STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN MARK MCCLANAHAN, )

)

Petitioner, )

)

vs. ) CASE NO. 96-0269

) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its assigned Hearing Officer, Donald R. Alexander, on June 25 and August 2, 1996, in Tallahassee, Florida.

APPEARANCES

For Petitioner: John Mark McClanahan, pro se

2117 Queenswood Drive

Tallahassee, Florida 32303

For Respondent: Tommy E. Roberts, Jr., Esquire

Post Office Box 15884 Tallahassee, Florida 32317

STATEMENT OF THE ISSUE

The issue in this case is whether petitioner's application for certification as an independent support coordinator should be approved.

PRELIMINARY STATEMENT

This matter began on November 28, 1995, when respondent, Department of Health and Rehabilitative Services, advised petitioner, John Mark McClanahan, that his application for enrollment as an independent support coordinator had been denied on the ground the agency could not give assurances to the Federal Health Care Financing Administration that petitioner's enrollment would provide "the necessary safeguards to protect the health and welfare of the recipients of the services." By letter dated January 3, 1996, respondent further clarified the bases for denial and stated that the application had been denied because he had been terminated from his previous employment by virtue of "inadequate performance," an audit of his work revealed "numerous non-compliance of standards," and the agency had received "complaints from consumer and providers of other services." Thereafter, petitioner requested a formal hearing to contest the agency's proposed decision. The matter was then forwarded by respondent to the Division of Administrative Hearings on January 10, 1996, with a request that a Hearing Officer be assigned to conduct a hearing.

By notice of hearing dated February 7, 1996, a final hearing was scheduled on April 10, 1996, in Tallahassee, Florida. At respondent's request, the final hearing was continued to June 25, 1996, at the same location. On June 24, 1996, the case was transferred from Hearing Officer Charles C. Adams to the undersigned. A continued hearing was held on August 2, 1996.

At final hearing, petitioner testified on his own behalf. Also, he offered petitioner's exhibits 1-3. All exhibits were received in evidence. Respondent presented the testimony of Angel L. Trejo, a management review specialist; Margo

1. Keeler, president of Independent Choice Management, Inc.; Kimberly M. Levenson, a support coordinator; M. C., one of respondent's former clients; and Mary R. Brown, a human services analyst and coordinator. Also, it offered respondent's exhibits 1-29. All exhibits were received in evidence.

   
   

   The transcript of hearing (three volumes) was filed on October 1, 1996.

   Proposed findings of fact and conclusions of law were due no later than October 15, 1996. None were filed by either party.

   
   

   FINDINGS OF FACT

   
   

   Based upon all of the evidence, the following findings of fact are determined:

   
   

   1. In this proceeding, petitioner, John Mark McClanahan, challenges a decision by respondent, Department of Health and Rehabilitative Services (HRS), which denies his request for certification as an independent support coordinator. If his request is approved, petitioner would be authorized to work with eligible developmentally disabled persons who are at risk of institutionalization and assist those persons in obtaining services that are needed to avoid institutionalization. These services are a part of the Home and Community-Based Waiver Services of the Medicaid program. The program is more commonly known as the Medicaid-Waiver program since HRS was required to obtain a waiver from the federal government in order to provide these services.

      
      

   2. Prior to 1995, organizations could be certified by HRS as independent support coordinators and employ qualified individuals under their certification without those employees having to be certified. Pursuant to recent changes in the federal law, however, which HRS must observe, individuals must now obtain certifications and can no longer work under the umbrella of their employer's certification. A certification is valid for a one year period, and it must be renewed by the holder each year thereafter.

      
      

   3. In order to receive federal Medicaid funds for services provided by support coordinators, HRS was required to submit a plan to the federal Health Care Financing Administration (HCFA) for its approval. Under the plan, HRS is required to ensure that all providers of support coordinator services meet certain federal "assurances." One such assurance requires that the health and welfare of the recipients of those services will be protected. A failure to adhere to such assurances may jeopardize HRS's right to federal funding. It can be reasonably inferred from the evidence that petitioner is aware of these requirements.

      
      

   4. Beginning in March 1994, petitioner was employed as an independent support coordinator by Independent Choice Management, Inc. (ICM), a Fort Walton Beach, Florida firm that has held a certification since 1993. Its president is Margo Keeler. In that position, petitioner worked out of his Tallahassee home

      and provided support coordinator services to approximately thirty-four developmentally disabled clients.

      
      

   5. As a result of an HRS audit of petitioner's records, and what Keeler perceived to be noted deficiencies in petitioner's performance, petitioner was terminated from his position with ICM effective August 24, 1995. In September 1995, he initiated this proceeding by seeking a certification in his own name.

      
      

   6. After reviewing petitioner's application, HRS determined that the application should be denied. Its reasons are found in a letter to petitioner dated January 3, 1996, which reads as follows:

      
      

      In response to your letter which we received on December 22, 1995, and in accordance with our letter to you dated November 28, 1995, the decision not to

      certify you were (sic) based on the following:

      1. Your inadequate performance as a support coordinator which necessitated your termination by your previous employer;

      2. Monitoring done by this department which reflected numerous non-compliance of standards;

      3. Complaints from consumer and providers of other services.

         The factors noted above would also prevent us from approving certification in other areas of the Developmental Services Home and Community Based Waiver.

         
         

   7. When a new support coordinator or entity begins working with HRS clients, HRS normally "monitors" that person or entity within the first ninety days. Such a review was made of ICM within the first three months after it was certified. In addition, a monitoring or recertification process of all certified coordinators (and its individual employees) is conducted by HRS each year. This process involves a review of client files, whose main ingredient is a support plan, which details the services to be provided the client. An integral part of the support plan is the cost plan, which contains a budget allocated to each client for the purpose of needed services.

      
      

   8. HRS undertook an annual recertification audit of ICM's files in early May 1995. As a part of that audit, it also reviewed a random sampling of petitioner's client files. Of the four client files initially examined from petitioner's case load, all had incomplete support plans, that is, they were not completed by the due date. By law, such plans must be completed within 365 days from the date the last plan was completed. Since this was a "major" issue as far as HRS was concerned, it proceeded to review all of petitioner's files.

      
      

   9. During the more comprehensive audit, HRS discovered that around twenty- five out of thirty-four support plans maintained by petitioner had not been completed on a timely basis. Although petitioner took the position that a support plan for a particular month could be completed by the last day of the month and still be considered timely, this view was contrary to ICM instructions and HRS policy. Also, the audit revealed that out of twelve cost plans missing from ICM's central records, ten were from petitioner's files. Thus, it is fair to say that the majority of problems related to petitioner's client files.

   10. A follow-up audit of petitioner's files was conducted by HRS on August 10, 1995, to resolve the issues raised in the earlier audit. Although HRS found the support plans to be current, several cost plans had not been submitted to HRS, and several files had no case notes since April 1995. Case notes should be completed by the end of each month.

       
       

   11. Besides the above noted deficiencies, HRS also received a complaint from a parent of one of petitioner's clients. The substance of the complaint is hearsay in nature, and thus no findings have been made with respect to its substance. The receipt of the complaint, however, was one more factor in HRS's decision not to certify petitioner.

       
       

   12. At hearing, petitioner contended that he had difficulty in obtaining information from Keeler regarding how to maintain and complete certain forms. The evidence shows, however, that before beginning his duties with ICM, petitioner was given training in all aspects of recordkeeping. More specifically, he received at least four training sessions in April 1994. He also received at least one refresher course later that year.

       
       

   13. Besides his training courses, petitioner received a number of memoranda from Keeler throughout the year regarding recordkeeping requirements. For example, on November 30, 1994, Keeler advised petitioner by memorandum of the "importance of completing ISP's (individual support plans) on or before their due date," that "overdue ISP's will no longer be tolerated," and that they must be "completed in a timely manner." Memoranda of similar import were sent by Keeler to petitioner on September 27 and December 4, 1994, and July 10, 1995. Finally, according to Keeler, the two regularly discussed the subject of recordkeeping by telephone. Petitioner disputes the number of times he allegedly spoke with Keeler by telephone, but it is fair to infer that he had sufficient training and backup support to properly maintain his files, and that Keeler was available by telephone to answer any questions he might have.

       
       

   14. Petitioner further contended that HRS "pressured" Keeler into terminating his services with ICM. In this regard, Keeler was never told by HRS that she must terminate petitioner, but she acknowledges that HRS "alluded" to the fact that it would be "in her best interest" if petitioner was terminated. The real motivation in terminating petitioner, however, was because of the numerous deficiencies found in the audit, most of which were those of petitioner. Because of this, Keeler firmly believed that ICM's certification would be "in jeopardy" if petitioner remained as an employee.

       
       

   15. Petitioner further contends that certain HRS employees, and especially a management review specialist who conducted the audits and reviewed his application, were biased in some measure against him. However, the evidence does not support this contention. On this issue, the record shows that of some thirty certified support coordinators within HRS District II during the time period when petitioner was employed, at least four were decertified by HRS for deficiencies and a number of others declined to seek renewal of their certifications for various reasons.

       
       

   16. As to recordkeeping, petitioner conceded that paperwork was his "weak" point, but he contended that HRS should have monitored him more frequently, such as every two months, so that it could provide a continuing source of constructive advice, and give him more opportunity during the year to correct any noted deficiencies. While more audits might have been desirable, due to a lack of resources, and no statutory or rule mandate to perform audits more

       frequently than it does, HRS satisfied its audit responsibility by twice monitoring ICM in 1995.

       
       

   17. In summary, the greater weight of evidence supports a finding that, due to performance deficiencies, petitioner was terminated as a support coordinator by his previous employer, ICM, and an audit of his clients' files reflected "numerous (incidents of) non-compliance (with federally mandated) standards." Since a complete and accurate central record is essential to the health and welfare of the clients, a failure by petitioner to maintain the same adversely affects HRS's ability to ensure that the health and welfare of the recipients of program services will be protected. There is, however, insufficient competent evidence to support the charge that his conduct with clients endangered their health and welfare. Given these findings, the application should be denied.

       
       

       CONCLUSIONS OF LAW

       
       

   18. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Section 120.57(1), Florida Statutes.

       
       

   19. As the party seeking certification, petitioner must prove by the preponderance of the evidence that he is entitled to the requested relief. See,

       e. g., Fla. Dep't of Transp. v. J.W.C. Co., Inc., 396 So.2d 778, 788 (Fla. 1st DCA 1981). In this case, he must prove that he is qualified for certification as an independent support coordinator.

       
       

   20. The Medicaid-Waiver program is a federal program for developmentally disabled persons and is authorized by 42 C.F.R. s. 441.300 et seq. Under Section 393.066, Florida Statutes, HRS is required to provide developmental services to developmentally disabled persons. Subsection (6) thereof authorizes HRS to contract with private businesses, units and organizations for the provision of independent support services. HRS is also authorized by Section 393.501(1), Florida Statutes, to "adopt rules to carry out the provisions" of chapter 393, including the Medicaid-Waiver program. At this time, however, no formal rules have been promulgated. Even so, HRS has a policy of requiring that applications for certification as an independent support coordinator be granted only when all federal assurances can be met. That policy was amply supported by the record, and petitioner was aware of this requirement.

       
       

   21. By the greater weight of evidence, HRS has demonstrated that, based on petitioner's prior performance, if the subject application is approved, it cannot assure that the health and welfare of program recipients will be protected, as required by federal law. Put another way, petitioner has failed to carry his burden of demonstrating entitlement to certification. Therefore, the application should be denied. Compare Ogden v. Dep't of Health and Rehab. Services, Case No. 95-1284 (DHRS, February 12, 1996)(decertification justified where licensee failed to adhere to recordkeeping requirements).

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Health and Rehabilitative Services enter

a final order denying petitioner's application for certification as an

independent support coordinator.

DONE AND ENTERED this 18th day of October, 1996, in Tallahassee, Florida.

DONALD R. ALEXANDER

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 18th day of October, 1996.

COPIES FURNISHED:

Gregory D. Venz, Agency Clerk Department of Health and

Rehabilitative Services

1317 Winewood Boulevard, Room 204-X Tallahassee, Florida 32399-0700

John Mark McClanahan 2117 Queenswood Drive

Tallahassee, Florida 32303

Richard E. Doran, Esquire Department of Health and

Rehabilitative Services

1317 Winewood Boulevard, Room 204

Tallahassee, Florida 32399-0700

Tommy E. Roberts, Jr., Esquire Post Office Box 15884 Tallahassee, Florida 32317

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within fifteen days from the date of this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 96-000269

Orders for Case No: 96-000269