Findings Of Fact David Kelly, certified since 1973 as an emergency medical technician and as an ambulance driver, does business as Franklin Ambulance Service, under contract to the Franklin County Commission. Franklin Ambulance Service held ambulance service license No. 221 from February 2, 1982, through February 1, 1983. An application for renewal of this license, dated January 19, 1983, has been filed with petitioner Department of Health and Rehabilitative Services (HRS). Franklin County itself owns the two ambulances respondent operates. One ambulance had been driven 160,000 miles at the time of hearing; and the other had been driven more than 200,000 miles. They both require maintenance frequently. The ambulances are converted vans with no barrier between the driver and the back of the vehicle. Typically one ambulance is stationed in Apalachicola and the other in Carrabelle. Cases that Weems Memorial Hospital in Apalachicola is not prepared to handle are generally taken to Tallahassee Memorial Regional Medical Center from the eastern part of the county, and to Bay Memorial Regional Medical Center from the western part of the county. TELEPHONE ACCESS When the ambulance based in Apalachicola is not in use or being serviced, Mr. Kelly keeps it at his residence on 26th Street in Apalachicola. He has a telephone in his house. In addition, according to Mr. Kelly: The County has a volunteer phone system. That means that it is answered by volunteers in the community. There is four phones in Apalachicola, four phones in Carrabelle that are manned by volunteers. In the event that someone is not going to be at the phone and a call comes in, a recorder is put on the telephone to tell the people of Carrabelle, if they need an ambulance, to call the ambulance number in Apalachicola, and the recorder in Apalachicola is very rarely put on, but whenever it is put on, it tells them to call the Weems Memorial Hospital, and the Weems Memorial helps them secure an ambulance. (T. II. p. 77). The ambulances maintain direct radio contact with Weems Memorial Hospital when in service. This system has not always worked perfectly. About noon on September 23, 1982, calls were placed to the ambulance telephones in Apalachicola and in Carrabelle, in an effort to secure an ambulance, but to no avail. Both in Carrabelle and in Apalachicola, volunteers sometimes answered the telephone for Franklin Ambulance Service. Debra Johnson, when she had completed her training as an emergency medical technician but before being certified, was such a volunteer in October of 1982. At the time, Nelson Noble worked for Mr. Kelly and had responsibility for ambulance service in Carrabelle and the eastern part of the county generally, as well as being pastor of the Church of God in Apalachicola. On October 9, 1982, Mr. Noble asked Ms. Johnson to answer the telephone while he went to Apalachicola, leaving an oxygen tank, bandages, air splints and instructions to stabilize any patient who needed it, until he could get back from Apalachicola. On Sunday, October 10, 1982, Mr. Noble had the ambulance at his church. He was gone all day and did not return to relieve the volunteer manning the telephone until ten o'clock that night. At about half past noon on October 12, 1982, Mr. Noble asked Ms. Johnson to answer the telephone and to tell callers that the ambulance was on a run to Tallahassee. At 6:30 or 7:00 that evening, Ms. Johnson was told that Mr. Nelson and the ambulance were at Mr. Noble's house in Carrabelle. She called and complained that he had not kept her informed of his whereabouts. On one occasion, the ambulance went to Tallahassee with a patient and did not return for six hours. Mr. Noble "had been shopping, and had bought parts for his truck. . ." T. 1 p. 151. There was no showing that these particular incidents or other specific interruptions of continuous telephone access by the Carrabelle public were brought to Mr. Kelly's attention at the time. There was no showing that the Apalachicola ambulance was inaccessible to the public at any time, except for good reason. DRIVER ATTENDS WHILE EMT DRIVES On June 27, 1982, two cars travelling in opposite directions across Gorrie Bridge collided head on. Archie Brooks Holton, a Franklin County deputy sheriff, was the first law enforcement officer on the scene. He radioed his dispatcher asking that a fire truck and at least one ambulance be sent to the bridge. Twenty or thirty minutes later the Apalachicola ambulance driven by Mr. Kelly arrived. Seated next to him was James Clark Tomlin. After accident victims had been placed in the ambulance, Mr. Kelly drove off, with Mr. Tomlin attending the patient in the rear of the ambulance. En route to the hospital, one of the patients threw up and Mr. Tomlin cleared out vomitus with his fingers, then used a suction device. At all pertinent times, Mr. Tomlin was a certified ambulance driver, but was not certified as an emergency medical technician. Explaining why Mr. Tomlin, rather than he, attended the patient in the back of the ambulance as they left the Gorrie Bridge accident, Mr. Kelly testified: Whenever I started to leave the accident scene, Jim Tomlin told me that he had left his glasses. He did not have his glasses with him, and he is required on his driver's license, to drive with glasses, and he said that he could not see to back off that bridge and pass those cars and turn around without his glasses, that the glare was too much for him. (T. II. p. 68). Another traffic accident, on State Road 67 five miles north of Carrabelle, resulted in another accident victim's being transported by the Apalachicola ambulance on or about August 31, 1982. Again Mr. Kelly drove and Mr. Tomlin rode in back. Whether or not a physician's assistant was also in the back of the ambulance while it travelled to Dr. Sands' office, Mr. Tomlin and the patient were alone in the back of the ambulance while Mr. Kelly drove it from Dr. Sands' Franklin County office to Tallahassee Memorial Regional Medical Center. Mr. Kelly explained: On the way to the ambulance, Jim Tomlin told me that he had gotten nauseated and sick from working. It was a hot night and he said that he was nauseated and sick to his stomach, and he didn't think that he would be able to drive, and I told him that I would drive him on to the doctor's office, and we would see, when we got there, if he thought he'd be able to drive on to Tallahassee. . .Jim, at that time, informed me that he was not able. . .to drive on to Tallahassee, that he still felt too bad. I told him that, since the patient was stabilized, we had the splints on the patient, to watch him and inform me if anything went wrong, and I would drive on to Tallahassee. (T. II. pp. 61-62). According to Messrs. Kelly and Tomlin these two occasions were the only ones on which Mr. Tomlin rode in the back of the ambulance with a patient while Mr. Kelly drove the ambulance. The weight of the evidence was otherwise. At various times, including November 1, 1982, Vicki Lynn Holton, a nurse at Weems Memorial, saw the Apalachicola ambulance arrive at the hospital with Mr. Kelly driving and Mr. Tomlin attending a patient in the back of the ambulance. Dr. Photis Nichols has on several occasions seen the ambulance leave Weems Memorial with Mr. Tomlin attending the patient in the back and Mr. Kelly driving. Some time in 1981 or 1982 Mr. Kelly drove an ambulance to Tallahassee Memorial Regional Medical Center with a mother and newborn infant in the back attended by Mr. Tomlin. On September 3, 1982, an ambulance left St. Teresa with a patient, his wife, and Mr. Tomlin in the back of the ambulance and Mr. Kelly driving. Dora Lee White, PBX operator at Weems Memorial, has seen Mr. Kelly driving an ambulance and Mr. Tomlin in the back attending a patient from time to time over the last three years. Ms. Julia Barber, another PBX operator at Weems Memorial, can see the ambulance arrive and depart from her work station. Over the last three years, Mr. Kelly has almost always driven and Mr. Tomlin has almost always attended the patient in the back of the ambulance, as far as she has observed. A former employee of the ambulance service, Nancy Cone, observed Mr. Kelly driving and Mr. Tomlin attending a patient in the back of the ambulance, on ten or fifteen occasions. The evidence overwhelmingly established that Mr. Kelly routinely drove the ambulance, leaving Mr. Tomlin to take care of patients. Because of the van configuration, the two men could communicate. In a sense, the licensed driver, Mr. Tomlin, was in the presence of a certified emergency medical technician, Mr. Kelly, when he attended patients in the back of the ambulance Mr. Kelly was driving. When Mr. Noble was hired to take charge of ambulance operations in Carrabelle, he was certified as an ambulance driver, but not as an emergency medical technician. (He was nevertheless paid one third again as much as the two emergency medical technicians he replaced earned between them, perhaps because part of his duties was "public relations.") Mr. Noble had been previously certified as an emergency medical technician and was recertified on October 15, 1982. While working for Franklin Ambulance Service, but before his recertification as an emergency medical technician, Mr. Noble drove or rode in the Carrabelle ambulance numerous times when patients were being transported and without a duly certified emergency medical technician on the ambulance. Mr. Noble's testimony that this occurred only once has not been credited. RECORD KEEPING Whenever one of the ambulances makes a trip, an employee of the ambulance service filled out a "REMSMO Ambulance Report" form. Even though Mr. Kelly drove and Mr. Tomlin acted as ambulance attendant, the "run reports" indicated that Mr. Tomlin drove and Mr. Kelly acted as the attendant. False reporting of this kind occurred repeatedly, including the night of the accident on Gorrie Bridge.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner deny respondent's application for licensure, without prejudice to the filing of a new application 90 days after the effective date of the denial. DONE and ENTERED this 15th day of June, 1983, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of June, 1983. COPIES FURNISHED: Steven W. Huss, Esquire Department of Health and Rehabilitative Services 1323 Winewood Boulevard, Suite 406 Tallahassee, Florida 32301 Van P. Russell, Esquire 41 Commerce Street Apalachicola, Florida 32320 David Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue Whether HRS should revoke respondent Sprayberry's certification as an emergency medical technician or take other disciplinary action, for the reasons alleged in the administrative complaint?
Findings Of Fact The parties are in apparent agreement that respondent Wiley R. Sprayberry has held emergency medical technician certification No. JT 004523, at all pertinent times. Warranted Search It was freezing cold at about ten o'clock on the night of February 13, 1986, when Eric Adams, Kenneth Allen Tate, Jerry Eldridge and Jesse Joyner, all of the Holmes County Sheriff's Department, arrived to execute a search warrant at the "ambulance shack," the building that Holmes County emergency medical technicians occupied between ambulance runs. The warrant issued earlier the same day, on the strength of an affidavit Wilburn G. Baker had executed that morning at the state attorney's office. (T. 343-4). Mr. Baker's visit to the state attorney's office followed a stormy meeting of the Holmes County Ambulance Service emergency medical technicians. During one such meeting Mr. Baker told Messrs. Sprayberry and Cullifer "that he wished neither one of them had worked there . . . " (T. 195) Wilburn Baker had begun working for the Holmes County Ambulance Service sometime after he obtained his own certification as an emergency medical technician in 1978, and was already on board when Wiley R. Sprayberry began, in 1983. Mr. Baker took over as director of the Service when Mr. Cullifer "stepped down on his own" (T. 207) in 1985. Affidavit and warrant notwithstanding, a motion to suppress evidence obtained in the February 13, 1986 search was later granted in the criminal proceeding in which Messrs. Sprayberry and Cullifer were accused of marijuana possession on that night. The criminal prosecution was subsequently abandoned altogether. Apparently, however, on the night of the search, the authorities did not foresee these developments. They had, indeed, invited television crews and other media representatives to be on hand to witness them apprehend the respondents, whom Mr. Baker assured them they would find in possession of marijuana. Gunfire In Winter As law enforcement personnel, including a dog handler, gathered outside, Messrs. Cullifer and Sprayberry lay in beds inside the ambulance shack, covers drawn, watching a television news program. They had returned not long before from taking a Mr. Whitaker to Dothan. Among those outside the ambulance shack was Mr. Baker. Some hours before the fact (T. 349), the sheriff's office told him when the search was to take place, so that other ambulance attendants could fill in for the respondent and Mr. Sprayberry when they were arrested. After knocking and announcing their intention to execute a search warrant, Officers Adams, Tate and Eldridge entered the ambulance shack. Mr. Sprayberry remained in bed during the reading of the search warrant, but Mr. Cullifer took the opportunity to get dressed. Mr. Cullifer followed Officer Adams outside. As they walked with Officer Tate toward Mr. Cullifer's black Jeep, Officer Adams asked for the keys to the vehicle. Mr. Cullifer answered that "it's not even locked, anybody could have put anything . . . in there." (T. 371) Although the Jeep, "a hunting type vehicle," (T. 263) was capable of being locked, "you could pick the door up and s[e]t it off" (T. 272) and Mr. Cullifer never locked it when he parked it outside the ambulance shack. Instead of giving Officer Adams the keys, respondent Cullifer opened the unlocked door of the Jeep, got inside, inserted a key in the ignition lock, and started the engine. Standing beside the driver's seat and facing him, Officer Adams reached for the keys with his left hand, but Cullifer drove forward, knocking Adams backward, although not down. When his orders to halt went, unheeded, Officer Adams fired three shots. A bullet lodged in the back of the driver's seat as the Jeep sped from sight. Bag Plus Partial Cigarette In reaching (unsuccessfully) for the car keys, Officer Adams spotted a large, transparent bag under the driver's seat containing a "[g]reen leafy substance" (T. 13) that resembled marijuana. It was on account of this that he felt justified in firing on Mr. Cullifer, whom he took to be a fleeing felon. Whether the bag was of the "Zip-Loc" type he could not determine. Perhaps five minutes after he left, Mr. Cullifer returned, to be greeted by Officer Tate who wrestled him to the ground and handcuffed him. In the ensuing search of the Jeep, Officers Tate and Joyner "found a roach and all sorts of residue of marijuana." (T. 15) Partial Cigarette Only Meanwhile, inside the ambulance shack, respondent Sprayberry had decided to get dressed after all. He had just buckled his belt when he heard gunshots outside. Curious, he started for the door, only to have Officer Eldridge slam him against the wall. He was leaning against the wall, arms outstretched, when the telephone rang. Somebody from the hospital wanted to know what was happening at the ambulance shack. Still inside the ambulance shack, Mr. Sprayberry was asked for the keys to his car. Saying they were not needed since he had left his car unlocked, Mr. Sprayberry nevertheless threw his keys to a sheriff's officer. In fact, however, the Sprayberry car was locked when Officer Adams had tried to gain access before going for the key. A search of Mr. Sprayberry's car yielded "cannabis traces," (T. 15) in the form of a partial marijuana cigarette or "roach." No Other Link To Sprayberry With the help of a specially trained dog, sheriff's officers also searched the ambulance shack. Officer Tate recalled the dog's signalling suspiciously while sniffing a certain filing cabinet drawer, but nobody even opened the drawer at the time. Except inside the vehicles, no marijuana was found. City police arrived in response to reports of gunfire. "[T]here w[ere] cameras everywhere and lights everywhere." (T. 311) Mr. Baker, among others, was interviewed by the press, but he was unable to say at hearing whether a newspaper had quoted him correctly to the effect that the arrests came as a surprise to him. (T. 350-354) During the years he had known them, Mr. Baker never saw either Mr. Cullifer or Mr. Sprayberry in possession of marijuana. (T. 158). He nevertheless came to believe that they used marijuana, or so he testified. This belief he claimed sprung from statements he attributed to Mr. Cullifer, who denied making them, and which did not pertain to Mr. Sprayberry, in any event; and from leafy matter and paraphernalia Mr. Baker said he found at the ambulance shack. But emergency medical technician Robert Mitchell Taylor, who has worked for the Holmes County Ambulance Service for nine years, testified that he never saw "any indication that anybody had possessed marijuana at the ambulance shack." (T. 197) Donnie Ray Brock, a paramedic who worked for the Holmes County Ambulance Service from '78 or '9, through '86 sometime" (T. 204) testified that, during his employment there, he never had reason to believe that Messrs. Cullifer or Sprayberry "possessed marijuana while at the ambulance shack." (T. 205-6) Judith Sharon Braxton, aside from Messrs. Baker, Cullifer and Sprayberry, the only other Holmes County Ambulance Service employee who testified, said she had never seen Mr. Cullifer or Mr. Sprayberry in possession of marijuana, although she conceded she probably would not recognize marijuana if she saw it. (T. 216) Attending a Patient On February 7, 1986, respondents transported a 79 year-old man from the hospital in Bonifay to Bay Memorial Medical Center in Panama City. As they left Doctors Memorial Hospital shortly after five o'clock in the afternoon, Mary Elizabeth "Libby" Streep Kolmetz, R.N., Director of Nurses, noticed that "down to the corner, they both remained in the front seat." (T. 73) Mr. Sprayberry was driving. She saw Mr. Cullifer in the other front seat for one or two minutes, including 30 to 60 seconds that elapsed before the ambulance began its journey. The ambulance is "basically a regular van with . . high-top roof . . . [t]wo bucket seats in the front and a sliding door in the middle for the EMT's to go back and forth through." (T. 231) Because the sliding door is routinely locked open, an attendant seated on the edge of the passenger's seat can see and hear the patient while he is on the radio. Not uncommonly the attendant remained in the front seat for a minute or two as the ambulance set out, in order to communicate by radio with Doctors Memorial or Holmes County Ambulance Service. A critical electrical cord attached to the only radio that worked was long enough that the attendant could have stood somewhat closer to the patient, but it was unsafe to stand. Although the driver might have operated the radio, this was not customary. The evidence did not show that Mr. Sprayberry's performance on February 7, 1986, departed from any standard of care or acceptable practice. Mr. Cullifer's testimony that he only left patients "to make a radio transmission" (T. 237) keeping an eye on them even then, and that he did not "stay away from a patient over two or three minutes," id., has been credited. The record made of the 79-year old passenger's vital signs on February 7, 1986, does not prove otherwise. While this record reflects minimal variation in blood pressure during the 50-minute trip, the reported pulse rates vary more, and the reported rates of respiration show still more variation.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That HRS dismiss the administrative complaint filed against Wiley R. Sprayberry. DONE and ENTERED this 11th day of August, 1988, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 FILED with the Clerk of the Division Administrative Hearings this 11th day of August, 1988. APPENDIX Petitioner's proposed findings of fact Nos. 1, 2, 3, 5, 6, 7, 9, 11, 12, 13, 14, 15 and 16 have been adopted, in substance, insofar as material. Petitioner's proposed finding of fact No. 4 is not supported by the record cited. Petitioner's proposed finding of fact No. 8 has been adopted, in substance, insofar as material, except for the characterization of the bag as "Ziplock." Petitioner's proposed finding of fact No. 10 has been adopted, in substance, except as regards where the shots were aimed and where the bullets lodged. The last sentence of petitioner's proposed finding of fact No. 17 has not been adopted, despite testimony to this effect, because using the radio could distract the driver. Petitioner's proposed findings of fact Nos. 18 and 19 are rejected as unsupported by the weight of the evidence. With respect to petitioner's proposed finding of fact No. 20, no evidence supported the allegation that Cullifer had given marijuana to Sherri Pate. Respondent's proposed findings of fact Nos. 1, 2, 4, 5, 6, 8, 10, 11, 12, 13, 14, 16, 17, 18, 20, 21 and 22 have been adopted, in substance, insofar as material. With respect to respondent's proposed finding of fact No. 3, the evidence did not clearly and convincingly rule out the possibility that Baker planted the marijuana cigarettes. Respondent's proposed finding of fact No. 7 is consistent with the evidence, but raises the question why he would be "frightened by the presence of police officers." With respect to respondent's finding of fact No. 9, nobody corroborated Baker's allegation of marijuana use or possession by respondent at any time other than February 13, 1986. Respondent's proposed finding of fact No. 15 is immaterial. With respect to respondent's proposed finding of fact No. 19, the cord would not reach far enough to allow the attendant to sit in the patient compartment. Respondent's proposed finding of fact No. 23 is rejected as unsupported by the evidence. COPIES FURNISHED: JOHN R. PERRY 2639 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32303 BONNIE K. ROBERTS P. O. BOX 667 BONIFAY, FLORIDA 32425 GREGORY L. COLER, SECRETARY DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES 1323 WINEWOOD BOULEVARD TALLAHASSEE, FLORIDA 32399-0700
The Issue Whether the Respondent, H & C Retirement Center, Inc., d/b/a Retirement Life Center, committed the violation as alleged and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged with the responsibility and authority to regulate facilities licensed pursuant to Chapter 400, Florida Statutes. At all times material to the allegations of this case, the Respondent was a licensed assisted living facility (ALF) doing business in Broward County, Florida. As such the Respondent is charged with operating in accordance with Chapter 400, Florida Statutes, and Chapter 58A-5, Florida Administrative Code. Broward County's Emergency Management Division ( EMD) is entrusted with reviewing the Emergency Management Plans for all ALFs located in Broward County, Florida. The EMD filed a complaint against the Respondent on or about September 4, 1998. This complaint alleged that the Respondent had failed to update its Emergency Management Plan, a requirement set forth in the rules governing ALFs. The complaint was assigned to Annette Thomas, a surveyor employed by the Petitioner, for investigation. Ms. Thomas notified the Respondent of the alleged violation and directed the Respondent to correct the deficiency. Written notice of the deficiency was provided to the Respondent on or about September 22, 1998. Thereafter, Ms. Thomas waited for verification from either the Respondent or the EMD that the deficiency had been corrected. Ms. Thomas did not visit the facility, did not review the sufficiency of the physical plant, and did not allege any other deficiency with regard to the safety to residents. As part of her investigation, Ms. Thomas waited thirty days for the Respondent to correct the deficiency. It was not corrected within that time frame. On or about October 30, 1998, Ms. Thomas again drafted a notice to the Respondent to advise that the deficiency had not been corrected. This notice was provided to the Respondent on or about November 10, 1998. The Respondent did not correct the deficiency prior to the issuance of a deficiency letter issued on December 22, 1998. This notice advised the Respondent that the Petitioner would seek an administrative penalty for the uncorrected deficiency. Eventually, Ms. Thomas verified that the updated plan was approved and the facility was cleared of the deficiency in January of 1999. As part of its responsibility, the EMD had notified the Respondent of the requirement to file an updated Emergency Management Plan on or about February 27, 1998. Thereafter, the Respondent did not timely file the required documentation. After notice from the Petitioner, the Respondent contacted Mr. Gabel, the Planning Manager for the EMD, on or about December 7, 1998. Thereafter, Mr. Gabel received and reviewed the updated information submitted by the Respondent. Mr. Gabel requested additional information which he received on December 31, 1998. The updated plan was approved by Mr. Gabel on January 4, 1999. The Respondent maintained that actions were taken expeditiously to correct the cited deficiency but that it waited for the local Fire Department to perform a required inspection. This inspection was not completed until December 1998. Further, the Respondent argued that it serves an indigent population and that the imposition of a fine would not serve any purpose as the residents were not in danger of harm. Additionally, Respondent claimed such fine would be a financial hardship for it. The Respondent has not offered a credible explanation for why the documentation was not submitted in a timely manner. The Respondent failed to timely submit an updated EMD and the attendant documentation to the EMD. In this regard the testimony of Mr. Gabel has been deemed persuasive.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a Final Order imposing a fine in the amount of $1000.00. DONE AND ENTERED this 29th day of September, 2000, in Tallahassee, Leon County, Florida. J. D. Parrish Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 2000. COPIES FURNISHED: Alba M. Rodriguez, Esquire Agency for Health Care Administration 8355 Northwest 53rd Street Miami, Florida 33166 Som Ramrup, Esquire Law Offices of Ramrup & Chang, P.A. 5605 Northwest 27th Court Lauderhill, Florida 33313 Sam Power, Agency Clerk Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308-5403 Julie Gallagher, General Counsel Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308-5403
Findings Of Fact At all times relevant hereto Daniel Francis Sanchez was licensed as a physician by the Florida Board of Medical Examiners having been issued license number ME0038795. At all times relevant hereto Respondent was Regional Medical Director of IMC which operated HMO offices in Hillsborough and Pinellas Counties. On October 17, 1985, Alexander Stroganow, an 84 year old Russian immigrant and former cossack, who spoke and understood only what English he wanted to, suffered a fall and was taken to the emergency room at Metropolitan General Hospital. He was checked and released without being admitted for inpatient treatment. Later that evening his landlady thought Stroganow needed medical attention and again called the Emergency Medical Service. The ambulance with EMS personnel arrived and concluded Stroganow was no worse than earlier when taken to the emergency room and they refused to transport him again to the hospital. The landlady then called the HRS hotline to report abuse of the elderly. The following morning, October 18, 1985, an HRS case worker was dispatched to the place where Stroganow lived. She was let in by the landlady and found an 84 year old man who was incontinent, incoherent, apparently paralyzed from the waist down, with whom she could not carry on a conversation to find out what condition he was in. She called for a Cares Unit to come and evaluate the client. An HRS Cares Unit is a two person team consisting of a social worker and nurse whose primary function is to screen clients for admission to nursing homes and adult congregate living facilities (ACLF). The nurse on the team carries no medical equipment such as a stethoscope, blood pressure cuff, or thermometer, but makes her determination on visual examination only. Upon arrival of the Cares Unit both members felt Stroganow needed to be placed where he could be attended. A review of his personal effects produced by his landlady showed his income to be over the maximum for which he could qualify for medicaid placement in a nursing home; that he was a member of IMC's Gold- Plus HMO; his social security card; and several medications, some of which had been prescribed by Dr. Dayton, a physician employed by IMC at the South Pasadena Clinic. The Cares team ruled out ACLF placement for Stroganow at the time because he was not ambulatory but felt he needed to be placed where he could be attended to and not left alone over the coming weekend. To accomplish this, they proceeded to the South Pasadena HMO clinic of IMC to lay the problem on Dr. Dayton, the Assistant Medical Director for IMC in charge of the South Pasadena Clinic. Stroganow had been a client of the South Pasadena HMO for some time and was well known at the clinic and by EMS personnel. There were two and sometimes three doctors who treated patients at this clinic and, unless the patient requested a specific doctor, he was treated by the first doctor available. Stroganow had not specifically requested he be treated by Dr. Dayton. When the Cares team met with Dr. Dayton they advised him that Stroganow had been taken to Metropolitan General Hospital Emergency Room the night before but did not advise Dayton that the EMS team had refused to transport Stroganow to the hospital emergency room a second time the previous evening. Dayton telephoned the emergency room at Metropolitan General to ascertain the medical condition of Stroganow when brought in the evening before. With the information provided by the Cares team and the hospital, Dayton concluded that Stroganow should be given a medical evaluation and the quickest way for that to occur was to call the EMS and have Stroganow taken to an emergency room for evaluation. When the Cares team arrived, Dayton was treating patients at the clinic. A doctor's office, or clinic, is not a desirable place to have an incontinent, incoherent, non- ambulatory patient brought to wait with other patients until a doctor is free to see him. Nor is the clinic equipped to do certain procedures frequently needed in diagnosing the illness and determining treatment needed for an acutely ill patient. EMS squads usually arrive within minutes of a call to 911 for emergency medical assistance and it was necessary for someone to be with Stroganow with the EMS squad arrived. Accordingly, Dayton suggested that the Cares team return to Stroganow and call 911 for assistance in obtaining a medical evaluation of Stroganow. If called from the HMO office, the EMS squad would have arrived long before the Cares team could have gotten back to Stroganow. Dr. Dayton did not have admitting privileges at any hospital in Pinellas County at this time. Upon leaving the South Pasadena HMO clinic, the Cares team returned to Stroganow. Enroute, they stopped to call a supervisor at HRS to report that the HMO had not solved their problem. The supervisor then called the Administrator at IMC to tell them that one of their Gold-Plus patients had an emergency situation. Respondent, Dr. Sanchez, called and advised that Dr. Dayton would take care of the problem. Later, around 2:00 p.m. when no ambulance had arrived, the Cares team called 911 from a telephone a block away from Stroganow's residence and arrived back just before the emergency squad. The EMS squad again refused to transport Stroganow to an emergency room and this information was passed back to Sanchez who directed that Stroganow be taken to Lake Seminole Hospital. This was the first time either Dayton or Sanchez was aware that the EMS squad had refused to transport Stroganow to an emergency room. Although Sanchez did not have admitting privileges at Lake Seminole Hospital, IMC had a contractual agreement with Lake Seminole which provided that certain staff doctors at Lake Seminole would admit patients referred to Lake Seminole by IMC. Pursuant to this contractual arrangement, Stroganow was admitted to Lake Seminole Hospital where he was treated for his injuries and evaluated for his future medical needs.
Conclusions THIS CAUSE came before the State of Florida, Agency for Health Care Administration (“the Agency") for the issuance of a final order. 1. On June 28, 2013, Sebring Hospital Management Associates, LLC d/b/a Highlands Regional Medical Center (“Highlands Regional”) requested a formal administrative hearing to contest the preliminary denial of Certificate of Need (“CON”) Application No. 10182, which it submitted to establish a seven-bed comprehensive medical rehabilitation unit in District 6 (Highlands County). Filed May 15, 2014 4:07 PM Division of Administrative Hearings 2. The matter was referred to the Division of Administrative Hearings (“DOAH”) where it was assigned Case No. 13-2512 CON. 3. On June 28, 2013, Haines City HMA, LLC d/b/a Heart of Florida Regional Medical Center (“Heart of Florida”) requested a formal administrative hearing to contest the preliminary denial of CON Application No. 10180, which it submitted to establish a 14-bed comprehensive medical rehabilitation unit in District 6 (Polk County). 4. The matter was referred to DOAH where it was assigned Case No. 13-2513 CON. 5. On July 23, 2013, DOAH issued an Order of Consolidation. 6. On April 23, 2014, Highlands Regional filed a Notice of Voluntary Dismissal. 7. On April 23, 2014, Heart of Florida filed a Notice of Voluntary Dismissal. It is therefore ORDERED: 8. The denial of Highlands Regional’s CON Application No. 10182 is upheld. 9. The denial of Heart of Florida’s CON Application No. 10180 is upheld. ORDERED in Tallahassee, Florida, on this He day of thax , 2014. Elizabeth Dudek, Secretary Agency for Healjh Care Administration
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I CERTIFY that a true and correct copy of this Final Order was served on the below- named persons by the method designated on this [Ema Loe , 2014. . Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308 (850) 412-3630 John D. Newton, IT Lorraine M. Novak, Esquire Administrative Law Judge Office of the General Counsel Division of Administrative Hearings Agency for Health Care Administration (Electronic Mail) (Electronic Mail) James McLemore, Supervisor Corrine T. Porcher, Esquire Certificate of Need Unit Susan C. Smith, Esquire Agency for Health Care Administration Geoffrey D. Smith, Esquire (Electronic Mail) Sabrina B. Dieguez, Esquire Smith & Associates 3301 Thomasville Road, Suite 201 Tallahassee, Florida 32308 Corinne@smithlawtlh.com Susan@smithlawtlh.com Geoff@smithlawtlh.com Sabrina@smithlawtlh.com LL (Electronic Mail)
The Issue The issue presented is whether Petitioners are entitled to additional benefits pursuant to the State of Florida Employees Group Health Self Insurance Plan.
Findings Of Fact At all times material hereto, Petitioner Della G. Sphaler (hereinafter "Petitioner") has been an employee of the State of Florida with health insurance coverage under the State of Florida Employees Group Health Self Insurance Plan (hereinafter "the Plan"). The Plan is administered by Blue Cross and Blue Shield of Florida, Inc. (hereinafter "Blue Cross/Blue Shield"), pursuant to an Administrative Services Agreement between the State and Blue Cross/Blue Shield. On or about November 14, 1989, Petitioner's doctor recommended that she be admitted to Humana Hospital-Palm Beaches for psychiatric services on an emergency basis. At the time, Petitioner knew that Humana was not a Preferred Patient Care Provider (hereinafter "PPC") under the Plan. A PPC provider has an agreement with Blue Cross/Blue Shield to provide health care services at set fees to individuals under the Plan. The Plan provides higher benefits when PPC providers are used. Petitioner told her doctor that Humana was a non-PPC provider and that she did not want to go to a hospital unless her bill would be paid by her insurance. However, her doctor wanted her to go to Humana specifically, and she agreed. Thereafter, Petitioner and William Sphaler (hereinafter "husband") went to Humana Hospital. They spoke to an employee at Humana regarding Petitioner's insurance coverage under the Plan, and that unidentified employee telephoned Blue Cross/Blue Shield. Petitioner was not a party to the conversation between the Humana Hospital admissions clerk and the unidentified employee of Blue Cross/Blue Shield, and her husband heard none of the conversation. Further, neither Petitioner nor her husband personally made any contact with Blue Cross/Blue Shield or Respondent regarding the existence or extent of any insurance coverage under the Plan if Petitioner were admitted at Humana. After her conversation, the clerk at Humana told Petitioner that Blue Cross/Blue Shield would pay 80 percent for the first three days of admission and 100 percent thereafter, according to Petitioner's and her husband's testimony. Petitioner was admitted to Humana on November 14, 1989, with an admitting diagnosis of major depression. She remained there until her discharge on December 8, 1989. As a result of the phone call from Humana, on November 14, 1989, the Blue Cross/Blue Shield computer generated a form letter to Petitioner advising her that under the Hospital Stay Certification component of the Plan Petitioner's emergency hospital stay was certified for three days and that contact by the hospital would be necessary to recertify the admission for additional days. That letter further advised as follows: We remind you that the review was limited to determining the appropriate length of stay for the emergency admitting diagnosis and did not question medical necessity. We further remind you that payment of benefits is still subject to the terms of your Health Insurance Policy. Neither Petitioner nor her husband contacted Blue Cross/Blue Shield to verify or ascertain benefits upon their receipt of that letter. Petitioner's total bill for her stay at Humana was $17,652.53. The bill was primarily for room charges. Humana charged $463 a day for eleven days in a semi-private room and $713 a day for an additional thirteen days in a semi- private room. Blue Cross/Blue Shield paid a total of $6,751.50 of Petitioner's hospital bill. That payment covered portions of Petitioner's bill for the entire stay. Since Humana is a non-PPC hospital, payment for services is controlled by Section II.A.1. of the Plan's Benefit Document, amended effective July 1, 1988, which covers non-PPC hospital inpatient room and board services as follows: When confined to a semi-private or private room or ward, 80 percent of the hospital's average semi-private room rate shall be paid but not to exceed an actual payment of one-hundred and fifty-two dollars ($152.00) per day. The Benefit Document also establishes deductibles under the Plan in Section VI.C. as follows: "Two hundred dollars ($200.00) per admission to a non-PPC provider hospital, specialty institution or residential facility." The Hospital Stay Certification component of the Plan, like the Pre- admission Certification component, if complied with, does not increase the benefits payable under the Plan. Rather, Section XXIV.C. of the Benefit Document provides that the benefits set forth in Section II.A. will be paid if an elective admission to a non-PPC hospital is certified and will not be paid if the admission is not certified. Since Petitioner obtained certification, she was entitled to benefits as provided in Section II.A., i.e., a maximum of $152 per day for room charges. Blue Cross/Blue Shield properly calculated and paid the benefits to which Petitioner is entitled. Petitioner is entitled to no additional benefits under the Plan.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Petitioners' claim for additional benefits for the November 14, 1989, Humana hospitalization. DONE and ENTERED this 5th day of April, 1994, at Tallahassee, Florida. LINDA M. RIGOT 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 5th day of April, 1994. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 93-5971 Petitioners' proposed findings of fact numbered 1-4 and 6 have been adopted either verbatim or in substance in this Recommended Order. Petitioners' proposed finding of fact numbered 5 has been rejected as not being supported by the weight of the competent evidence in this cause. Respondent's proposed findings of fact numbered 1-5 and 8-10 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed finding of fact numbered 6 has been rejected as being unnecessary to the issues involved herein. Respondent's proposed findings of fact numbered 7, 11, and 12 have been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony. COPIES FURNISHED: John P. Marinelli, Esquire John P. Marinelli, P.A. 1615 Forum Place Suite 4-B, Barristers Building West Palm Beach, Florida 33401 Augustus D. Aikens, Jr., Esquire Chief, Benefit Programs and Legal Services Division of State Employees' Insurance 2002 Old St. Augustine Road, B-12 Tallahassee, Florida 32301-4876 William H. Lindner, Secretary Department of Management Services Knight Building, Suite 307 Koger Executive Center 2737 Centerview Drive Tallahassee, Florida 32399-0950 Paul A. Rowell, General Counsel Department of Management Services Knight Building, Suite 307 Koger Executive Center 2737 Centerview Drive Tallahassee, Florida 32399-0950
