COMPASSIONATE CARE HEALTH ) SERVICES, INC., and ASSOCIATED ) HOME HEALTH INDUSTRIES )
vs. ) Case No. 97-2036
) STATE OF FLORIDA, DEPARTMENT OF ) EDUCATION, and STATE BOARD OF ) INDEPENDENT POSTSECONDARY ) VOCATIONAL, TECHNICAL, TRADE, ) AND BUSINESS SCHOOLS, )
Respondents. )
Pursuant to a Stipulation for Modified Declaratory Statement Procedure and Issues, Petitioners, Compassionate Care Health Services, Inc., and Associated Home Health Industries of Florida, Inc., and Respondents, State of Florida, Department of Education and State Board of Independent Postsecondary Vocational, Technical, Trade, and Business Schools, the Division of Administrative Hearings assigned Susan B. Kirkland, a duly designated Administrative Law Judge of the Division of Administrative Hearings to conduct a proceeding and prepare a proposed declaratory statement.
For Petitioner: J. Robert Griffin, Esquire
J. Robert Griffin & Associates, P.A. 2559 Shiloh Way
For Respondent: Charles S. Ruberg, Esquire
Florida Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
Section 246.203(1), Florida Statutes, by application of the following underlined language within that definition:
[S]chools offering only examination preparation courses for which they do not award a diploma as defined in subsection (6) do not fall under the authority granted in ss. 246.201-246.231; nor does a nonprofit class provided and operated entirely by an employer, a group of employers in related business or industry, or a labor union solely for its employees or prospective employees or members.
On March 18, 1997, Petitioners, Compassionate Care Health Services, Inc., and Associated Home Health Industries of Florida, Inc., and Respondents, State of Florida Department of Education and State Board of Independent Postsecondary Vocational, Technical, Trade, and Business Schools (the Board), entered into a Stipulation for Modified Declaratory Statement Procedure and Issues. The parties stipulated that the Board would enter into an agreement with the Division of Administrative Hearings to make an administrative law judge available to conduct a proceeding and prepare a proposed declaratory statement on the issues and facts set forth in the stipulation.
The parties agreed to submit memoranda in lieu of an evidentiary proceeding. On June 15, 1997, Respondents filed a motion for extension of time, requesting that the time for submitting initial memoranda be extended. By order dated July 3, 1997, the time for submitting initial memoranda was extended to July 31, 1997. Petitioners filed their initial memorandum on
June 16, 1997, and Respondents filed their initial memorandum on July 31, 1997. The parties' stipulation provided that not later than 45 days after the filing of the initial memoranda, the parties could file responsive memoranda of law. Respondents filed a responsive memorandum on September 30, 1997.
The parties stipulated that they desired a determination of the issues set forth in the Statement of the Issues to three sets of factual scenarios: Set A, Set B, and Set C. Each set of the factual scenarios has additional facts or presumptions which are common to that set. The facts set forth in paragraphs 2-8 below, are common to all the factual scenarios.
Compassionate Care Health Services, Inc., (Compassionate Care) is a Florida corporation, whose principal place of business is located at 1600 Sarno Road, Suite 214, Melbourne, Florida 32935.
Compassionate Care holds a license, issued pursuant to Chapter 400, Part IV, Florida Statutes, as a "home health agency," as defined in Section 400.462(4), Florida Statutes.
The home health services provided by Compassionate Care include, but are not limited to, "home health aide" services.
Compassionate Care offers a program of training which teaches the knowledge and skills needed for an individual to meet the qualifications and training requirements to be employed as a home health aide in accordance with the rules adopted by the
Agency for Health Care Administration (AHCA), pursuant to Section 400.497(2), Florida Statutes.
Compassionate Care selects individuals for enrollment in its training program from among those who apply.
Compassionate Care charges and receives a monetary fee from each individual enrolled in the training program.
Compassionate Care provides to each individual who completes the training program a transcript reflecting the individual's performance within the training program.
The parties stipulated that for the purposes of Set A of the factual scenarios that it is presumed that the training program meets all requirements to be a "nonprofit class" within the meaning of Section 246.203(1), Florida Statutes. Further, the parties stipulated that at or prior to the time of enrollment in the training program and payment of the fee, each trainee is hired by Compassionate Care with a designated status of employee- trainee.
Set A is divided into three factual scenarios: A-1, A- 2, and A-3.
Factual scenario A-1 consists of the common facts set forth in paragraphs 2-9, supra, and the facts set forth in paragraphs 12-14, below.
Prior to being hired as an employee-trainee, the applicant is determined by Compassionate Care to have passed the statutory background check.
Upon being hired as an employee-trainee, the employee trainee receives a salary and benefits which comply with at least the minimum requirements under applicable labor laws.
At the time an applicant is hired as an employee- trainee, there is established as an express term and condition of employment that if the employee-trainee successfully completes the training program, the employee-trainee will be reassigned to the employment status of home health aide and will have the same employment security and will receive assignments, salary, and benefits which are the same for all other home health aides employed by Compassionate Care, subject only to pay classifications and seniority rules that apply equally to all home health aides employed by Compassionate Care.
Factual scenario A-2 is the same as factual scenario
A-1, except the background check is not done until the employee- trainee has successfully completed the training program; and the terms and conditions of employment under which the employee- trainee will be reassigned to a home health aide position includes passing the statutory background check as well as successfully completing the training program.
Factual scenario A-3 is the same as factual scenario A-1 except that the employee-trainee status is nominal, in that the employee-trainee receives no salary or benefits until reassigned to a home health aide position.
The parties stipulated that for the purposes of Set B
it is presumed that the training program meets all requirements to be a "nonprofit class" within the meaning of Section 246.203(1), Florida Statutes. Further for the purposes of Set B, the parties stipulated that no trainee has any employment status with Compassionate Care prior to or during the training program.
Set B is divided into four factual scenarios: B-1, B-2, B-3, and B-4.
Factual scenario B-1 consists of the facts set forth in paragraphs 2-8 and 17, supra, and the facts set forth in paragraphs 20 and 21, below.
As a part of the written enrollment agreement or as a separate writing at or prior to the time of enrollment, Compassionate Care covenants that it will offer employment with Compassionate Care as a home health aide to each trainee who successfully completes the training program and passes the statutory background check.
Each trainee who successfully completes the training program and who passes the statutory background check is, in fact, offered employment with Compassionate Care as a home health aide with rights to assignments, salary, and benefits which are the same for all other home health aides employed by Compassionate Care, subject only to pay classifications and seniority rules that apply equally to all home health aides employed by Compassionate Care.
Factual scenario B-2 is the same as factual scenario
B-1, except Compassionate Care offers employment as a home health aide to some, but not all, trainees who successfully complete the training program and pass the statutory background check.
Compassionate Care asserts that its decision to not offer employment to all of the trainees who successfully complete the training program and pass the statutory background check is based on business circumstances which result in a need for fewer home health aides than had been anticipated or a determination that the trainees who are not offered employment are unsuitable because of personality, or temperament, or personal circumstances of the trainee other than specific instances of serious misconduct.
Factual scenario B-3 consists of the facts set forth in paragraphs 2-8 and 17, supra, and the facts set forth in paragraphs 24 and 25, below.
At or prior to the time of enrollment, each trainee is told in writing that "employment opportunities are available" to those who successfully complete the training program and pass the statutory background check and each trainee is given the opportunity to complete an employment application.
Each trainee who successfully completes the training program, passes the statutory background check, and has completed an employment application, in fact, is offered employment with Compassionate Care as a home health aide.
Factual scenario B-4 is the same as B-3, except that
Compassionate Care offers employment as a home health aide to some, but not all, of the trainees who successfully complete the training program, pass the statutory background check, and complete an employment application.
The parties stipulated that for the purposes of Set C, it is presumed that each trainee would be an "employee" or "prospective employee" within the meaning of Section 240.203(1), Florida Statutes. Further, the parties stipulated that the activities of the training program take place in Compassionate Care's principal place of business at 1600 Sarno Road, Suite 214, Melbourne, Florida.
Set C is divided into four factual scenarios: C-1, C-2, C-3 , and C-4.
Factual scenario C-1 consists of the facts set forth in paragraphs 2-8 and 27, supra, and the facts set forth in paragraphs 30 and 31, below.
The activities of the training program take place during the normal business day while Compassionate Care is otherwise engaging in the business of being a licensed home health agency.
The amount of the fee paid to Compassionate Care by trainees is calculated as the sum of the following factors: the actual cost to Compassionate Care of the books, workbooks, disposable medical supplies, and paper supplies provided to each trainee; each trainee's pro rata share of the salaries of
training program instructors and of medical equipment rented exclusively for purposes or the training program; each trainee's pro rata share, based on hourly salary rate and hours spent teaching.
Factual scenario C-2 is the same as C-1 except that additional cost factors are included in computing the amount of the fee paid by trainees. The additional factors include a portion of Compassionate Care's costs for rent and utilities.
Factual scenario C-3 is the same as C-2, except that the training activities take place after the close of normal business hours of Compassionate Care's place of business at 1600 Sarno Road, Suite 214, Melbourne, Florida.
Factual scenario C-4 is the same as C-2, except that the amount of the fee paid by the trainees represents a profit for Compassionate Care because it exceeds the sum of the cost factors addressed in factual scenarios C-1 and C-2.
CONCLUSIONS OF LAW
Pursuant to Sections 246.210-246.231, Florida Statutes, the State Board of Independent Postsecondary Vocational, Technical, Trade, and Business Schools (the Board) licenses and regulates nongovernmental career, technical, trade, and business schools in Florida. Section 246.201(1), Florida Statutes, sets forth the legislative intent for such regulation.
Sections 246.201-246.231 shall provide for the protection of the health, education, and welfare of the citizens of Florida and shall facilitate and promote the acquisition of a
minimum satisfactory career, technical, trade, and business education by all citizens of this state. There are presently many fine nonpublic schools existing in this state, but there are some nonpublic schools which do not generally offer those educational opportunities which the citizens of Florida deem essential. The latter type of school also fails to contribute to the ultimate health, education, and welfare of the citizens of Florida. It shall be in the interest of, and essential to, the public health and welfare that the state create the means whereby all independent degree career education, technical, trade, and business schools as defined in s. 246.203(1) shall satisfactorily meet minimum educational standards.
Section 246.203(1), Florida Statutes, defines the term "school" as follows:
ny nongovernmental, postsecondary, vocational, technical, trade, or business noncollegiate educational institution, organization program, home study course, or class maintained or conducted in residence or through correspondence by any person, partnership, association, organization, or corporation for the purpose of offering instruction of any kind leading to occupational objectives or of furnishing a diploma, as defined in subsection (6), in business, management, trade, technical, or other career education and professional schools not otherwise regulated. . . .
Schools offering only examination preparation
courses for which they do not award a diploma as defined in subsection (6) do not fall under the authority granted in ss. 246.201- 246.231; nor does a nonprofit class provided and operated entirely by an employer, a group of employers in related business or industry, or a labor union solely for its employees, or prospective employees or members.
Section 246.215(1), Florida Statutes, provides: No independent school required to be licensed
pursuant to ss. 246.201-246.231 shall be operated or established within the state until such school makes application and obtains a license or authorization from the board. . . .
Section 246.201(4), Florida Statutes, states:
Any school or business regulated by the state or approved, certified, or regulated by the Federal Aviation Administration is hereby expressly exempt from ss. 246.201-246.231.
Petitioners argue that home health agencies are exempt from the provisions of Sections 246.201-246.231, because they are businesses which are regulated by the state. Specifically, home health agencies are regulated pursuant to the provisions of Sections 400.461-400.515, Florida Statutes, known the "Home Health Services Act."
The Board argues that AHCA regulates the provision of health services to persons in their homes and does not regulate the provision of training of home health aides by home health agencies; therefore home health agencies are not regulated within the meaning of Section 246.01(4), Florida Statutes.
The polestar of statutory construction is the plain meaning of the statute; however that does not mean that the particular provision at issue is read in isolation. In Acosta v. Richter, 671 So. 2d 149, (Fla. 1996), the Florida Supreme Court discussed various tenants of statutory construction when it was called upon to interpret the provisions of Section 455.241(2), Florida Statutes. The court stated:
Because we are called upon to construe a statute, we invoke the polestar of statutory construction: plain meaning of the statute at issue. See Shelby Mut. Ins. Co. v. Smith, 556 So.2d 393, 395 (Fla.1990) ("The plain meaning of statutory language is the first consideration of statutory construction.") Such a rule requires the straightforward consideration of each relevant sentence of section 455.241(2) since a "statute should be interpreted to give effect to every clause in it, and to accord meaning and harmony to all of its parts." State ex rel. City of Casselberry v. Mager, 356 So. 2d 267, 269 n.
5 (Fla.1978). Likewise, "statutory phrases
are not to be read in isolation, but rather within the context of the entire section." Jackson v. State, 634 So. 2d 1103, 1105 (Fla. 4th DCA 1994); see also Smith v. United States, 508 U.S. 223, 233, 113 S.Ct. 2050,
2056, 124 L.Ed.2d 138 (1993) ("Just as a
single word cannot be read in isolation, nor can a single provision of a statute.")
Id. at 153.
The primary purpose for the enactment of Sections 246.201-246.231, Florida Statutes, is the protection of the health, education, and welfare of the citizens of Florida by providing for minimum educational standards for career education, technical, trade, and business schools. Section 246.01(3), Florida Statutes, lists specific protections of the statutory scheme:
Because of the common use of diplomas and degrees, the minimum legal requirements provided by ss. 246.01-246.231, for the establishment and operation of independent degree career education, technical, trade, and business schools shall protect the individual student from deceptive, fraudulent, or substandard education; protect such independent degree career education, technical, trade, and business schools; and
protect the citizens of Florida holding diplomas or degrees.
Section 246.01, Florida Statutes, exempts schools and businesses regulated by the state from the provisions of Sections 246.01-246.31, and the definition of "school" in Section 246.203(1), does not include those institutions and organizations which are "otherwise regulated."
Considering the legislative intent in the enactment of Sections 246.01-246.31, the logical interpretation of the terms "regulated by the state" as used in Section 246.01(4), means those businesses and schools for which the state regulates the provision of career, technical, trade, and business education pursuant to statutes other than Sections 246.01 - 246.31. This interpretation comports with the interpretation made by the Attorney General in Attorney General Opinion 75-95.
In AGO 75-95 issued April 14, 1975, the Attorney General opined on the following question posed by the then Commissioner of Education, Ralph Turlington:
Is s. 455.01, F. S., a reliable source for the purpose of determining those schools which are exempt from Ch.74-360, Laws of Florida [ss.246.201-246.231, F. S.(1974
Supp.)?
The Attorney General opined that Section 455.01, Florida Statutes, was a reliable reference source for determining schools and businesses which are regulated by the state and which are exempt from the operation of Sections 246.201-246.231, Florida Statutes, and stated:
Section 1(4) of Ch. 74-360, Laws of Florida [s.246.201(4), F. S. (1974 Supp.)],
provides in part that '[a]ny school or business regulated by the state is hereby expressly exempt from this act.' Section 455.01, F. S. refers to and defines over thirty regulatory boards created by the state which examine applicants and license and otherwise regulate practitioners of the various professions and occupations set forth therein. As such, s. 455.01 is a reliable source for determining those schools which are exempt from Ch. 74-360, since the professions and occupations referred to herein, as well as associated schools, are regulated by the state through the various administrative boards which are defined in 455.01.
As a specific example, I refer to Ch. 476,
F. S., and particularly s. 476.072, which establishes the Florida Barbers Sanitary Commission and directs that the commission shall evaluate and license schools or colleges of barbering. In addition, s. 475.451, F. S., requires schools which teach courses in real estate practice to obtain a permit from the Florida Real Estate Commission, with the exception of approved or accredited colleges and universities in this state. Finally, as a further example, s. 484.05, F. S., places the responsibility for approving continuing education programs for opticians in the State Board of Dispensing Opticians which adopted Rule 21P-5.01 F.A.C., on December 6, 1974, requiring an outline and summary of all courses of study and programs offered to be submitted to the board no less than 60 days prior to the date the course or program is offered.
In each of the examples given above, administrative regulatory boards established by the state and referred to in s. 455.01, F. S., do set standards and otherwise regulate associated occupational and professional schools. However, it should be pointed out that s. 455.01, supra, is by no means an exclusive source of reference or listing of methods by which the state regulates
occupational, professional, or vocational schools and thereby exempts them from Ch. 74- 360, Laws of Florida.
Section 400.497(2), Florida Statutes, provides that the Agency for Health Care Administration (AHCA) shall adopt and enforce rules relating to the "qualifications and minimum training requirements of all home health agency personnel. AHCA has promulgated Rule 59A-8.005(5), Florida Administrative Code, which Compassionate Care argues governs the training of home health aides by home health agencies. Rule 59A-8.005, Florida Administrative Code states:
(5) Home Health Aide
For each home health aide, a home health agency shall have on file documentation of successful completion of at least forty hours of training in the following subject areas:
communication skills;
observation, reporting and documentation of patient status and the care or services provided;
reading and recording temperature, pulse and respiration;
basic infection control procedures;
basic elements of body functions that must be reported to the registered nurse supervisor;
maintenance of a clean, safe, and healthy environment;
recognition of emergencies and knowledge of emergency procedures;
physical, emotional, and developmental characteristics of the populations served by the agency, including the need for respect for the patient, his privacy, and his property;
appropriate and safe techniques in personal hygiene and grooming, including bed bath, sponge, tub, or shower bath; shampoo, sink, tub, or bed; nail and skin care; oral hygiene;
safe transfer techniques and ambulation;
normal range of motion and positioning;
adequate nutrition and fluid intake;
the role of the aide in the home;
differences in families;
food and household management;
other health-related topics pertinent to home health services.
A certified nursing assistant, in order to qualify as a home health aide, must complete a supplemental course of 20 hours which includes the home health core curriculum listed in 59A-8.0095(5)(a)1. through 16., F.A.C.
Training must be performed by or under the general supervision of a registered nurse who possesses a minimum of two years nursing experience one of which must have been in the provision of home health care.
Home health aides must receive at least
12 hours of in-service training each calendar year. The training requirement may be fulfilled on a prorated basis during the home health aide's first year of employment.
The Board argues that Rule 59A-8.005(5), Florida Administrative Code, does not regulate the training of home health aides but merely sets forth the training requirements that a home health aide employed by a health care agency must meet. Compassionate Care argues that Rule 59A-8.005(5) does regulate the training of home health aides by home health agencies. The rule does not regulate the provision of training of home health aides. It regulates the home health agency in the hiring of home health aides by setting forth the minimum training that a home health aide must have in order to be employed by a home health agency.
There is no disharmony between the functions of AHCA and the Board. The Board requires the vocational training
programs of its licensee's to conform to the standards and training practices generally acceptable by the occupational fields for which students are being prepared. See Rule 6F- 2.002(4)(b), Florida Administrative Code. Therefore, schools which offer home health aid programs must meet the requirements of Rule 59A-8.014(1),(2),(3), Florida Administrative Code.
The minimum standards which the Legislature deems necessary for the regulation of private vocational schools includes standards relating to: school name; purpose; administrative organization; educational programs and curricula; finances; financial stability; faculty; library; student personnel services; physical plant and facilities; publications; and disclosure statements. The Board also is required by the Legislature to require its licensees to provide placement services and to assure that graduates have mastered basic skills. See Section 246.213, Florida Statutes.
Private vocational schools enroll students in training programs designed to give them the knowledge and skills to be employed; charge them a fee; and award a credential to successful completers. Compassionate Care does the same thing. Private vocational schools are subject to the Board's regulatory law for the protection of students, other schools, and the public. Compassionate Care contends that it is not.
The Legislature could not have intended an enterprise that looks, acts, and functions like a private vocational
training program to be exempt from the regulatory law which protects the public interest from the potential evils of private vocational training, unless similar protection is provided by another regulatory law. That is the only interpretation of the subject exemption that preserves the legislative purpose.
This interpretation of the exemption provision for schools also regulated by another state agency is supported by several other principles of statutory construction. This interpretation resolves the uncertainty in the way that is in best accord with the public interest. Department of Environmental Regulation v. Goldring, 477 So. 2d 532 (Fla. 1985); Rhoades v. Southwest Florida Regional Medical Center, 554 So. 2d 1188 (Fla. 2d DCA 1989).
The courts also interpret statutes based on the outcomes of the competing interpretations. This has been variously phrased as the avoidance of results which are: absurd (State v. Iacovone, 660 So. 2d 1371 [Fla. 1995]); unreasonable (Carawan v. State, 515 So. 2d 161 [Fla. 1987]); or, illogical (Suazo v. DelBusto, 587 So. 2d 480 [Fla. 3d DCA 1991]).
Compassionate Care's interpretation leads to the very results that are to be avoided. Two schools that offer the same program of training and compete for the same students could be subject to licensing and regulatory requirements that are vastly different. Prospective students would not know, without substantial research, how to evaluate their relative merits.
Prospective employers of the graduates of these schools would also need substantial research to evaluate the relative merits of the schools.
One solution would be to sort out the problem by seeing which school's students become good employees or good providers of services to customers, clients, and patients and which school's students cause injury and harm. This market place solution is, of course, exactly what the Legislature sought to avoid by enacting a regulatory law in the first place.
Another line of reasoning should resolve any remaining doubt that it is the correct interpretation under applicable law. A fundamental tenet of statutory construction is expressed in the maxim "noscitur a sociis." This means that general and specific words capable of analogous meaning when associated together take color from each other so that the general words are restricted to a sense analogous to the less general." State ex rel. Wedgworth Farms, Inc. v. Thompson, 101 So. 2d 381, 385 (Fla. 1958). Under this doctrine, a court examines the other words used within a string of concepts to derive the legislature's overall intent. Cepcot Corp. v. Dept. of Business and Professional Regulation, 658 So. 2d 1092 (Fla. 2d DCA 1995).
When applied to the exemption in question the doctrine of noscitur sociis adds clarity. The provision in question reads:
ny school or business, regulated by the state or approved, certified or regulated by
the Federal Aviation Administration is hereby expressly exempt from ss. 246.201-246.231. .
. .
The analysis addresses the breadth or narrowness of the concept "regulated by the state." This phrase is one answer to the question, "What schools or businesses are expressly exempt?" The other answer to that question is: "Approved, certified, or regulated by the Federal Aviation Administration."
The prior analysis revealed that "regulated" is a very general term because regulation can take any number of forms and can be intended to effectuate a wide range of purposes. Therefore, one must ask what form of regulation and for what purpose is the Legislature using the term "regulated" in the phrase, "regulated by the state." Under the doctrine noscitur a sociis, the conclusion is that the Legislature intended the more general phrase "regulated by the state" to mean regulated in a similar manner and for a similar purpose to the more specific way in which the FAA regulates the schools or businesses under its jurisdiction.
A brief examination of the nature and purpose of the FAA's regulation of its schools shows that its regulation is very similar to that of the Board and very dissimilar to that of AHCA. The Board's regulations are set forth in Rule chapters 6F-1, 6F- 2, 6F-3, and 6F-4, Florida Administrative Code. The FAA regulations are set forth in Title 14, of the Code of Federal Regulations (CFR). Schools and other certified agencies are addressed at 14 CFR, Parts 141, 143, 145, and 147. The
inescapable conclusion is that the Legislature intended that the exemption from regulation by the Board apply to schools and businesses whose regulation by another state agency is similar in nature and purpose to that of the Board, and the FAA. The Legislature did not intend to exempt from regulation those schools and businesses whose regulation by another state agency is of a different nature.
Rule 59-8.005(5), Florida Administrative Code, is not analogous to statutes and rules which do regulate the provision of career, technical, trade, and business education. For example, Chapter 494.00311, Florida Statutes, regulates mortgage brokerage and mortgage lending. Section 494.00311, Florida Statutes, provides for the regulation of mortgage brokerage schools by the Department of Banking and Finance. The statute and related rules cover several aspects of regulation including the following: physical facilities; adequate curriculum and training materials; class location and frequency; quality and substance of course outline, work loads, and study guide; available library and reference material; equipment; instructor qualifications; exit interviews; compliance with Florida Statutes and the Americans with Disabilities Act; prohibitions against guaranteeing or promising certain results such as licensure, placement or employment; prohibitions against false, inaccurate, misleading, or exaggerated advertising; and inspections by the regulatory authority.
Chapter 493, Florida Statutes, contains other examples of businesses or schools which are "regulated by the state" as that term is used in Section 246.201(4), Florida Statutes. Pursuant to Chapter 493, Florida Statutes, the Department of State regulates private investigative, private security, and repossession services. Section 493.6105(7), Florida Statutes, provides for the licensure of firearms instructors who provide training for applicants for Class "G" and "K" licenses. Section 493.6406, Florida Statutes, regulates repossession service schools and training facilities.
Another area in which businesses and schools are regulated by the state is asbestos abatement, which is regulated by the Department of Business and Professional Regulation pursuant to Chapter 469, Florida Statutes. Section 469.014, regulates the provision of asbestos training courses and provides:
The department shall approve training courses and the providers of such courses as are required under this chapter. The department must also approve training courses and the providers of such courses who offer training for persons who are exempt from licensure as an asbestos contractor or asbestos consultant under s. 469.004(4).
It is concluded that home health agencies are not exempt from the provisions of Sections 246.201-246.231, Florida Statutes, pursuant to the exemption of schools or businesses regulated by the state as provided in Section 246.201(4), Florida Statutes.
Based on the stipulated facts contained in paragraphs 1-8 of the Findings of Fact of this Proposed Declaratory
Statement, Compassionate Care meets the definition of "school" in Section 246.203(1), Florida Statutes. Compassionate Care is a corporation which offers program training for home health aides and furnishes a transcript to each person who completes the program reflecting the person's performance within the training program. Having met the definition of a school, Compassionate Care is subject to the Board's licensure and regulation, unless Compassionate Care meets the exemption for "a nonprofit class provided and operated entirely by an employer solely for its employees or prospective employees" contained in Section 246.203(1), Florida Statutes.
To determine whether Compassionate Care meets the exemption, the individual fact scenarios must be considered. For the purposes of Set A, the parties stipulated that the training program offered by Compassionate Care met the requirements to be a nonprofit class within the meaning of Section 246.203(1), Florida Statutes, and that at or prior to the time of enrollment in the training program and payment of the training fee, each trainee is hired with a designated status of employee-trainee.
The term "employee" is defined by Webster's II New Riverside University Dictionary (1984) as "a person who works for another in exchange for financial compensation." Black's Law Dictionary defines "employee" as "[o]ne who works for an
employer; a person working for salary or wages."
It is clear that in factual scenario A-1, Compassionate Care is excluded from the definition of school. Compassionate Care is the employer and operates the training solely for its employees. The individuals taking the training course are hired as employee-trainees and are paid a salary.
In factual scenario A-2, Compassionate Care is excluded from the definition of school. The Board argues that because the background check is done after the trainee has successfully completed the training program that the employment is a sham.
The students are employees of Compassionate Care at the time they are taking the course. They are paid a salary and are therefore considered employees. They may not be hired as home health aides at the time they are taking the training but they are none the less employees. For the purposes of the exemption in Section 246.203, they are employees of Compassionate Care.
In factual scenario A-3, Compassionate Care is not excluded from the definition of school if the term "prospective employees" is not considered. The individuals may be designated as employee-trainees, but they are not employees of Compassionate Care because they are not paid wages during the training period. However, based on the stipulation of the parties, it would appear that the individuals would be considered prospective employees. The condition for employment is that the individual must successfully complete the training program. Thus, Compassionate
Care would be exempt as an employer providing training to a prospective employees in factual scenario A-3.
In factual scenario B, the parties stipulated that the training program meets all requirements to be a "nonprofit class" within the meaning of Section 246.203(1), Florida Statutes, and the trainees have no employment status with Compassionate Care prior to or during the training program.
In factual scenario B-1, Compassionate Care would be excluded from the definition of school because it is an employer who is providing training to prospective employees. Webster's II New Riverside University Dictionary defines "prospective" as "1. Apt to occur. 2. Apt to become or be." Compassionate Care has agreed that it will offer employment to those individuals who successfully pass the training course and the statutory background check. Those trainees taking the course are apt to become employees of Compassionate Care.
In factual scenario B-2, Compassionate Care would be excluded from the definition of school because it is an employer who is providing training to prospective employees. Compassionate Care has stated to the individuals prior to the beginning of the training program that the individuals will be hired if they successfully complete the course and pass the background check. The factual scenario presented does not state whether the students are told at the time they enroll for the course that they may not be hired if business circumstances
result in a need for fewer home health aides of if the trainees are determined to be unsuitable because of personality, temperament or personal circumstances. However, whether they are told or not, the trainees would still be prospective employees because Compassionate Care has covenanted to offer them employment, and they are apt to become employees of Compassionate Care, based on that covenant.
In factual scenario B-3, Compassionate would also be excluded from the definition of school. In the factual scenario, Compassionate Care does hire those trainees who complete the training program, pass the statutory background check, and complete an employment application; thus, the trainees are apt to become employees and would be considered prospective employees of Compassionate Care.
In factual scenario B-4, Compassionate Care would be included in the definition of school. Some but not all the trainees would not be offered employment; thus not all the trainees would apt to become employees of Compassionate Care. Not all the employees would be prospective employees.
For the purposes of Set C of the factual scenarios, the parties stipulated that the trainees would be an "employee" or "prospective employee" within the meaning of Section 240.203(1), Florida Statutes, and that the training would take place at Compassionate Care's principal place of business. The issue to be determined is whether the class is nonprofit.
In factual scenario C-1, the class would be considered nonprofit. The fees charged the trainees are direct costs of providing the training program and does not include a profit for Compassionate Care. Thus, Compassionate Care would not be included in the definition of school.
In factual scenario C-2, the fees charged the trainees also include a portion of Compassionate Care's costs for rent and utilities. If the space is used only for the training program, a pro rata share of the rent could be charged to the training program. This could be easily done by determining the amount of square footage of the space utilized solely for the training program and multiplying it by the amount of rent that Compassionate pays per square foot. If Compassionate Care can demonstrate that the portion of the utilities which it charges as part of the course fees is the cost of utilities actually used to run the training program, the cost of the utilities may be added to the fees charged. Therefore, the training program would be considered to be nonprofit if the costs charged for rent and utilities are solely for the training program.
In factual scenario C-3, the training is done after the close of normal business hours. The same analysis as for Scenario C-2 would apply. If the space for the training program is used for other purposes during the normal business hours, the rent should not be allocated to the training program. If the space is used only for the training program, it does not make any
difference whether the program is offered during the day or the evening. The training program in factual scenario C-3 would be considered to be nonprofit if the costs charged for rent and utilities are solely for the training program.
In factual scenario C-4, Compassionate Care makes a profit from the fees charged for the training program. Obviously, the class would not be a nonprofit class, and Compassionate Care would not be excluded from the definition of school.
DONE AND ENTERED this 6th day of November, 1997, in Tallahassee, Leon County, Florida.
SUSAN B. KIRKLAND
Filed with the Clerk of the Division of Administrative Hearings this 6th day of November, 1997.
Charles S. Ruberg Assistant General Counsel
Florida Department of Education The Capitol, Suite 1701 Tallahassee, Florida 32399-0400
J. Robert Griffin, Esquire
J. Robert Griffin & Associates, P.A. 2559 Shiloh Way
Frank T. Brogan Commissioner of Education Department of Education The Capitol
Michael H. Olenick General Counsel Department of Education The Capitol, Plaza 08
