Findings Of Fact Petitioner is the governmental agency responsible for issuing licenses to practice veterinary medicine. Petitioner is also responsible for regulating the practice of veterinary medicine. Respondent is licensed as a veterinarian pursuant to license number VM 0002578. Respondent practices veterinarian medicine in Orlando, Florida. Kari On May 5, 1993, Respondent performed an ovariohysterectomy on a feline ("Kari"). An ovariohysterectomy is the surgical removal of the uterus and both ovaries, i.e., a "spay." Respondent failed to remove the left ovary from "Kari." During the surgery, Respondent noted that the ovary was not on the gauze where Respondent had placed the right ovary and other incidental material that Respondent removed surgically. 3/ Respondent searched inside and outside the surgical area for about an hour but could not locate the ovary. Respondent noted in the medical record that an ovarian remnant may have been left in the cat. Respondent advised the owner that if the cat went into heat she should bring the cat back for exploratory surgery to attempt to find and remove the remnant. On July 12, 1993, 4/ the owner observed "Kari" in heat and returned the cat to Respondent. Respondent performed exploratory surgery in an attempt to find an ovarian remnant. Respondent spent approximately one hour searching for microscopic tissue that could be the ovarian remnant. He cleaned the ovarian ligaments in the area of the left and right ovaries, searched the peritoneal area, and searched the adjacent organs. Respondent removed some material but did not locate and remove an ovarian remnant. Respondent advised the owner that he did not find a remnant but that he thought he had removed all of the ovary. Respondent instructed the owner to advise him if the cat came back into heat. Respondent did not charge the owner for the second surgery. In August, 1993, the owner advised Respondent that the cat was in heat. The owner was unwilling to have Respondent perform surgery again. Respondent advised the owner to see a surgical specialist at Respondent's expense. On November 18, 1993, the owner took "Kari" to the Kissimmee Animal Hospital. Medical tests established the cat's estrogen level to be 43.4 pg/ml. The normal estrogen level for a spayed cat is below 25 pg/ml. The treating physician at Kissimmee Animal Hospital referred the owner to a specialist for a third surgery. The owner did not want to subject the cat to a third surgery or incur additional veterinary expenses. On February 16, 1994, "Kari" died. The owner had a necropsy performed. The left ovary was still present in the cat. The pathologist who performed the necropsy retrieved the left ovary from the cat. He initially identified the ovary by visual examination and subsequently confirmed his initial identification on histopathology. The histopathology examination revealed that the ovary and oviduct fimbria were normal. The ovary was the original ovary in its original anatomic position. The ovary was attached to the ligaments that attach the ovary to the dorsal abdominal wall and posterior part. The pathologist found no suture on the ligament that attaches the left ovary to the posterior wall of the abdomen. Respondent's treatment of "Kari," including Respondent's failure to remove the left ovary, did not cause the cat to die. The cat died from a massive infection in the abdominal cavity. The cause of infection could not be determined. Based upon the type and severity of the infection, it could not have begun more than two weeks before the cat's death on February 16, 1994. Respondent last treated "Kari" on July 12, 1993. Neither Respondent nor the treating physicians at Kissimmee Animal Hospital detected any infection in the cat. Dudley On September 7, 1994, Robert and Susan Micalizio took their dog ("Dudley") to a veterinarian who diagnosed the dog as having kidney stones. On September 8, 1994, the owners brought Dudley to Respondent for a separate opinion. Respondent confirmed the original diagnosis. Respondent performed a urinary catheterization. The catheterization failed to unblock the dog's urinary tract. On September 9, 1994, Respondent performed a cystotomy and urethrostomy on "Dudley." Respondent made three separate incisions in the dog's bladder to determine if kidney stones were present. Respondent did not take x-rays before performing surgery on the dog. Respondent's failure to take radiographs prior to surgery in order to properly diagnose the problem departed from the standard of care in the community. Respondent found no kidney stones in the dog's bladder or urethra. Respondent discharged the dog. The dog's urinary symptoms persisted after Respondent released the dog on September 9, 1994. The dog's condition worsened. On September 13, 1994, the owners took "Dudley" to an emergency clinic. X-rays disclosed the presence of kidney stones in the dog's urethra and bladder. The emergency clinic diagnosed the dog with kidney failure. On September 16, 1994, "Dudley" underwent a successful cystotomy and urethrostomy at another animal clinic. It was necessary to perform a cystotomy and urethrostomy to remove the kidney stones and successfully treat the dog. Respondent performed the appropriate procedures but failed to locate the kidney stones, extract them, and otherwise treat the dog appropriately. Respondent reimbursed the owners for the costs of his procedures. Respondent paid for the cost of the subsequent surgical procedures required to treat "Dudley." Penalty Respondent was incompetent and negligent in his care of "Kari." Respondent failed to remove all of the left ovary from "Kari" after two surgical attempts to do so. "Kari" went into heat several more times and endured a second surgery as a result of Respondent's incompetence and negligence. Respondent was incompetent and negligent in his care of "Dudley." Respondent failed to take x-rays prior to performing surgery. Although the surgery Respondent performed ultimately proved to be necessary to treat "Dudley," Respondent failed to detect kidney stones at the time Respondent performed surgery and failed to correct the condition causing "Dudley's" problems. As a result, the dog suffered longer and endured additional surgery. The incompetence and negligence committed by Respondent did not involve deceit, fraud, or misconduct. Respondent did not mislead the owners of either animal. Respondent's incompetence and negligence did not result in the death or serious injury of either animal. Respondent made a reasonable effort to locate the ovary he left in "Kari." Respondent either reimbursed or offered to reimburse the owners of each animal for expenses incurred by them as a result of Respondent's incompetence and negligence. Respondent has no history of prior disciplinary action against him. Respondent has performed over 20,000 spay procedures without incident. Veterinarians leave ovaries, or ovarian remnants, in approximately three percent of spayed animals. Respondent readily admits his lack of care in the treatment of "Dudley." 4 Subject Matter Index Petitioner maintains an index of its agency orders. Petitioner's index is not alphabetical, hierarchical, or numbered sequentially. Petitioner's index does not contain indentations below the subject headings or titles which are more specific than the subject heading or title. The index does not contain cross- referenced common and colloquial words as required by Florida Administrative Code Rule 1S-6.008. 5/ Petitioner's index complies with the requirements of Section 120.53(2)(a)3. In lieu of a hierarchical subject matter index, Petitioner maintains an electronic database that allows users, including Respondent, to research and retrieve the full text of agency orders through an ad hoc indexing system prescribed by statute. Petitioner's electronic database contains complete case files related to any final order issued by Petitioner from July 1, 1992, to the present. The files include administrative complaints, settlement agreements, and orders. Any person may access this information between 8:00 a.m. and 5:00 p.m. Monday through Friday, either in person, by mail, or by telephone. Respondent is able to determine those final orders that involve the statutory or rule violations for which Respondent is charged. Respondent's search of Petitioner's index revealed that Petitioner has never suspended or revoked a license for the same or similar charges as those against Respondent. Petitioner has not revoked the licenses of veterinarians for more serious offenses. Petitioner has imposed a reprimand, required direct supervised probation, or mandatory appearances before Petitioner in only two cases in which the veterinarian's treatment of the animal did not result in the death of the animal treated. Both of those cases involved charges more serious than those against Respondent. Petitioner has imposed the sanctions of suspension, direct supervision, and fines in excess of $500 only where a violation of the law has occurred and the veterinarian's treatment resulted in the death of the animal treated. Respondent's treatment did not result in the death of either animal treated by Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of violating Section 474.214(1)(r), imposing a fine of $499, requiring Respondent to attend 4.9 hours of continuing education courses, and placing Respondent on probation for one year without requiring mandatory appearances in front of Petitioner. The costs of compliance with the final order are the obligation of Respondent. RECOMMENDED this 6th day of August, 1996, in Tallahassee, Florida. DANIEL S. MANRY, 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 6th day of August, 1996.
The Issue Whether disciplinary action should be taken against Respondent's license to practice as a physician.
Findings Of Fact The Agency is that state agency charged with regulating the practice of medicine pursuant to Section 20.42, Florida Statutes; Chapter 455, Florida Statutes; and Chapter 458, Florida Statutes. Respondent is a physician licensed to practice medicine in the State of Florida. Respondent holds license number ME 0055126. The State of Michigan Department of Commerce Board of Medicine is the licensing authority for the State of Michigan. On or about April 18, 1994, the State of Michigan Board of Medicine issued a letter of reprimand to Respondent, and ordered that Respondent pay a fine in the amount of $1,500.00 within ninety days of the Order for prescribing anabolic steroids for the purpose of improving body-building or weightlifting. Respondent is guilty of having action taken against his license to practice medicine by the licensing authority of the State of Michigan. The State of Michigan notified the agency of its action against the Respondent. A search of the agency's records revealed he had not notified the agency of the action taken by Michigan against him. On or about September 5, 1995, an attempt was made to notify Respondent about the information the agency had received. This letter was subsequently returned unclaimed with a forwarding address in Dallas, Texas. On or about November 9, 1995, a second attempt was made to notify Respondent of the complaint. The letter was sent to Post Office Box 12131, Dallas, Texas 75225, which is the Respondent's current address.1 The Respondent returned the election of rights form and a letter requesting a formal hearing. Respondent failed to notify the Florida Board of Medicine within thirty days of the action taken against his medical license in Michigan. The Respondent failed to notify the Board of his change of address. The Respondent was preciously disciplined by the Board of Medicine by Final Order number AHCA96-00464. The Respondent's license was suspended until he appeared and demonstrated that he could practice with skill and safety.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: That Respondent the Agency enter its Final Order finding the violation of Section 458.331(1)(b), Section 458.331(x) and 458.331(1)(kk) and, Florida Statutes, and revoking the Respondent's license to practice medicine in Florida. DONE and ENTERED this 28th day of February, 1997, in Tallahassee, Florida. STEPHEN F. DEAN 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 28th day of February, 1997.
The Issue The issue is whether respondent should be fined $3,350 for allegedly violating various agency rules.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Respondent, Barbara Knight Manors, Inc., d/b/a Four Palms (Four Palms or respondent), operates a licensed adult congregate living facility (ACLF) at 302 11th Avenue Northeast, St. Petersburg, Florida. The facility is subject to the regulatory jurisdiction of petitioner, Department of Health and Rehabilitative Services (HRS). As such, Four Palms is required to adhere to various HRS rules codified in Chapter 10A-5, Florida Administrative Code (1987). On December 3, 1987, an HRS program analyst, Diane Cruz, conducted a change of ownership survey of respondent's facility. The survey was prompted by the fact that the facility had just been purchased by its present owner, Barbara Knight. During the course of the survey, Cruz noted the following deficiencies which constituted a violation of applicable portions of Chapter 10A-5, Florida Administrative Code (1987): the patient daily medication records were incomplete in that some medications administered to patients had not been documented by the staff (10A-5.024(1)(a)3., FAC); (2) two employees did not have medical certificates reflecting they were free from communicable diseases (10A-5.019(5)(g), FAC); there were no standardized recipes (10A- 5.20(1)(g), FAC) the facility did not have a one week supply of non-perishable food (fruit and vegetables)(10A-5.20(1)(k), FAC) two showers did not have grab bars (10A- 5.023(9), FAC); and there were no screens on the windows (10A-5.023(13), FAC) The deficiencies were noted in a survey report received in evidence as petitioner's exhibit 4. A copy of the survey report was given to the facility's administrator on January 14, 1988. The report advised the licensee that monetary fines could be imposed if the violations were not timely corrected. At the completion of the December 3 survey, Cruz held an exit interview with Knight and explained the reason why each deficiency was cited and the steps required to correct the same. Also, Cruz advised Knight that all deficiencies had to be corrected no later than February 3, 1988 and that she would return for an unannounced follow-up visit to verify whether such deficiencies had been corrected. An "exit letter" confirming this process was furnished to Knight, and Knight signed and acknowledged receiving the letter. On March 2, 1988, Cruz returned to the facility for an unannounced follow-up visit. The purpose of the visit was to ascertain whether the deficiencies noted on December 3 had been corrected. During the visit, Cruz observed the following deficiencies that had not been corrected: The daily medicine records were still not accurately documented (initialed); one staff member had no medical certi- ficate attesting she was free from communicable diseases; there were no standardized recipes; the facility did not have a one week supply of non-perishable food (fruit and vegetables) on hand; two showers did not have grab bars; and two bedrooms did not have screens on the windows. As the result of an unidentified complaint, an HRS analyst, Sharon McCrary, visited respondent's facility on March 28, 1988. McCrary discovered that one resident's records had not been properly documented (initialed) to reflect that the staff had observed the patient receiving medication that morning. This violation was the same type that had been previously noted during the December 3, 1987 survey. On June 24, 1988, Cruz and a registered dietician, Mary Cook, returned to Four Palms to conduct a routine, annual survey. During the course of their survey, the two noted the following deficiencies that constituted violations of chapter 10A-5: there were three employees who had no medical certificate showing they were free from communicable diseases (10A-5.019(5)(g), FAC); three residents required supervision when given medications, but there was no licensed nurse on the staff to supervise this activity (10A-5.0182(3)(c), FAC) the facility had no activities calendar (10A-5.0182(7)(a), FAC) live roaches were observed in the kitchen area (10A-5.020(1)(n)1., FAC); the facility did not have a one week supply of powdered milk on hand (10A- 5.020(1)(k), FAC) there were no meal patterns or modified menus at the facility (10A-5.020(1)(e), FAC), and a county sanitation report citing various health deficiencies contained no evidence that such deficiencies had been corrected (10A-5.024(1)(d)2.a., FAC). An exit interview was conducted after the survey, and respondent was advised that it had until July 24, 1988 in which to correct the deficiencies. Also, a copy of the survey report was furnished to respondent. On September 13, 1988, an unannounced follow-up survey was conducted by Cruz and Cook to determine if the previously noted deficiencies had been corrected. They observed the following deficiencies that were not corrected: One staff member had no medical certificate reflecting he was free from communicable diseases; the facility's records indicated one resident required supervision when given medications but the facility did not employ a licensed nurse; although an activities calendar had been prepared, it was incomplete; there were no modified menus in the kitchen; live roaches were observed in the kitchen area; and the deficiencies noted on the county health inspection report had not been corrected. Respondent did not deny that many of the violations occurred. However, its owner and administrator argued that HRS was unfair in filing an administrative complaint more that a year after the first violations were noted. The facility maintained that HRS should have assisted it in remedying the violations since the owner had just purchased the business a few months earlier and was going through a "learning curve." The owner contended that many of the chapter 10A-5 requirements were impractical for a small ACLF and that HRS was simply "nit-picking." Knight also claimed she did not understand what she had to do in order to meet HRS rule requirements. Respondent offered a number of excuses as to why the violations occurred. For example, she contended that (a) the screens were off the windows because the windows were being painted, (b) her employees either would not bring their medical certificates to work or would not see a doctor to obtain one, (c) the quantity of non-perishable foods required to be kept on hand was a judgment call and was not susceptible to precise measurement, (d) roaches can never be totally eradicated in Florida, (e) one of the bathrooms without a grab bar was not being used by the residents, (f) the patient medication records were inaccurate or incomplete due to a misunderstanding by the physician who had prepared some of those records, and it is impossible to prepare a detailed, accurate activities calendar for ACLF residents. While these matters may serve to mitigate the severity of any penalty to be imposed, they do not excuse or justify the rule violations.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty as charged in the administrative complaint and that it pay an administrative fine of $1600, or $100 per violation DONE and ORDERED this 3rd day of October, 1989, in Tallahassee, Florida. DONALD R. ALEXANDER 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 3rd day of October, 1989.
Findings Of Fact Respondent was originally licensed to practice medicine in Florida on August 15, 1956. Respondent's license was placed on inactive status on December 13, 1979, and currently remains on inactive status. Respondent's last known address is 6201 Riverdale Road, Riverdale, Maryland 20801 (Petitioner's Exhibit No. 1). On May 6, 1983 Respondent, by Indictment No. 18312601, was indicted for six counts of Medicaid fraud, three counts of false pretenses and one count of theft in the Circuit Court for Baltimore City, Maryland (Petitioner's Exhibit No. 2). On March 12, 1984, after Respondent's bench trial, the Circuit Court for Baltimore City ordered a judgment of conviction as to the six counts of Medicaid fraud. Respondent was acquitted of the other four counts of the indictment (Petitioner's Exhibit No. 2, P. 39 of the memorandum opinion). Respondent's conviction resulted from the inclusion of nonallowable costs in applications for Medicaid funds submitted by Magnolia Gardens Nursing Home while Respondent was the administrator and a 50 percent owner of the nursing home. The trial court specifically found that Respondent knew that nonreimbursable costs for construction done to Respondent's personal residences and medical office building were included in applications for Medicaid payments (Petitioner's Exhibit No. 2, p. 39 of memorandum opinion). Use of Medicaid funds for improvements to a private physician's office is a violation of Maryland state law which clearly relates to the practice of medicine. As a result of Respondent's conviction for Medicaid fraud, he was sentenced to concurrent five-year terms of imprisonment on each of the six counts. All but 18 months of the sentence was suspended. Respondent was placed on 18 months of work release and 18 months of community service after work release at the rate of 20 hours per week. Respondent was also fined $60,000 and ordered to pay $50,000 restitution. Additionally, Respondent was placed on two years of unsupervised probation (See docket entry of April 23, 1984, Petitioner's Exhibit No. 2). On April 30, 1984 Respondent appealed his conviction to the Court of Special Appeals of Maryland (See docket entry of April 30, 1984, Petitioner's Exhibit No. 2). On November 6, 1985 the Maryland Court of Special Appeals rendered its opinion in William R. Greco v. State of Maryland, Case No. 171 (Petitioner's Exhibit No. 2). Respondent's conviction was affirmed in all aspects and Respondent's sentence was affirmed as to the order to make restitution which was vacated (See Mandate of the Court of Special Appeals of Maryland, dated December 6, 1985, Petitioner's Exhibit No. 2). On October 3, 1986, the Court of Appeals of Maryland affirmed the decision of the Court of Special Appeals. Greco v. State, 307 Md. 470, 515 A.2d 220 (1986). On December 4, 1984 Respondent was suspended from participation in the federal Medicare and Medicaid programs for a period of ten years (Petitioner's Exhibit No. 3).
Recommendation It is recommended that Respondent's license to practice medicine be revoked. DONE and ORDERED this 30 day of December, 1986 in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of December, 1986. COPIES FURNISHED: Stephanie A. Daniel, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 William W. Cahill, Jr., Esquire WEINBERG and GREEN 100 South Charles Street Baltimore, Maryland 21201 Dr. William R. Greco 6201 Riverdale Road Riverdale, Maryland 20737 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore Carpino, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Dorothy Faircloth, Executive Director Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue in this case is whether Respondent is guilty of violating various provisions governing adult congregate living facilities and, if so, what penalty should be imposed.
Findings Of Fact Respondent is currently licensed to operate an adult congregate living facility at 1822 Nebraska Avenue, Palm Harbor, Florida. On May 25, 1993, Petitioner's surveyor conducted an annual survey of the facility. Petitioner's surveyor noted several deficiencies on the survey report and gave Respondent 30 days within which to correct the deficiencies. Upon resurvey on September 13, 1993, the Petitioner's surveyor found nine deficiencies uncorrected. In addition, Petitioner's surveyor found uncorrected one deficiency that had been cited during a survey on August 4, 1993. On May 25, 1993, Respondent had three employees. Two of them had been employed at the facility for over 30 days. Their files contained no documentation showing that they were trained in infection control procedures. The third employee was new and had no personnel file. At the September 13, 1993 resurvey, the three former employees had been replaced by three new employees. Two of the new employees had received the required infection control training, although their statements omitted a copy of the license of the registered nurse who did the training. The file of the other new employee lacked any statement concerning infection control training. However, Petitioner failed to show that the deficiencies cited in the May 25 survey were uncorrected during the applicable timeframe. Any evidence concerning repeat violations was irrelevant for the reasons set forth in the Conclusions of Law. During both the May 25 and September 13, 1993 surveys, Respondent's sanitation inspection report was missing the second page, which would have listed violations and corrective actions regarding sanitation. On May 25, 1993, resident I. M. had been at the facility more than 30 days without a health assessment. On September 13, 1993, I. M. had been discharged, but four new residents had been at the facility more than 30 days without a health assessment. Petitioner failed to prove that the violation concerning I. M.'s health assessment was uncorrected during the applicable timeframe. Any evidence concerning repeat violations was irrelevant for the reasons set forth in the Conclusions of Law. On May 25, 1993, Respondent failed to document that a person duly certified in first aid was on duty at all times. A staff member identified as being alone at the facility on weekends had no personnel file. On September 13, 1993, two staff members identified on the staffing chart as being alone at the facility had no documentation of first aid training. On September 13, 1993, a third staff member who was left alone at the facility claimed to be a certified nursing assistant and therefore exempt from the first aid certification requirement. Respondent and the employee had no documentation to indicate that the employee was a certified nursing assistant. As noted above, the former employees were no longer employed at the facility on September 13. Petitioner thus failed to prove that the May 25 deficiencies concerning first aid certification were uncorrected during the applicable timeframe. Any evidence concerning repeat violations was irrelevant for the reasons set forth in the Conclusions of Law. On May 25, 1993, three employees at the facility had no statement that they were free of signs and symptoms of communicable disease. On September 13, 1993, one of the new employees had no such statement. The other two employees had statements, but they were signed by a registered nurse rather than an advanced registered nurse practitioner. Due to the turnover of employees, Petitioner failed to prove that the May 25 deficiencies concerning communicable- disease certification were uncorrected during the applicable timeframe. Any evidence concerning repeat violations was irrelevant for the reasons set forth in the Conclusions of Law. On May 25, 1993, Respondent kept a supply of nonprescribed, over-the- counter drugs, such as aspirin and milk of magnesia, that were not labelled for use by a particular resident. However, Respondent remedied the violation during the May 25 visit. On September 13, 1993, the surveyor found approximately six bottles of unlabelled, nonprescription over- the-counter medication. These medications had been brought by the family of a newly admitted resident. Respondent corrected the labelling deficiencies during the May 25 survey. Petitioner thus failed to prove that the May 25 labelling deficiencies were uncorrected during the applicable timeframe. Any evidence concerning repeat violations was irrelevant for the reasons set forth in the Conclusions of Law. On May 25, 1993 Petitioner's surveyor found no activities calendar and, based on resident interviews and her observations at the facility, no evidence of significant activities being provided. On September 13, 1993, Respondent had an activities calendar, but it did not specify the starting time or duration of resident activities. Petitioner proved that deficiencies concerning the activities calendar were uncorrected during the applicable timeframe. On August 4, 1993, Petitioner's surveyor found in a resident's room a full-bedside rail, which was not ordered by a physician. On May 25, 1993, Petitioner's surveyor found, evidently in a different resident's room, a half- bedside rail, which was not ordered by a physician. Respondent presented a physician's order for a hospital bed, but mechanical bedside rails were not addressed in the order. Due to the involvement of different residents, as well as different types of restraints, Petitioner failed to prove that the May 25 deficiency concerning the full-bedside rail was uncorrected during the applicable timeframe. Any evidence concerning repeat violations was irrelevant for the reasons set forth in the Conclusions of Law. On May 25, 1993, the facility maintained a clearly inadequate supply of nonperishable food. During the September 13, 1993 resurvey, Respondent had significantly more nonperishable food on hand, consisting of 567.5 ounces of fruits and vegetables. The May 25 survey report informs Respondent only that he does not have on hand a one-week supply of nonperishable food. The survey does not calculate the amount of such food needed based on some formula. At the hearing, Petitioner's witness testified that the nonperishable food supply on September 13 was inadequate, based on a requirement of 16 ounces of fruits and vegetables per day for seven days for five residents. Based on the formula, Respondent needed a total of 560 ounces of nonperishable food on hand on May 25, 1993, when he had nowhere near an adequate amount. Under the formula, Respondent would have needed, on September 13, 1993, 784 ounces of nonperishable food because two more residents had been added to the facility. However, Petitioner failed to prove that 560 ounces of nonperishable food does not represent one week's supply for the seven residents at the facility on September 13, 1993. On May 25, 1993, Petitioner's surveyor found that one resident was residing at the facility without a signed contract. On September 13, 1993, at least one resident was without a signed contract.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Agency for Health Care Administration enter a final order finding Respondent guilty of the violations set forth above and imposing a fine of $750. ENTERED on July 18, 1994, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on July 18, 1994. COPIES FURNISHED: Thomas W. Caufman, Esquire Agency for Health Care Administration 7827 N. Dale Mabry Hwy. #100 Tampa, Florida 33614 James V. Vinson, Owner White House #1 1822 Nebraska Avenue Palm Harbor, Florida 34683 Douglas M. Cook, Director Agency for Health Care Administration 2727 Mahan Drive Tallahassee, FL 32308 Harold D. Lewis, General Counsel Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, FL 32303 Sam Power, Agency Clerk Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, FL 32303
The Issue Whether Petitioner demonstrated that she was terminated from employment by Respondent, Florida Department of Health- Volusia (Respondent or FDOH-Volusia), as the result of an unlawful employment practice based on her identification with a protected class, or as retaliation for Petitioner’s opposition to a practice which is an unlawful employment practice.
Findings Of Fact Respondent is a provider of health services in Volusia County, Florida. Among the programs administered by FDOH-Volusia is the Women, Infants, and Children program (WIC). WIC is a federally-funded nutrition program, which provides healthy foods, nutrition education and counseling, breastfeeding support, and referrals for health care and community services. At all times relevant to this proceeding, FDOH-Volusia operated WIC health clinics in Daytona Beach, New Smyrna Beach, Orange City, and Pierson. Petitioner began working for FDOH-Volusia in June 2010, as a nutrition program director. In her capacity as nutrition program director, Petitioner was responsible for certain management activities of WIC. The State of Florida maintains close supervision of WIC. FDOH-Volusia is required to provide an annual Nutrition Plan (the Plan) to the State. The Plan is a report of WIC operations, sites, hours of operation, various objectives, local agency plans for increasing participation, local agency disaster plan, and staffing. As nutrition program director, Petitioner is responsible for preparing the Plan, and submitting it for revisions and/or final approval by FDOH-Volusia’s administrator. Ms. Boswell became the administrator of FDOH-Volusia on or about April 1, 2016. Dr. Husband, who is African-American, became Petitioner’s direct supervisor beginning in July 2016. As Petitioner’s direct supervisor, Dr. Husband provided oversight of WIC. In 2016, FDOH-Volusia consolidated its Deland and Deltona WIC offices into the office in Orange City. Petitioner was very involved in the move and was, during the period of the move, reassigned from her primary duties in Daytona Beach to duties in Orange City. By all accounts, the move went well. On September 23, 2016, Ms. Boswell requested that Petitioner meet with her and Dr. Husband to discuss the draft Plan provided by Petitioner on September 21, 2016, and for Ms. Boswell and Dr. Husband to provide comments, suggestions, and revisions to the Plan, which was due for submission to the State of Florida on September 30, 2016. The purpose of the meeting was to discuss the steps necessary to get the Plan in final form for submission. At the onset of the September 23, 2016, meeting, Ms. Boswell complimented Petitioner and her staff for getting DOH-Volusia’s new Orange City location “up and going.” Petitioner responded that “it’s good to hear something positive after so much negative.” The comment was directed at Dr. Husband, who Petitioner thought had been negative towards various aspects of her job performance. Petitioner’s comment led to tensions between Petitioner and Dr. Husband. Both said, at one time or another during the meeting, words to the effect of “don’t speak to me like that.” Ms. Boswell became a little uncomfortable with the interaction between the two. During the September 23, 2016, meeting, a number of deficiencies in the draft Plan were identified, including grammatical and syntax errors, discussion that did not align with the corresponding graphs, and a lack of data to support the Plan conclusions. Dr. Husband gave guidance and feedback on the Plan. Ms. Boswell indicated that, but for Petitioner’s comment regarding Dr. Husband’s negativity, the meeting was otherwise professional. At the hearing, Petitioner explained that Dr. Husband made other negative comments to her at various times, stating that at a meeting with the director of nursing regarding WIC work schedules, Dr. Husband said “we’re not going to nitpick”; and that on another occasion during a discussion on the difficulty of recruiting and retaining staff at base salary, Dr. Husband said to Petitioner “that’s the way you designed it.” According to Petitioner, Dr. Husband made similar comments to other of her direct reports. Dr. Husband testified at the hearing that she thought -- before and after the September 23, 2016, meeting -- that Petitioner was insubordinate, disrespectful to employees and supervisors, and rude. Petitioner would take meeting notes in red ink when she perceived instances of “negativity” and “unacceptable behavior” from her direct supervisor, which she described as her “red flag system.” Petitioner argued that since she “spoke up and spoke out” during the September 23, 2016, meeting, she has been the subject of retaliation by Ms. Boswell and Dr. Husband. She expressed her belief that Ms. Boswell was upset that Petitioner criticized Dr. Husband because Dr. Husband was Ms. Boswell’s direct report, i.e., that Petitioner’s criticism “was a reflection on her.” On or about October 5, 2016, Petitioner was informed that her duty station was being changed from Daytona Beach to New Smyrna Beach. Petitioner testified that she posed four questions to Dr. Husband as to the reasons for the transfer and that, in her opinion, Dr. Husband’s responses did not justify the action. Petitioner felt that as the WIC nutrition program director, she should be in Daytona Beach, the largest administrative office. Thus, Petitioner could think of no reason for the move other than retaliation for her criticism of Dr. Husband. Ms. Boswell testified credibly that the reason for Petitioner’s transfer was that New Smyrna Beach was reopening WIC services at the office. In light of how well things went with the opening of the Orange City office, she wanted Petitioner to go to New Smyrna Beach to make sure that location was up and running. She testified that the reassignment was not a punishment, rather, “that was her job” to make sure WIC was running well. Her testimony is credited. In addition to the fact that Dr. Boswell had perfectly legitimate reasons for having Petitioner cover the New Smyrna Beach office, it is clear that Petitioner suffered no adverse employment action as a result. Petitioner lives between Daytona Beach and New Smyrna Beach, and the New Smyrna Beach office is no further from her home than the Daytona Beach office. Petitioner’s pay was not changed, her title was not changed, and her benefits were not changed.1/ More to the point, Petitioner neither pled nor proved that the change in duty station had anything to do with discrimination based on race, color, religion, sex, pregnancy, national origin, age, handicap, or marital status; that it was taken because Petitioner opposed any practice engaged in by FDOH-Volusia based on race, color, religion, sex, pregnancy, national origin, age, handicap, or marital status; or that it was based on Petitioner having made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing regarding conduct based on race, color, religion, sex, pregnancy, national origin, age, handicap, or marital status. On or about October 18, 2016, Petitioner received a Documented Counseling and Performance Notification (Documented Counseling) from Dr. Husband. The Documented Counseling included a number of deficiencies in performance, and several corrective measures. The deficiencies included: that Petitioner failed to monitor and spend allocated WIC funding during the 2015-16 fiscal year; that the Plan submitted by Petitioner was rejected by the administrator for lack of detail, grammatical errors, and poor work product, and when the Plan was finally completed it was discovered that Petitioner’s staff performed the majority of the work; that the WIC participation rate (65 percent) was significantly less than the program goal (85 percent); and that Petitioner failed to support efforts to refer WIC clients to the dental hygienist at the Orange City location. The Documented Counseling also reflected that Petitioner had been disrespectful to Ms. Boswell and Dr. Husband. Petitioner refused to sign the Documented Counseling to acknowledge her receipt. Petitioner provided excuses for the deficiencies noted, e.g., she used most of the allocated WIC funding; the draft Plan was mostly complete, and she had never before been required to submit a draft nine days before its final submission date; she was only required to increase WIC participation by four percent per year; it was not in the WIC scope of work to facilitate clients to get dental services, just to refer them; she objected to co-location of the dental hygienist in the WIC office and, in any event, referrals were not the responsibility of management, only staff. None of Petitioner’s explanations were convincing. Rather, the testimony of Ms. Boswell and Dr. Husband that the Documented Counseling was completely performance-based and had nothing to do with the September 23, 2016, meeting, was compelling and is accepted. More to the point, Petitioner neither pled nor proved that the Documented Counseling had anything to do with discrimination based on race, color, religion, sex, pregnancy, national origin, age, handicap, or marital status; that it was taken because Petitioner opposed any practice engaged in by FDOH-Volusia based on race, color, religion, sex, pregnancy, national origin, age, handicap, or marital status; or that it was based on Petitioner having made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing regarding conduct based on race, color, religion, sex, pregnancy, national origin, age, handicap, or marital status. On or about December 16, 2016, Petitioner received an oral reprimand. The oral reprimand noted that Petitioner violated prior instruction and FDOH-Volusia written policy regarding absence from work and reporting such absences to her supervisor by telephone. The oral reprimand was documented. Petitioner refused to sign the oral reprimand documentation to acknowledge her receipt. Petitioner acknowledged that prior notice of absences is important so that FDOH-Volusia could make sure personnel were available to perform clinical services. Despite Petitioner’s prior knowledge that she would not be at work on November 28, 2016, she did not call her supervisor, Dr. Husband, until after 8:00 a.m. on November 28, 2016. She left an earlier voicemail with a direct report. The testimony of Ms. Boswell and Dr. Husband that the oral reprimand was completely performance-based and had nothing to do with the September 23, 2016, meeting, was compelling and is accepted. More to the point, Petitioner neither pled nor proved that the oral reprimand had anything to do with discrimination based on race, color, religion, sex, pregnancy, national origin, age, handicap, or marital status; that it was taken because Petitioner opposed any practice engaged in by FDOH-Volusia based on race, color, religion, sex, pregnancy, national origin, age, handicap, or marital status; or that it was based on Petitioner having made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing regarding conduct based on race, color, religion, sex, pregnancy, national origin, age, handicap, or marital status. On April 12, 2017, Petitioner was required to participate in an investigatory interview to determine why she was absent from her duty station on numerous occasions between January 4, 2017, and April 10, 2017. Petitioner testified that she saw no problem in coming to work late since, if she was not scheduled for clinic duties, there was no adverse affect on staff or the clinic. Petitioner thought the investigatory interview for her failure to be at work during scheduled hours “was a bit harsh,” and felt that FDOH-Volusia was “monitoring her coming and going.” She testified that the monitoring of her “daily schedule, coming and going,” was related to the September 23, 2016, meeting. Petitioner provided information on her “tardies” to Ms. Ayers. Ms. Ayers had by then been assigned as Petitioner’s supervisor since Petitioner had, in another act of “speaking up and speaking out,” filed a formal grievance against Dr. Husband for retaliation.2/ Ms. Boswell testified convincingly that Petitioner was not authorized to unilaterally “flex” her time; that an agency cannot be run when employees alter their schedules without notice; and that Petitioner’s excessive absences from her duty station violated the Employees’ Handbook. The documentation provided by Petitioner was deemed to be insufficient to justify her absences, and did not explain why Petitioner failed to get approval from a supervisor before modifying her work schedule. Thereafter, on or about June 22, 2017, Petitioner received a written reprimand for the absences. Petitioner refused to sign the written reprimand to acknowledge her receipt. The testimony of Ms. Boswell and Ms. Ayers that the written reprimand was completely performance-based and had nothing to do with the September 23, 2016, meeting, was compelling and is accepted. More to the point, Petitioner neither pled nor proved that the written reprimand had anything to do with discrimination based on race, color, religion, sex, pregnancy, national origin, age, handicap, or marital status; that it was taken because Petitioner opposed any practice engaged in by FDOH-Volusia based on race, color, religion, sex, pregnancy, national origin, age, handicap, or marital status; or that it was based on Petitioner having made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing regarding conduct based on race, color, religion, sex, pregnancy, national origin, age, handicap, or marital status. The June 22, 2017, written reprimand was the last of the retaliatory actions for the September 23, 2016, meeting alleged by Petitioner. Petitioner has alleged that the October 5, 2016, change in duty station; the October 18, 2016, Documented Counseling; the December 16, 2016, oral reprimand; the April 12, 2017, investigatory interview; and the June 22, 2017, written reprimand were all unwarranted retaliation for the statement she made during the September 23, 2016, meeting, i.e., that Dr. Husband had been negative towards her. Petitioner acknowledged that there was “some truth” in the discipline, but lots of “fluff.” To the contrary, the evidence is convincing that, if anything, FDOH-Volusia was, and remains, exceedingly lenient and accommodating to Petitioner with regard to the substantiated discipline meted out. As set forth previously, Petitioner has not been terminated or demoted, and has not suffered a pay decrease or a decrease in benefits. While her duty station was moved from Daytona Beach to New Smyrna Beach, those locations are approximately the same distance from Petitioner’s home, and she has since been moved back to Daytona Beach for “need” related reasons. Respondent in this case presented hours of compelling testimony from multiple credible witnesses regarding Petitioner’s poor management skills, poor interpersonal skills, poor leadership skills; her tense, argumentative, and disrespectful attitude; and more. The testimony was, presumably, offered to demonstrate that FDOH-Volusia had a legitimate, non- discriminatory basis for the alleged adverse employment actions taken against Petitioner. The testimony and evidence was unnecessary. Not once during the course of the hearing did Petitioner allege or argue that the actions taken as described herein had anything to do with discrimination or retaliation based on race, color, religion, sex, pregnancy, national origin, age, handicap, or marital status. Petitioner stated that the actions taken against her were the result of her having “spoken up and spoken out” against negative comments from her supervisor, Dr. Husband. There was nothing raised in Petitioner’s Employment Complaint of Discrimination, in her Petition for Relief, in her statement of position in the Joint Pre-hearing Stipulation, in the testimony and evidence that she offered at the final hearing, or in her Proposed Recommended Order that even intimates that FDOH-Volusia committed an unlawful employment practice as established in section 760.10, Florida Statutes. As will be discussed herein, the failure to allege, argue, or prove discrimination or retaliation based on a protected class or opposition to an unlawful act constitutes a failure to meet the most basic jurisdictional element of an unlawful employment practice complaint.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing Petitioner, Lisa J. Funchess’s Petition for Relief, FCHR No. 201701356. DONE AND ENTERED this 17th day of January, 2019, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of January, 2019.
