avenue Ft. Lauderdale, Florida 33308
