The Issue At issue herein is whether or not the Petitioner is entitled to continue receiving vocational rehabilitation benefits.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the arguments of the parties and the entire record compiled herein, the following relevant facts are found. Ms. Virginia Ryan, Petitioner, has been a client in the Vocational Rehabilitation program since September of 1978. Pursuant to an administrative review by her counselor and specialist assigned to the Vocational Rehabilitation program, Petitioner was advised on February 1, 1980, that she was being terminated from the Vocational Rehabilitation program for the following reasons: Petitioner's case had been active since September, 1978, without accomplishment vocationally. Vocational Rehabilitation services had expended approximately Two Thousand ($2,000.00) Dollars to rehabilitate Petitioner, with no visible results from such expenditures. Work evaluation reports completed for Petitioner at Jackson Memorial Hospital Rehabilitation Center indicate that Petitioner was not trainable or employable. Petitioner's participation in two vocational training sessions were without success. Counselors for vocational rehabilitative services who had serviced and counseled Petitioner concluded, based on the foregoing, that further expenditure of Federal funds would not result in any gainful employment for Petitioner. Petitioner charges that her counselor, Mrs. Harriet B. Weaver, was unprofessional and had sabotaged her training program at Charron Williams Vocational Center; had practiced reverse discrimination with respect to her counseling and efforts to rehabilitate her vocationally; was incompetent to carry out any program to rehabilitate her and had sabotaged her efforts to obtain services through a dental program. Harriet Weaver, a Vocational Rehabilitation counselor since approximately January of 1976, was assigned to service Petitioner during approximately April of 1979. Mrs. Weaver examined Petitioner's medical history file and accepted her as an orthopedic disability client. (Respondent's Composite Exhibit 1.) During the period April, 1979, through February, 1980, Mrs. Weaver assigned Petitioner to approximately four dentists and enrolled her in the rehabilitation program at Charron Williams Vocational School. During this period, Mrs. Weaver also obligated the Vocational Rehabilitation program to defray lodging expenses for Petitioner at the Cadillac Hotel in the amount of approximately Two Hundred ($200.00) Dollars. The evidence also reveals that the program expended approximately Eight Hundred Seventy-seven ($877.00) Dollars to Petitioner in taxi fares, of which approximately 70 percent represented unauthorized fares for taxicab services. Evidence also reveals that Petitioner has repeatedly appeared late for scheduled appointments with dentists, doctors, therapists, and for that matter, she arrived at the subject hearing approximately thirty (30) minutes late, with no explanation for her lateness. Doctors Wainger and Rudman determined that Petitioner was not employable and would not benefit from vocational rehabilitative training so long as her present attitude continued.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Respondent's termination of Petitioner from the Vocational Rehabilitation program be UPHELD. RECOMMENDED this 21st day of July, 1980, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st Day of July, 1980. COPIES FURNISHED: Ms. Virginia Ryan 685 Northeast 64th Street Miami, Florida 33138 Morton Lightner, Esquire District 11 Legal Counsel Department of Health and Rehabilitative Services 401 Northwest 2nd Avenue, Room 1040 Miami, Florida 33128 Alvin J. Taylor, Secretary Department of Health and Rehabilitative Services 1321 Winewood Boulevard Tallahassee, Florida 32301
Findings Of Fact In 1984, petitioner, Louise Blair, visited the Miami office of respondent, Department of Labor and Employment Security, Division of Vocational Rehabilitation (Division), for the purpose of seeking vocational rehabilitation (VR) services. Through the use of federal funds, the Division provides such services to eligible persons. Although Blair indicated she received various services in 1984 and 1985, Division records produced at hearing reflect she was not formally enrolled as a client until October, 1986. To be eligible for VR services, a person must (a) have a physical or mental disability, (b) show that the disability is a substantial handicap to employment, and (c) show that VR services would reasonably be expected to render that person fit to engage in a gainful occupation. Once a person is certified as eligible for VR services, an individual written rehabilitation program (IWRP) must be prepared by a counselor and approved by the Division. The IWRP identifies, among other things, the determination and achievement of a vocational goal. The IWRP must be reviewed annually, and it remains in effect until services are terminated or the plan is changed. Services may include counseling, medical treatment and grant funds for training in a marketable skill. Blair was classified as eligible for Division assistance due to both physical and mental disabilities. Her IWRP was reduced to writing on October 12, 1986. The plan called for business and clerical training at United Business Institute (UBI) in Miami from October, 1986 through May, 1987. Funds for the UBI tuition had already been obtained by Blair through a student grant and a federal loan program. Blair's long-term goal was to obtain a marketable skill (typing) which could then be used as an employment tool. The specific VR services to be rendered Blair were counseling by a Division counselor, eyeglasses for her failing eyesight, and payment for medication for gastric ulcers. She was also sent on one occasion to Jackson Memorial Hospital in Miami to be examined by an internist. As it turned out, Blair only stayed at UBI for about three weeks. She left because the school furnished inadequate instruction. After Blair complained to the State Department of Education, UBI gave her a full refund of her money. Blair had the money transferred to Barry College (Barry) in Miami where she enrolled as a student for one semester. She reenrolled at Barry for a second semester (spring of 1987) but was late in filling out her application for a student loan. Even though she did not obtain a loan, Blair remained at Barry for the semester without paying tuition. Barry now wants the money owed for tuition and will not allow Blair to re-enroll until it is paid. Blair accordingly requested that the Division pay for her tuition as a VR service. However, applicable federal regulations, which are binding on the Division, do not allow an IWRP to be altered after the fact or for the Division to pay for services after they are rendered. In other words, the Division cannot authorize payment for an educational service after the student has already enrolled at the college. Since Blair was enrolled in Barry before she requested a modification of her IWRP, the Division is prohibited from reimbursing Blair for her tuition. Besides needing prior authorization for a service, a client must also have a psychological evaluation performed to determine if the client would benefit from a college education. In Blair's case, an after-the-fact evaluation was made on May 4, 1988, presumably to assist the Division in countering Blair's claim. The results of the evaluation were not made a part of the record, and the counselor's testimony as to what it said is inadmissible hearsay. However, after meeting with Blair and reviewing her file, Blair's counselor made a recommendation that Blair would not benefit from a college education. At hearing Blair contended that she had a difficult time arranging an appointment to see a counselor and then having a meaningful session to develop an IWRP. This was probably attributable to the fact that her counselor was carrying a case load of 100 active clients at the time. In any event, an IWRP was prepared and signed on October 12, 1986, and was binding on the client. She also contended that she told the counselor that she was attending Barry University before her plan was prepared. Even if this was true, it was still necessary to obtain approval for tuition payment prior to enrolling at the college. Blair did not do this. Therefore, the agency properly denied her request.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that petitioner's request for modification of her IWRP or approval for college tuition payments be denied. DONE AND ORDERED this 20th day of June, 1988, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 20th day of June, 1988. COPIES FURNISHED: Ms. Louise Blair 652 Northwest 100th Street Miami, Florida 33150 E. Ellen Winslow, Esquire 131 Montgomery Building 2562 Executive Center Circle East Tallahassee, Florida 32399-2152 Hugo Menendez, Secretary Department of Labor and Employment Security 206 Berkeley Building 2590 Executive Center Circle East Tallahassee, Florida 32399-2152 Steve Barron, Esquire General Counsel 131 Montgomery Building 2562 Executive Center Circle East Tallahassee, Florida 32399-2152
Findings Of Fact Based upon the record evidence, the following Findings of Fact are made: Question 7 Question 7 was received into evidence as part of Joint Exhibit 4. Petitioner selected No. 1 as the answer to this question. The vendor who prepared the examination for the Department determined that No. 4 was the correct answer. Because she did not have No. 4 as her answer, Petitioner was not given any credit for Question 7. While No. 4 is a correct answer to Question 7, so is No. 1, the answer selected by Petitioner. Compared to preadolescents, the moral judgments of adolescents are more susceptible to "prestige suggestion," Petitioner should therefore receive credit for her answer to Question 7. Question 30 Question 30 was received into evidence as part of Joint Exhibit 4. Petitioner selected No. 4 as the answer to this question. The vendor determined that No. 3 was the correct answer. Because she did not have No. 3 as her answer, Petitioner was not given any credit for Question 30. Petitioner was properly denied credit for this answer. Of the symptoms/traits listed, the one she selected is not the one most characteristic of chronic drug abuse. Those described in No. 3, as well as in No. 2, are more common. Question 68 Question 68 was received into evidence as part of Joint Exhibit 4. Petitioner selected No. 2 as the answer to this question. The vendor determined that No. 1 was the correct answer. Because she did not have No. 1 as her answer, Petitioner was not given any credit for Question 68. Petitioner was properly denied credit for this answer. Of the choices given, the one selected by Petitioner does not represent the most useful way for a counselor to handle the prejudice referenced in the question stem. A counselor may encounter clients whose morals, customs, and/or behavior arouse prejudice in the counselor, notwithstanding that there are no cultural differences between these clients and the counselor. Accordingly, learning as much as possible about various cultures will not be helpful to the counselor in handling such prejudice. The correct answer to Question 68 is No. 1. Self-awareness on the part of the counselor is essential to effective counseling. It is imperative that a counselor remain objective and not respond to the client on the basis of bias or prejudice. Question 69 Question 69 was received into evidence as part of Joint Exhibit 4. Petitioner selected No. 4 as the answer to this question. The vendor determined that No. 3 was the correct answer. Because she did not have No. 3 as her answer, Petitioner was not given any credit for Question 69. While No. 3 is a correct answer to Question 69, so is No. 4, the answer selected by Petitioner in counseling drug abusers, limit setting, or what is commonly known as "tough love," is generally more effective than approaching the client with sympathy and gentleness. Petitioner should therefore receive credit for her answer to Question 69. Question 85 Question 85 was received into evidence as part of Joint Exhibit 4. Petitioner selected No. 2 as the answer to this question. The vendor determined that No. 3 was the correct answer. Because she did not have No. 3 as her answer, Petitioner was not given any credit for Question 85. Petitioner was properly denied credit for this answer. A counseling session may be effective even though the client is upset upon leaving. The correct answer to Question 85 is No. 3. The mark of a skillful counselor is the ability to recognize the significance of minor or subtle changes in the client's conduct during the counseling session. Question 94 Question 94 was received into evidence as part of Joint Exhibit 4. Petitioner selected No. 4 as the answer to this question. The vendor determined that No. 2 was, the correct answer. Because she did not have No. 2 as her answer, Petitioner was not given any credit for Question 94. While No. 2 is a correct answer to Question 94, so is No. 4, the answer selected by Petitioner. Indeed, No. 4 is essentially the same answer as No. 2. They are simply worded differently. Petitioner should therefore receive credit for her answer to Question Question 99 Question 99 was received into evidence as part of Joint Exhibit 4. Petitioner selected No. 1 as the answer to this question. The vendor determined that No. 3 was the correct answer. Because she did not have No. 3 as answer, Petitioner was not given any credit for Question 99. Petitioner was properly denied credit for this answer. A couple that has been referred to a counselor for sexual problems should not be referred to a physician for medical work-ups before the counselor has met with the couple to find out more about the nature of the couples's difficulties. Accordingly, the correct answer to Question 99 is not No. 1, but No. 3.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board of Clinical Social Work, Marriage and Family Therapy, and Mental Health Counseling sustain Petitioner's challenge to the grading of her answers to Questions 7, 69 and 94 on Part II of the April, 1990, Mental Health Counseling Examination, reject her challenge to the grading of the remaining questions at issue, and modify her score on the examination accordingly. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 22nd day of November, 1991. STUART M. LERNER 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 22nd day of November, 1991. APPENDIX TO RECOMMENDED ORDER IN CASE NO 91-0650 The following are the Hearing Officer's specific rulings on the findings of fact proposed by the parties: Petitioner's Proposed Findings of Fact To the extent that it states that Petitioner's answers to Questions 7, 69 and 94 are correct and that she therefore should receive credit for these answers, this proposed finding has been accepted and incorporated in substance in this Recommended Order. To the extent that it states that her answers to Questions 30, 68, 85 and 99 are correct and that she therefore should receive credit for these answers, this proposed finding has been rejected because it is contrary to the greater weight of the evidence. Rejected because it is not supported by persuasive competent substantial evidence. Respondent's Proposed Findings of Fact 1-17. Accepted and incorporated in substance. 18-19. Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer. Accepted and incorporated in substance. Rejected because it constitutes, not a finding of fact, but a statement of the opposing party's position regarding Question 30. 22-24. Accepted and incorporated in substance. 25-26. Rejected because they are contrary to the greater weight of the evidence. The preponderance of the evidence establishes that the concept of "prestige suggestion" incorporates the notion of peer identity and influence. 27. Rejected because it is irrelevant and immaterial. It matters not why an applicant selected a answer, if that answer is correct. 28-29. Rejected because they are contrary to the greater weight of the evidence. 30-33. Accepted and incorporated in substance. COPIES FURNISHED: Diane M. Kirigin, Esquire 2428 Broadway P.O. Box 9936 Riviera Beach, Florida 33419 Roberta L. Fenner, Esquire Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Diane Orcutt Executive Director Board of Clinical Social Work, Marriage and Family Therapy, and Mental Health Counseling 1940 North Monroe Street Tallahassee, Florida 32399-0792 =================================================================
The Issue Whether or not the Respondent, Department of Health and Rehabilitative Services' cessation of further vocational rehabilitation services to petitioner and its (Respondent's) failure to release certain medical and psychological reports directly to Petitioner, was proper.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received herein, and the entire record compiled in this proceeding, the following relevant facts are found. Petitioner, William W. Englert, Jr., during times material herein, was a recipient of certain vocational and rehabilitative services and other benefits from Respondent, Department of Health and Rehabilitative Services, Office of Vocational Rehabilitation. 1/ By letter dated October 1, 1981, Petitioner was advised by Betty J. Mynatt, District Counselor for Vocational Rehabilitation in Brevard County, that the Office of Vocational Rehabilitation was closing his file as of October 1, 1981, based on his failure to follow the recommendation of the staff in the district office, including the medical and psychological consultants, work evaluators and the V.R. and supervising counselors who recommended that Petitioner pursue intensive psychotherapy. Based on Petitioner's failure to follow that recommendation, he was deemed ineligible to receive further Vocational Rehabilitation services. Two weeks prior, i.e., approximately September 15, 1981, Petitioner was advised by Charles E. May, Vocational Rehabilitation Program Supervisor for District VII, by letter dated September 15, 1981, that the Offices of Vocational Rehabilitation would not release, directly to him, medical and psychological reports contained in his Vocational Rehabilitation file based on his (Petitioner's) refusal to accept the recommendation or follow the advice of those recommendations contained in those reports. Rather, Respondent concluded that such reports should be released, in Petitioner's behalf, to a third party who would offer assistance to him in utilizing such information to his personal benefit. Certain persons were suggested to Petitioner who would be able to lend beneficial assistance to him. (Petitioner's Composite Exhibit No. 1.) Petitioner was observed by Harold F. Bernstein, Ph.D., a clinical psychologist licensed to practice in Brevard County, Florida, on three (3) occasions during early May and June of 1981. Dr. Bernstein, who is in private practice, is on the approved list of psychologists for vendor services to the Offices of Vocational Rehabilitation. He has served as a consultant, using Vocational Rehabilitation purchase of client services funds, since approximately 1973. (Respondent's Exhibit No. 5.) During the first and second sessions, which were held on May 7 and 14, 1981, Petitioner was evaluated and tested by Dr. Bernstein for the purpose of performing a psychological evaluation. During these two (2) sessions, Petitioner was "guarded" and resisted Dr. Bernstein's efforts to test and evaluate him. During the third meeting in June of 1981, Petitioner challenged and disputed Dr. Bernstein's evaluations, findings and ultimate recommendations. To perform the psychological testing of Petitioner, Dr. Bernstein used the Wischler Intelligence Scale for Children, 1952 Revision for Adults (WISC-R) , which in his opinion measured a valid profile of Petitioner. Dr. Bernstein noted six (6) impressions and/or problems as relates to Petitioner. These impressions were that Petitioner suffered from organic brain syndrome, neurological defects, anxiety disorders, paranoia, a social relations disorder and an average intellectual range. Shirlee Wise, a Vocational Evaluator, is Director of the Vocational Rehabilitation Achievement Center (Center) in Brevard County. The Center is a work oriented facility, private, nonprofit. Vocational Rehabilitation has a contract with the Center to provide both work evaluation services and personal adjustment services to selected, eligible clients of the Vocational Rehabilitation Program. Petitioner was referred to the Center and was enrolled in a work evaluation program which permitted Ms. Wise to prepare a final work evaluation report for petitioner. During the course of that program, Petitioner was resistant to the various work sample techniques utilized by the Center and consistently refused to be timed when assigned tasks to complete. Petitioner occasionally left the Center when its staff conducted work sampling tests and during the fifteen (15) work day period involved in the program, Petitioner was present only seven (7) of the fifteen (15) work days. At the conclusion of the program, staffers from the Center prepared a final work evaluation report on Petitioner on August 14, 1981. The report dealt with academics, interests testings, vocational work samplings, behavioral observations, a personal interview and a summary. When the report was prepared, Petitioner, who was present, was given a copy, and an oral explanation of the findings and summaries contained therein. The report concluded that Petitioner, based on observations, work samplings and the recommendations of staffers, should receive intensive psychotherapy. To date, Petitioner has refused to follow this recommendation. During the period in which Petitioner received vocational rehabilitative services, he was given a complete battery of psychological tests and other evaluative materials, including a neurological and orthopedic evaluation; a complete series of neuropsychological evaluations including a CAT scan and a work evaluation assignment at the Center. During the period in which Petitioner was receiving services, he openly criticized the recommendations and findings of the staff of Vocational Rehabilitation and its contract service providers. When petitioner failed to follow the recommendations of the Vocational Rehabilitation staff, he was declared ineligible for further services from the program. The terminal date of his eligibility for benefits and services was September 30, 1981. The staff of Vocational Rehabilitation closed petitioner's eligibility file based on a Code 56, which signifies a "failure to cooperate from applicant status." As stated, Petitioner was advised of this decision to close his file by letter dated October 1, 1981. (Testimony of Betty Mynatt.) Lyle Peddicord, Supervisor and Vocational Rehabilitation Counselor for District VII since 1968 is familiar with Petitioner's Vocational Rehabilitation file. Supervisor Peddicord requested that Dr. Bernstein provide Petitioner with an explanation of his psychological report inasmuch as he felt that a personal explanation might be helpful to him. Supervisor Peddicord followed Petitioner's case history from the outset through the termination of Vocational Rehabilitation benefits. Charles E. May, Program Supervisor for Vocational Rehabilitation in District VII, was familiar with Petitioner and recalled a meeting with him on September 10, 1981. During the meeting with Supervisor May, Petitioner also openly expressed his dissatisfaction with the recommendations and findings of the medical and psychological reports and evaluations and his inability to directly gain access to the medical and psychological information contained in his file. Supervisor May also explained to Petitioner the importance of his need to follow the recommendations of the V.R. staff and the consequences which would result should he elect not to follow the staff recommendations. Supervisor May also explained to petitioner the restrictions that the V.R. program operates under with respect to the direct release of information to a client. Petitioner admits that he was absent from the work evaluation program sponsored by the Center, however, he related that he was not in the best mental state during this period due to his father's illness and the resulting stress as a result of that illness. Petitioner also considered that the two (2) visits which he made to Dr. Bernstein's office were not sufficient, in his opinion, for Dr. Bernstein to recommend intensive psychotherapy sessions. Petitioner also was of the opinion that the refusal of Vocational Rehabilitation to directly permit him access to his file was improper and urges that V.R. be ordered to grant him direct access to his medical and psychological file.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Respondent deny Petitioner direct access to his medical and psychological material contained in its files and terminate further Vocational Rehabilitation services to him. RECOMMENDED this 17th day of February, 1982, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of February, 1982.
Findings Of Fact Neither petitioner, who made no appearance, nor respondent adduced any evidence.
Recommendation It is, accordingly, RECOMMENDED: That respondent deny petitioner's application for licensure. DONE AND ENTERED this 4th day of August, 1987, in Tallahassee, Leon County, 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 4th day of August, 1987. COPIES FURNISHED: Chester G. Senf, Esquire Deputy General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Victoria Renna 6069 #2 Forest View Square Memphis, Tennessee 38115 Ms. Pat Ard Executive Director Board of Landscape Architects 130 North Monroe Street Tallahassee, Florida 32399-0750 Honorable Van B. Poole Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact After surgery on his shoulder, petitioner found it painful to lift sacks of fertilizer and the like at the nursery where he was employed, so he left his job and sought help at respondent's Orlando office. Albert Michael Tester, a counselor in respondent's employ, caused petitioner's shoulder to be evaluated by a physician and arranged for vocational testing. Presented with various vocational options, petitioner chose a two year paralegal training program at Valencia Community College. Beginning April 26, 1977, respondent paid for petitioner's books and tuition and paid petitioner $10.00 weekly toward transportation expenses incurred in getting to and from school. Petitioner's counselor also found a job for petitioner, as a child care worker at the Orange Regional Juvenile Detention Center. Petitioner testified that the $10.00 weekly transportation "maintenance" he had been receiving ceased when he began work. Petitioner held down the job and did well in school until he left both in January of 1978. Petitioner had consulted two physicians before he left off working and quit school in January of 1978. Petitioner testified that one, Dr. Samano, told him he should cut something out; but that the other, Dr., Tew, told him he need not cut out anything. At the time of the hearing, petitioner had not been employed since January 23, 1978. After dropping out of the paralegal program, petitioner suggested to his counselor that respondent set him up in a woodworking shop as a means of vocational rehabilitation. Mr. Tester advised petitioner that, in all likelihood, this request would not be granted. In mid-February, petitioner and a legal services representative met with Charles May, Mr. Tester and other employees of respondent. When informed that the rules did not seem to authorize setting petitioner up in business, petitioner's representative asked that a final determination be postponed pending a medical evaluation of petitioner. Respondent agreed to order a series of diagnostic tests to evaluate petitioner's psychiatric condition and to access the effects of petitioner's essential hypertension. Respondent had been advised as early as August of 1977, that petitioner's shoulder "should not be disabling to any degree or restrict him from activity of choice." Respondent's exhibit No. 7. Petitioner's counselor arranged for petitioner to receive four weeks' "diagnostic maintenance" and suggested he use his spare time to gather information about establishing a woodworking business. By letter dated May 8, 1978, respondent formally notified petitioner that it was "unable to meet [his] request to assist [him] in self- employment." Respondent's exhibit No. 5. On or about June 16, 1978, respondent sponsored petitioner in the photography program in which he was involved at the time of the hearing. This sponsorship has included maintenance payments. At no time before filing the petition in the present case did petitioner request any maintenance benefits. Respondent's "Rehabilitation Services Manual" provides: "Maintenance may only be provided when supportive of other vocational rehabilitation services." Respondent's exhibit No. 9. Respondent's "Vocational Rehabilitation Counselor Manual" provides: "Maintenance will be provided a client only if it is necessary for him to derive full benefits from other services being provided." Respondent's exhibit No. 8. Neither manual has been promulgated as a rule.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent deny petitioner's request for back maintenance payments. DONE and ENTERED this 27th day of March, 1979, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: William R. Barker, Esquire 128 West Central Boulevard Orlando, Florida 32802 Douglas E. Whitney, Esquire Room 912, 400 West Robinson Orlando, Florida 32801
The Issue Whether or not the Petitioner, Bernice Parr, is entitled to be licensed by the Respondent, Department of Health and Rehabilitative Services, to provide foster care for adults.
Findings Of Fact The Petitioner is a resident of Duval County, Florida. The Respondent is a governmental agency of the State of Florida. This cause comes on for consideration based upon the Petitioner's request for a license to provide foster care for adults and denial of that request by the Respondent. At the time prescribed for the hearing, evidence, to include in-hearing testimony, was entertained by the undersigned. When the parties had concluded their presentations, they were advised of the procedures which would be followed subsequent to the hearing. When this explanation was made, the Petitioner indicated to the undersigned that she had changed her mind about her request for licensure, stating that she did not wish to be licensed as requested, nor to be involved with Respondent on the question of providing foster care for adults in the premises adjacent to her residence. This statement by the Petitioner made at the close of the hearing was treated as a motion by the Petitioner for voluntary dismissal and was unopposed by the Respondent's attorney. Therefore, it will be recommended that the action be dismissed pursuant to the voluntary motion. (This action taken by the undersigned was explained to the Petitioner before this outcome.)
Recommendation In consideration of the foregoing, it is RECOMMENDED: That the petition for licensure to provide foster care for adults be DENIED. DONE and ENTERED this 30th day of August, 1978, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mrs. Bernice Parr Robert M. Eisenberg, Esquire 9029 Galveston Avenue Legal Counsel, HRS District IV Jacksonville, Florida 32211 Post Office Box 2417-F Jacksonville, Florida 32231
The Issue The issue is whether Petitioner has just cause to terminate Respondent's employment on grounds alleged in the Civil Service Notice of Disciplinary Action of May 10, 2000.
Findings Of Fact At all times material to this proceeding, Petitioner employed Respondent in Petitioner's maintenance department as a Carpenter I. Respondent was a non-probationary educational support employee as defined in Section 1012.40, Florida Statutes (2003), which is substantially similar to Section 231.3605, Florida Statutes (2001), and its predecessors. In October 1995, Respondent's fishing boat collided with a commercial barge. As a result of the accident, Respondent's father and uncle were killed and Respondent's son suffered serious bodily injury. Respondent had a history of poor attendance at work. Sometime prior to October 1998, Respondent's supervisor counseled him and recommended discipline due to unexcused and excessive absences from work. Respondent was arrested in October 1998 as the result of the boating accident. Respondent initially was charged with one count each of vessel homicide, culpable negligence, and boating under the influence (BUI) severe bodily injury, and two counts of manslaughter. On April 28, 2000, a jury found Respondent guilty as charged. It is undisputed that Respondent was absent from work without authorization or approved leave from April 17, 2000 through May 17, 2000. Petitioner terminated his employment effective May 17, 2000. Respondent was sentenced on August 22, 2000, for the following offenses: causing serious bodily injury to another, culpable negligence in the death of another, vessel homicide, and two counts of BUI manslaughter. On appeal, some of Respondent's felony convictions were discharged. However, the Court affirmed Respondent's BUI manslaughter convictions. See Ronald R. Cardenas, Jr. v. State of Florida, 816 So. 2d 724 (Fla. 1st DCA 2002). The court in Ronald R. Cardenas, Jr. v. State of Florida, 816 So. 2d 724 (Fla. 1st DCA 2002), certified a question of great public importance involving a jury instruction to the Florida Supreme Court. See Ronald R. Cardenas, Jr. v. State of Florida, Case No. SC02-1264, Rev.gr. 832 So. 2d 103 (Table) (Fla. November 19, 2002). At the time of the hearing, the Florida Supreme Court continued to have jurisdiction over Respondent's criminal case. Therefore, Respondent's convictions for BUI manslaughter remain in effect. Petitioner's Rule 2.24 provides that personnel absent from work without approved leave shall forfeit compensation and be subject to discipline, including termination. Unavailability for work due to incarceration does not constitute a basis for approved leave and is an unauthorized absence.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order terminating Respondent's employment. DONE AND ENTERED this 2nd day of March, 2004, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 2nd day of March, 2004. COPIES FURNISHED: Ron Cardenas Department of Corrections No. 202263 Reception and Medical Center Post Office Box 628 Lake Butler, Florida 32054 Joseph L. Hammons, Esquire Hammons, Longoria & Whittaker, P.A. 17 West Cervantes Street Pensacola, Florida 32501-3125 Jim Paul, Superintendent Escambia County School Board 215 West Garden Street Pensacola, Florida 32502 Honorable Jim Horne Commissioner of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 323299-0400 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street, Room 1244 Tallahassee, Florida 32399-0400
Findings Of Fact On January 27, 1989, Gloria Suarez Mujica, Petitioner, applied for examination to be licensed as an occupational therapist by the Board of Medical Examiners, Occupational Therapy Council, Respondent. By Order dated August 16, 1989, the Occupational Therapy Council denied her request. The Board of Medical Examiners has delegated the authority to certify applicants for examination to the Occupational Therapy Council. The rulemaking authority for the policy and procedures concerning occupational therapy rests with the Board of Medical Examiners after review and recommendation by the Council. On March 23, 1980, Ms. Mujica received an Associate in Science degree from Fiorello H. LaGuardia Community College of the City University of New York, and on June 20, 1980, the University of the State of New York certified Ms. Mujica as an occupational therapy assistant. while at LaGuardia, Ms. Mujica successfully completed eight months of internship work, three months in pediatrics, three months in fixed disc and two months in psychology. During the internships, Ms. Mujica worked with actual patients and was supervised and evaluated. The internships constitute successful completion of eight months of supervised fieldwork experience. On July 19, 1980 the American Occupational Therapy Association enrolled Ms. Mujica as a certified occupational therapy assistant. Ms. Mujica was licensed by the State of New York as an occupational therapy assistant on June 20, 1980, and, subsequently, has maintained that license in good standing. In 1980, Ms. Mujica moved to Florida. On November 3, 1980, she was employed as an occupational therapy assistant by South Miami Hospital. Since her employment in 1980, Ms. Mujica has worked consistently as an occupational therapy assistant, except for two maternity leaves of three months each. On June 20, 1982, Ms. Mujica was licensed by the State of Florida Board of Medical Examiners as an occupational therapy assistant and currently maintains that license in good standing. An occupational therapist is trained and licensed to perform independently certain functions which an occupational therapist assistant is not so trained or licensed to execute. Some of those functions include examination and assessment of patients. After assessing the patient, the occupational therapist develops a plan or prescription of treatment for the patient, and the occupational therapy assistant implements the plan. However, an occupational therapist assistant is trained about the plans and, under the supervision of an occupational therapist, does implement them, observing the patient and making suggestions during the course of treatment. Currently, the trend is toward more independent activity by an occupational therapist assistant. In other words, rather than providing direct supervision, an occupational therapist operates as a consultant, leaving the occupational therapy assistant to implement the treatment plan. In fact, Ms. Mujica has worked the majority of her career under the later scheme. During the winter of 1989, the staff of the Council reviewed Ms. Mujica's application for licensure as an occupational therapist and made the determination that Ms. Mujica was qualified to sit for the examination for licensure as an occupational therapist. Under the authority delegated to the staff by the Council, the Executive Director of the Council issued a temporary license to practice as an occupational therapist under the supervision of a licensed occupational therapist on March 23, 1989. Ms. Mujica worked as an occupational therapist until she was notified that the Council had rejected her request for certification to sit for the examination. According to the Executive Director, the Council met on June 14, 1989 and voted to deny her request for licensure. By letter dated June 22, 1989, the Executive Director informed the American Occupational Therapy Certification Board, which administers the examination, of the Council's decision. By letter dated July 11, 1989, the American Occupational Therapy Certification Board, Inc. informed Ms. Mujica that the Council had rejected her request to sit for the examination. This letter was received by Ms. Mujica too late. In good faith, she took the examination on a Saturday in July, 1989. The following Tuesday she received the letter. She was unsuccessful on the examination. On August 16, 1989, the Executive Director informed Ms. Mujica of the Council's decision of June 14, 1989 and revoked her temporary license. The Order issued on the same date states, in pertinent part, The Occupational Therapy Council reviewed and considered your application for licensure on June 14, 1989, in Tallahassee, Florida, and has determined that said application be DENIED, stating as grounds therefore; The six months supervised fieldwork experience that you completed was in an occupational therapy assistant program, not in a program approved and authorized to give occupational therapist training. See 468.209(1)(c), Florida Statutes. The application, however, was filed-under section 468.209(2), Florida Statutes. The dispute here does not center on Ms. Mujica's failure to pass the examination, but, instead, on the Council's decision that Ms. Mujica does not possess the requisite supervised fieldwork experience. Under existent law, Ms. Mujica's supervised fieldwork experience does meet the requirements of supervised fieldwork experience for the purposes of the law under which her application was filed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Board of Medical Examiners issue a Final Order stating that Petitioner has met the supervised fieldwork requirement pursuant to subsection 468.209(2), Florida Statutes DONE AND ENTERED in Tallahassee, Leon County, Florida, this 19th day of March, 1990. JANE C. HAYMAN 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 19th day of March, 1990.
