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Therapist refuses AHCA demand for notes in ALF crackdown

Florida’s Agency for Health Care Administration has been trying to shut down Hillandale Assisted Living, a home for mentally disabled adults, for over a year -- ever since The Miami Herald reported its long record of abuse and neglect.

But the Pasco County assisted-living facility (ALF) has demanded a full evidentiary hearing . The resulting legal battle has a Tampa mental-health counselor pinned in the middle.

Joanna Theiss Mulder, who counsels residents of Hillandale and other ALFs,  has been ordered to testify and turn over her patient records under an AHCA subpoena. Mulder refuses.

In court papers filed on Wednesday, Mulder argued that it would actually violate the law for her to release any records without her patients’ consent.

The patients named on Muller’s subpoena “specifically object to AHCA’s effort to access their records as an invasion of their privacy,” said the papers filed in  Hillsborough Circuit Court.

The irony is that both AHCA's attorney and Mulder see themselves as protectors of the mentally-ill clients who live at Hillandale, judging from their legal arguments (neither would consent to an interview).

Sandra Pollock of Orlando, who chairs the ethics section of Florida’s Association of Mental Health Counselors, said, “The whole premise of the relationship (between a counselor and client) is confidentiality.” Given a description of Mulder's situation, Pollock said, “I believe she is doing what’s within her rights to do.”

On the other hand, AHCA remains under pressure to fix the problems exposed in the Herald’s award-winning 2011 series "Neglected to Death."  One outcome, a legislative commission studying ways to tighten regulation of ALFs, will meet in Fort Lauderdale later this month and in Orlando in August.

A member of the commission, mental-health consultant Martha Lenderman, said of the Mulder dilemma, “AHCA is trying to protect residents of health care facilities, and existing laws and regulations don’t always support carrying out that mission.”

A Herald story published June 8, 2011, focused on  ALFs that house adults who have mental illnesses. Hillandale figured prominently in that piece, which began:

For the residents of Hillandale, punishment was swift and painful: violent takedowns, powerful tranquilizers that made them stumble and drool, and staffers who would scream and tackle them when they misbehaved.

The worst was the closet — a cramped room at the end of a hallway where the residents who were deemed unruly were locked, sometimes for hours.

The Herald reported that AHCA allowed Hillandale to stay open even though its problems were documented by caseworkers and police for years, over and over.

AHCA swung into action after the series was published, moving to terminate the Medicaid billing rights of Mapleway Communities, operator of Hillandale and two other ALFs. Then AHCA filed the complaint to revoke Hillandale’s license, naming the owners, Gene and Amelia Cowles of Safety Harbor.

The complaint charges that they “failed to provide a safe and decent environment free from abuse (and) neglect” and that residents had been harmed by other residents and by staff.

The most serious example described in the complaint was the rape of a young woman who had been diagnosed with autism,  bipolar disorder and seizures by a 57-year-old staff member,  Orlando Baez. Baez faces trial on sexual-battery charges in September.

Hillandale’s owners appealed the AHCA complaint to the Division of Administrative Hearings. One of the expert witnesses on their list was Mulder,  an advanced registered nurse practitioner with a PhD and a mental-health counselor’s license whose practice is called Consult Care Inc.

On April 19, state records show, Mulder received a subpoena to appear at a deposition by an attorney for AHCA on May 25. She was ordered to produce  notes from her therapy sessions with Hillandale residents.

A week before the deposition was scheduled,  Mulder’s attorney Kirk Davis of Akerman Senterfitt filed a motion for a protective order on the records. On May 23, the lawyers for AHCA, Mulder and Hillandale all dialed in for a telephone conference with Administrative Law Judge Lynne Quimby-Pennock.

AHCA argued that as a “health oversight agency” it had a statutory right to the records, and the law judge agreed. Later the same day, Mulder’s attorney notified all the parties that she would not  appear for the deposition.

She withdrew from the case as an expert witness, saying she had to in order to protect patient confidentiality. Hillandale’s attorney, Augustine (Gus) Weekley Jr., said he would not subpoena her or try to force her to testify.

But the attorney for AHCA, James H. Harris, filed a motion in Hillsborough Circuit Court on June 6, asking a judge  to compel Mulder to turn over records. This week, Akerman Senterfitt attorney Julie Gallagher filed Mulder’s response, arguing for protection on several grounds.

While AHCA is a health oversight agency, Gallagher wrote, its oversight involves hospitals, nursing homes and other health-care facilities. It has no authority over Mulder, the response says, because the Department of Health licenses health care professionals.

Anyway, Gallagher wrote, AHCA has no reason for looking at Mulder’s patient records. “Dr. Mulder is not a party to the case, nor is she a witness…The care and treatment she rendered any patient is not an issue in AHCA’s case (against Hillandale) and accordingly, the records are not relevant…”

But the main argument was that the records are confidential, protected under state law. Even if Mulder wanted to, the court filing says, she could not turn over the records without the patients’ consent.

Nowhere in the court file did AHCA explain what it’s looking for in Mulder’s records.  A call to AHCA attorney Harris was referred to the agency’s public information office; a spokeswoman there said AHCA can’t comment on matters in litigation.

--Health News Florida is an independent online publication dedicated to journalism in the public interest. Editor Carol Gentry can be reached at 727-410-3266 or by e-mail.