Findings Of Fact The Respondent has been employed as a teacher within the Brevard County School System since 1969. He was employed on the instructional staff at Creel Elementary School during the 1969-70 school year. In 1970, he was transferred to Melbourne High School where he served as a physical education teacher through the 1977-78 school year. At the end of that year, he was involuntarily transferred to University Park Elementary School. He was employed as a physical education instructor at University Park from September, 1978, until March 25, 1981. Respondent's employment with the Brevard County School System was based on a continuing contract. On March 24, 1981, the School Board approved a recommendation of its Superintendent, the Petitioner, that the Respondent's employment be terminated. Respondent requested a formal hearing, and he has been under suspension without pay pending the resolution of this proceeding. From 1969 through the 1978-79 school year, the Respondent received consistently satisfactory evaluations of his job performance. This includes the first year of his employment as a physical education teacher at University Park Elementary School. It was not until the 1979-80 school year, under a new principal at University Park, that the Respondent's performance was evaluated as unsatisfactory. The Respondent's job performance for the 1979-80 school year and for the 1980-81 school year up to the date of his suspension was evaluated as unsatisfactory. Unsatisfactory evaluations of the Respondent's performance for these past two school years accurately reflect the quality of his work. His general job performance was poor, and he was guilty of several specific instances of misconduct. The Respondent was responsible for conducting several one-half hour physical education classes during the course of the school day at University Park. His classes typically had fifty students. The Respondent did not adequately supervise his students. Rather than teaching fundamental skills, and skills which would lead into group activities, the Respondent typically had his classes run a lap, perform exercises, then engage in "free play." The Respondent would only infrequently organize his classes into group sports activities, and he did not properly teach his students skills which would provide a proper background for group sports activities. In administering physical fitness tests, the Respondent did not keep adequate records of his students' performance. This resulted in his students not being able to participate in awards programs, and, for the 1980-81 school year, resulted in his students having to be retested. While other physical education classes would have "free play" for only a portion of one class weekly, the Respondent had a pattern of allowing more "free play" activity than organized activity. This is contrary to the purposes of the physical education program and resulted in a lack of uniformity among the skill level achievement of students at University Park Elementary School. The Respondent did not prepare adequate plans for his classes. Despite constant criticism of the regular weekly plans that he prepared, his plans improved only in isolated instances. Generally, they reflected no effort to plan class activities. Respondent's inadequate plans made it difficult for other physical education teachers to coordinate their schedules with the Respondent's, made evaluation of the Respondent's performance difficult, made it difficult for substitute teachers to take over the Respondent's classes, and contributed to the Respondent's classes being disorganized. The Respondent did not adequately cooperate with other physical education teachers at University Park. On occasion, the disorganization of his classes would impede the orderly conduct of other classes. The Respondent did not adequately supervise his students' use of equipment, and he improperly allowed students access to the equipment room. In several specific instances, the Respondent engaged in conduct that constitutes misconduct. The Respondent struck one of his students, Tuan Luong, in such a manner that the student was hurt and humiliated. The incident was not an intentional effort on the Respondent's part to injure or punish the student. Instead, the Respondent and the student had had a relationship which included feigned roughhousing. Late in April, 1980, after the Respondent and the student had engaged in such activity, the Respondent struck the student in the stomach. It does not appear that the Respondent's intention was other than playful; however, he clearly injured the student more than he intended. The incident caused the student to transfer out of the Respondent's class. On another occasion, the Respondent struck a student, Randy Vernon, with a whistle strap. The striking was severe enough to raise welts on the student's wrist and to cause the student to be sent to the infirmary. It appears that this also developed as the result of playful roughhousing; however, the severity of the injury establishes that it was inappropriate. On the last day of classes at the conclusion of the 1979-80 school year, the Respondent washed his car on school property using school facilities. While the Respondent did not have any specific assignments to perform while he was washing his car, there were record keeping and inventory activities that he could have performed. Furthermore, he was on duty, not free to engage in activities for his own benefit, and the use of school facilities for his private purposes was inappropriate. On one occasion, the Respondent used two sixth grade students to assist him in straightening out the physical education office. At his request, and with the permission of their teacher, the students stayed beyond their recess class to assist him. It was contrary to school policy to use students in this manner without first obtaining permission from the administration. The Respondent failed to obtain such permission. During December, 1980, there was a new student in one of the Respondent's first grade physical education classes. The student had not had physical education classes before, and he became upset during the class for reasons that do not reflect upon the Respondent. The student ran away from the class. Rather than taking immediate steps to find the student and return him to the class, Respondent sent other students to the administrative offices to advise them that the child had run away from the class. The student was later found by a parent off of the school grounds, and he was returned to the school. The Respondent was in a position, if he had taken immediate action, to have intercepted the student and prevented him from leaving the school grounds. The Respondent testified that he was concerned for the continued smooth operation of his classes. This latter concern is commendable; however, under the circumstances that confronted him, the Respondent was in a position of having to act immediately to prevent potential harm to the student. He failed to act as circumstances required. The Respondent would typically have students run laps, or do push-ups as punishment for misbehavior. Such measures are inappropriate, especially in elementary schools, because one of the purposes of the physical education program is to encourage students to engage in physical activities. Using physical activities as punishment runs counter to this goal. The Respondent ceased utilizing laps as punishment when he was so instructed, but continued to utilize push-ups. When advised to stop using push-ups as punishment, he ceased that. Respondent's use of running laps and push-ups as punishment reflects a lack of understanding of the proper role of a physical education program in an elementary school. The Respondent's supervisors, including the Principal and Curriculum Coordinator, made efforts to work with the Respondent in order to improve his job performance. There were periods of time when his performance improved, but generally the quality of his work was inadequate during the entire 1979-80 and 1980-81 school years. The Respondent has been charged with insubordination. It does not appear, however, that the Respondent intentionally disobeyed any instructions. Rather, his performance simply did not measure up to instructions given him. It does appear that when specifically instructed to cease activities such as using laps and push-ups as punishment, the Respondent complied. There was considerable testimony offered with respect to other specific instances of misconduct on the Respondent's part. This testimony has been rejected, and the only instances of misconduct found to have occurred are those set out herein. Much of the testimony as to these other instances was of a hearsay nature, and cannot serve as the basis for a finding of fact. For example, there was testimony that the Respondent struck a first grade student. This testimony came from the student's mother, who heard it from the student. The alleged incident was not observed by any witness who testified, and the Respondent was utterly without an opportunity to cross-examine with respect to it. The Respondent was not totally unpopular as a teacher at University Park Elementary School. He is well liked by many fellow faculty members and students. Students would frequently request the Respondent to join them at class parties, and many of his students missed him and were resentful of his suspension.
The Issue The issue is whether Respondent properly denied Petitioner certification as a Florida firefighter.
Findings Of Fact Petitioner, a resident of Ohio, requested to qualify for the Florida Minimum Standards Equivalence Examination, based on his experience, to become a Florida firefighter. Petitioner's request effectively "challenged" the exam and requested an exemption from attending the Florida Minimum Standards Course. Petitioner could have taken the Florida Minimum Standards Course. If he had taken the course, he may have had an opportunity to review video tapes and other instructional materials which are available but not a required part of the basic curriculum. Instead, Petitioner elected to furnish Respondent with his out-of-state firefighter credentials. Subsequently, Respondent granted Petitioner the requested exemption. Prior to taking the examination, Respondent's staff accurately informed Petitioner about the scope, structure and subject matter of the test during numerous telephone calls. On at least ten occasions, Respondent's staff described the test to Petitioner and told him how to prepare for it. Respondent's staff specifically told Petitioner that he should study the International Fire Service Training Association Manual (IFSTA Manual). As to part one of the practical portion of the exam, Petitioner knew that Respondent would test him on the breathing apparatus, the one and three quarter-inch hose and nozzle operation, and the twenty-four foot ladder evolution. Respondent told Petitioner that he needed to know how to perform all skills set forth in the IFSTA Manual because Respondent randomly selects six different sections of tasks to test on part two of the practical examination. The six skill sections which are picked for part two remain unknown to anyone in advance of the test regardless of whether he is out-of-state or in-state applicants. These skills are chosen by Respondent's Field Representatives in their offices at the Florida State Fire College prior to going to a testing site or for testing at the Florida State Fire College. The two parts of the practical examination are of equal worth. An examinee begins with 100 points and points are deducted for deficiencies throughout the exam. Candidates are required to achieve a score of at least seventy (70) points in order to pass the practical examination. Petitioner took his Minimum Standards Equivalency Practical Examination on April 28, 1997, at the Florida State Fire College in Ocala, Florida. Petitioner's final score on the April 28, 1997, Minimum Standards Equivalency Practical Examination was twenty-five (25) points, which was not a passing score. Candidates are allowed one retest of the Minimum Standards Equivalency Practical Retest if they are not successful on their initial test. Petitioner chose to take the test again on July 28, 1997, at the Florida State Fire College in Ocala, Florida. Respondent's Field Representative administered part one of the Minimum Standards Equivalency Practical Retest to Petitioner. Petitioner did not take part two of the Minimum Standards Equivalency Practical Retest. He chose to quit after realizing that his score on part one was so low that he could not pass the retest as a whole. After deciding not to take part two in the Minimum Standards Equivalency Practical Retest, Petitioner approached Field Representative Bill DePauw to tell him that he was quitting. Petitioner was not attired in the mandatory minimum safety gear, but in civilian clothes. At that time, Mr. DePauw was in the process of testing another examinee. Mr. DePauw told the Petitioner he needed to talk to Larry McCall, Field Representative Supervisor. Petitioner then approached Mr. McCall and informed him that he would not be taking part two of the retest. Mr. McCall asked Petitioner to leave the testing grounds because Petitioner was being loud and disruptive to the applicants testing or waiting to be tested. Further, once an applicant decides not to continue, he is no longer allowed in the testing area. Petitioner informed Mr. McCall, both on the field and in Mr. McCall's office, that the Florida exam and the process were "chicken." Petitioner lost seventy-five (75) points on part one of the Minimum Standards Equivalency Practical Retest. The maximum allowable deduction for part one of fifty (50) points was deducted from Petitioner's part one score. Therefore, Petitioner's final score on the Minimum Standards Equivalency Practical Retest administered on July 28, 1997, was fifty (50) points, which is not a passing score. Applicants are assigned a number during orientation. From that time on, the applicants are referred to only by that number to ensure impartiality. The applicant's name is attached to the number after the exam, sometimes several days later. The examiner makes up a package of exams, numbers the packets, and then circles six (6) skills at random in each packet. No names are applied to the packets and the numbers are not assigned to the examinees until the day of testing. The Field Representatives are required to give an orientation prior to each Minimum Standards Equivalency Examination on the day of the exam. The orientation consists of walking the applicants through each section of part one. The Field Representatives use the same form check-off sheet during each orientation to ensure that each candidate is given the same orientation. The Field Representatives use a scoresheet to grade the applicants which is a guide to simplify the scoring process. The numeric values on the scoresheet are negative points deducted from an applicant's raw score of 100 points. The Field Representatives only make deductions when the applicant does not follow the required procedure for performing the evolution. Petitioner admits that the point deduction is correct for exceeding the required time on the breathing apparatus evolution. Petitioner admits that he had to go back to the loop during the hose and nozzle evolution to fix the kinks in the hose line. Additionally, he took a couple of steps backwards while he was pulling the hose line. Walking backwards occurs when a candidate takes two steps or more backwards, walking in the opposite direction from where he is looking. There are no warnings issued for walking backwards during the certification examination. Petitioner admits that the deduction for exceeding time during the hose and nozzle evolution was correct. The greater weight of the evidence indicates that Petitioner struggled during the ladder evolution. He lacked control of the ladder at all times during the demonstration. All of the deficiencies which Petitioner admits to amount to a total of 35 negative points as the least possible point deduction. That equals a score of 65 without Petitioner even having taken part two. A score of 65 is not a passing score.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Bill Nelson in his capacity as State Fire Marshal enter a Final Order denying Petitioner's request for a Certification of Compliance as a Florida Firefighter. DONE AND ORDERED this 20th day of August, 1998, in Tallahassee, Leon County, Florida. 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 Filed with the Clerk of the Division of Administrative Hearings this 20th day of August, 1998. COPIES FURNISHED: Elenita Gomez, Esquire Division of Legal Services Department of Insurance and Treasurer 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0333 Paul Appleton 13500 Shaker Boulevard, No. 102 Cleveland, Ohio 44120 Bill Nelson, Commissioner Department of Insurance and Treasurer The Capitol, Lower Level 26 Tallahassee, Florida 32399-0300 Daniel Y. Sumner, General Counsel Department of Insurance and Treasurer The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
The Issue Whether Respondent may be terminated for gross insubordination.
Findings Of Fact At all times material to this case, Holley was a kindergarten teacher assigned to Frontier Elementary School. The evidence established, and Holley does not dispute, that at all times material to this case, Holley and Petitioner were parties to a collective bargaining agreement which provided that Petitioner may terminate an employee for gross insubordination, which is defined as a "willful disregard or constant or continuing intentional refusal to obey a direct order, reasonable in nature and give by and with proper authority." At the beginning of the 2002-2003 school year, Holley exhibited behavior which constituted reasonable grounds to question her present ability to perform her job. In such circumstances, the collective bargaining agreement authorizes Petitioner to direct the employee to cooperate in obtaining what is known as a fitness for duty evaluation. The facts supporting the need for such an evaluation were appropriately documented during the first weeks of the school year, and Holley was assigned to her residence with pay on October 24, 2002. Thereafter, on three separate occasions, Holley was directed in writing by Respondent's duly-designated representative, chief personnel officer, Marcia Andrews (Andrews) to report for and to complete the evaluation. The first of Andrews' letters was dated November 18, 2002. It advised Holley that failure to comply with this directive "will be viewed as insubordination." Holley went to the fitness evaluation which had been scheduled for her at a reasonable time upon reasonable notice. However, Holley refused to fully cooperate with the examiner, rendering it impossible for the examination to be completed. Andrews sent Holley a second letter, dated December 13, 2002. In this letter, Andrews reprimanded Holley for insubordination, and again directed her to cooperate in a fitness for duty evaluation. Again Holley did not comply. By letter dated March 20, 2003, Andrews advised Holley that she would be given "one last opportunity" to fully cooperate and complete a fitness for duty evaluation. Again, Holley was advised that her failure to cooperate would be deemed insubordination and "will result in a recommendation to the School Board for your termination." The aforementioned correspondence was punctuated by at least a half dozen conversations between Holley and Andrews in which Andrews implored Holley to cooperate with the evaluation. Andrews maintained Holley on the payroll long past the time it would have been justified to terminate Holley for insubordination. Throughout the period of time she was assigned to home and again at the final hearing, Holley attempted to defend her failure to complete the fitness evaluation by leveling accusations of discriminatory and in some cases criminal behavior against various individuals employed by or otherwise affiliated with Petitioner. At least one of Holley's accusations of wrongdoing was made for the first time at her deposition, which was taken shortly before the final hearing in this matter. At all times material to this case, Respondent's staff acted in good faith in giving Holley unlimited opportunity to corroborate her charges. She received a similar opportunity in these proceedings. Holley made no effort to corroborate her charges. Instead, the record provides clear and convincing evidence that Holley was, in fact, grossly insubordinate. For months she disregarded, with no legitimate cause, a direct and entirely reasonable order to complete a fitness for duty examination. There is no evidence to suggest that Holley was treated any differently than any other teacher or employee would be treated in similar circumstances.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board issue a final order terminating Respondent's employment. DONE AND ENTERED this 31st day of December, 2003, in Tallahassee, Leon County, Florida. S FLORENCE SNYDER RIVAS 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 31st day of December, 2003. COPIES FURNISHED: Jean Marie Nelson, Esquire Palm Beach County School Board 3318 Forest Hill Boulevard, Suite C-302 West Palm Beach, Florida 33406 Alana Holley 2381 Southeast Federal Highway, Suite 6 Stuart, Florida 34994 Dr. Arthur C. Johnson, Superintendent Palm Beach County School Board 3318 Forest Hill Boulevard, Suite C-316 West Palm Beach, Florida 33406 Honorable Jim Horne Commissioner of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel Department of Education 1244 Turlington Building 315 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue in the case is whether Terry Buckely (Petitioner) should be granted a variance or waiver pursuant to Section 120.542, Florida Statutes (2007), from the provisions of Florida Administrative Code Rule 64B17-3.003 which limits the number of times a candidate for licensure as a physical therapist can take a national examination. The cited rule implements Section 486.051, Florida Statutes (2007).
Findings Of Fact The Petitioner is an applicant for licensure by endorsement as a physical therapist. The Petitioner graduated in 1994 with a Bachelor's of Science degree from Youngstown State University in Youngstown, Ohio, with a 3.7 grade point average (GPA) on a 4.0 scale. After receiving the bachelor's degree, the Petitioner attended Edison Community College in Fort Myers, Florida, and completed several courses including two in chemistry and two in physics with a GPA of 3.2 on a 4.0 scale. The Petitioner next graduated in 2003 with a master's degree in physical therapy from Florida Gulf Coast University in Fort Myers, Florida, with a GPA of 3.3 on a 4.0 scale. The Petitioner completed his college education without the provision of any special services or accommodations related to any disability or disorder. After receiving the master's degree, the Petitioner sought licensure in Florida as a physical therapist and was approved to sit for the national examination. In August 2003, December 2003, April 2004, and July 2004, the Petitioner took the national examination in Florida and failed on each of the four attempts. The Petitioner subsequently obtained the services of Dr. Stephen P. Schengber, a licensed psychologist and clinical neuropsychologist, whose neuropsychological evaluation was admitted into evidence without objection. Dr. Schengber apparently administered a battery of tests to the Petitioner and, in relevant part, rendered a written report which included the following summary and recommendation: Overall, the current test results are consistent with a mild visual attentional disorder, as well as a severe disorder of reading comprehension. There were also some scattered areas of neuropsychological dysfunction, but the results were quite consistent with the two main areas of dysfunction. In addition, the test results were consistent with a mild dysthymic condition. Due to the patient's history, as well as the current results of the neuropsychological evaluation, it is my professional and clinical opinion that Mr. Buckley should be entitled to special accommodations in the administration of his licensure exam to become a licensed physical therapist. These accommodations should include the opportunity to retake the past four failures on the licensure examination, as well as the provision of extra time to complete the exam. Apparently based on Dr. Schengber's recommendation, the Petitioner took the June 2005 national examination in Florida and was provided with time and a half to complete the exam, but failed on his fifth attempt. The Petitioner subsequently applied to take the national examination in Michigan, which did not impose any limitation on the number of times an applicant could sit for the examination. The Petitioner took the October 2005 examination in Michigan and was provided with time and a half to complete the exam, but failed on this sixth attempt. After failing to pass the national exam in Michigan, the Petitioner applied to take the national examination in Colorado, which also imposed no limitation on the number of times an applicant could sit for the examination. The Petitioner took the May 2006 examination in Colorado and was provided with time and a half to complete the exam, but failed on this seventh attempt. In August 2006, the Petitioner sat for the national exam in Colorado, was provided with time and a half to complete the exam, and passed the test on the eighth attempt. After passing the examination, the Petitioner obtained licensure in Colorado, but has never practiced physical therapy in Colorado; and, shortly after becoming licensed in Colorado, the Petitioner applied for Florida licensure by endorsement. At the hearing, the Respondent presented the testimony of Zohre Bahraymi, Ph.D., accepted as an expert in examination development and testing. Dr. Bahraymi testified that the first score received on an examination is an accurate reflection of an applicant's entry level knowledge of the material being tested, but that "since they might have had a bad day and something happens and they did get a lower score . . . it is fair to let them retake the test once or twice." Dr. Bahraymi stated that the more often a person takes an examination, the higher a score should be as an applicant's exposure to the content of the test increased. Dr. Bahraymi also testified that a person with a disability would be able to receive an accommodation, including additional time, and that she would anticipate scores to increase in the event that a person with previous exposure to the content of the test also received additional time to complete the examination. The Petitioner's test scores increased on each but the fourth attempt at the examination. No evidence was offered contrary to Dr. Bahraymi's testimony, and it is credited.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent enter a final order denying the Petitioner's request for variance from, or waiver of, the provisions of Florida Administrative Code Rule 64B17-3.003. DONE AND ENTERED this 16th day of January, 2008, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 16th day of January, 2008. COPIES FURNISHED: Patrick E. Geraghty, Esquire Geraghty Dougherty & Edwards, P.A. Post Office Box 1605 Fort Myers, Florida 33902-1605 Diane L. Guillemette, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Susie K. Love, Executive Director Board of Physical Therapy Practice Department of Health 4052 Bald Cypress Way, Bin C-05 Tallahassee, Florida 32399-1701 Josefina M. Tamayo, General Counsel Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701
The Issue DOAH Case No. 02-0033: Whether Respondent's licensure status should be reduced from standard to conditional. DOAH Case No. 02-1788: Whether Respondent committed the violations alleged in the Administrative Complaint dated March 13, 2002, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: AHCA is the state Agency responsible for licensure and regulation of nursing homes operating in the State of Florida. Chapter 400, Part II, Florida Statutes. Healthpark operates a licensed nursing home at 16131 Roserush Court, Fort Myers, Florida. The standard form used by AHCA to document survey findings, titled "Statement of Deficiencies and Plan of Correction," is commonly referred to as a "2567" form. The individual deficiencies are noted on the form by way of identifying numbers commonly called "Tags." A Tag identifies the applicable regulatory standard that the surveyors believe has been violated and provides a summary of the violation, specific factual allegations that the surveyors believe support the violation, and two ratings which indicate the severity of the deficiency. One of the ratings identified in a Tag is a "scope and severity" rating, which is a letter rating from A to L with A representing the least severe deficiency and L representing the most severe. The second rating is a "class" rating, which is a numerical rating of I, II, or III, with I representing the most severe deficiency and III representing the least severe deficiency. On October 15 through 18, 2001, AHCA conducted an annual licensure and certification survey of Healthpark, to evaluate the facility's compliance with state and federal regulations governing the operation of nursing homes. The survey team alleged three deficiencies during the survey, two of which are at issue in these proceedings. At issue are deficiencies identified as Tag F224 (violation of 42 C.F.R. Section 483.13(c)(1)(i), relating to neglect of residents) and Tag F325 (violation of 42 C.F.R. Section 483.25(i)(l), relating to maintenance of acceptable parameters of nutritional status). Both of the deficiencies alleged in the survey were classified as Class II under the Florida classification system for nursing homes. A class II deficiency is "a deficiency that the agency determines has compromised the resident's ability to maintain or reach his or her highest practicable physical, mental, and psychosocial well-being, as defined by an accurate and comprehensive resident assessment, plan of care, and provision of services." Section 400.23(8)(b), Florida Statutes. Both of the deficiencies alleged in the survey were cited at a federal scope and severity rating of G, meaning that each deficiency was isolated, caused actual harm that is not immediate jeopardy, and did not involve substandard quality of care. Based on the alleged Class II deficiencies in Tags F224 and F325, AHCA imposed a conditional license on Healthpark, effective October 18, 2001. The license expiration date was September 30, 2002. Tag F224 The survey allegedly found violations of 42 C.F.R. Section 483.13(c)(1)(i), which states: Staff treatment of residents. The facility must develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of residents and misappropriation of resident property. The facility must-- (i) Not use verbal, mental, sexual, or physical abuse, corporal punishment, or involuntary seclusion.... In the parlance of the federal Health Care Financing Administration Form 2567 employed by AHCA to report its findings, this requirement is referenced as "Tag F224." The Agency's allegations in this case involved neglect of a resident rather than any form of abusive treatment. The Form 2567 listed two incidents under Tag F224, both involving Resident 10, or "R-10." The surveyor observations read as follows: Based on observations, record review and interviews with a resident and a Certified Nursing Assistant (CNA), the facility failed to provide toileting needs as care planned for 1 (Resident #10) of 8 sampled residents reviewed for incontinence and toileting programs. The resident was not toileted for more than 5 hours causing multiple creased areas and redness to her left groin, perineum and buttocks. The findings include: On 10/15/2001, Resident #10 was in her room, #141, in bed A at 2:20 P.M. Resident stated she was wet. The call bell cord was clipped to the sheet, but the bell mechanism was off the side of the bed, out of the resident's reach. Surveyor walked to the North nurse's station and continued to observe the resident's room entrance. Record review revealed Resident #10's most recent quarterly Minimum Data Set (MDS) completed 8/27/2001, assessed her with bladder incontinence at 3 (frequently incontinent), bowel incontinence at 1 (less than once weekly), activity is assessed as bed mobility 3/3 (needs extensive assistance to move in bed), and toilet use at 3/2 (needs extensive assistance). At 4:15 P.M., the resident requested the surveyor to get someone to change her as no one had come in and the call bell was still out of her reach. The resident's request was given to the nurse at 4:20 P.M. On 10/16/01, Resident #10 was observed in her wheelchair in the hall outside her room from 8:55 A.M. until 12:05 P.M., when she was escorted to the main dining room. At 2:20 P.M., resident was still sitting in her wheelchair. After surveyor intervention, the CNA put the resident to bed at 2:30 P.M. When the adult diaper was removed, it revealed the resident to be incontinent of feces and urine. The odor of urine was very strong in the room. The resident's perineum and buttocks were red and moist, with multiple creased areas. The left groin was especially red. During an interview with the CNA, she stated the resident was last toileted before lunch at approximately 11:00 A.M. This was during the time of direct observation by the surveyor of the resident in the hall outside her room. Review of the resident's Care Plan revealed that she was to have the call bell in place at all times and scheduled toileting. Diane Ashworth was the survey team member who recorded the observation of R-10. Ms. Ashworth was assigned the task of observing R-10, and based her findings on a review of the resident's medical records, observations and interviews. R-10 was a 96-year-old diabetic female who had been admitted to Healthpark on March 28, 2000. R-10's most recent Minimum Data Set ("MDS"), completed on August 27, 2001, indicated that R-10 had short and long-term memory difficulties and moderately impaired decision making as to tasks of daily life. R-10 was generally confused as to place and time. She could make herself understood, and had no difficulty understanding what was said to her. She was easily angered and could be physically abusive to staff. R-10 required extensive assistance to move, dress, toilet, and maintain general hygiene. She was confined to her bed or to a wheelchair, and required assistance to move the wheelchair. R-10's MDS indicated a loss of voluntary movement in her hands, including her wrists and fingers. The MDS indicated that R-10 experienced daily incontinence of the bladder, and bowel incontinence once a week on average. The nurse's notes for R-10 indicated that she was able to make her needs known and that she was encouraged by staff to call for assistance as needed. The care plan for R-10 stated that she should have "scheduled toileting," but set forth no firm schedule. Ms. Ashworth testified that she would have expected R-10 to be toileted before meals, before bed, and upon rising, at a minimum. Mona Joseph was the CNA who attended R-10 on a daily basis. Ms. Joseph testified that R-10, like all residents who wore adult diapers, was scheduled for toileting every two hours and whenever necessary. In practice this meant that Ms. Joseph would inquire as to R-10's need for toileting every two hours. Ms. Joseph testified that R-10 would ask her for toileting at least twice a day, and that she never refused the request. She always toileted R-10 before lunch, and testified that on October 16 she toileted R-10 at about 11 a.m. before taking her to lunch. Toileting R-10 required the use of a Hoyer lift to move the resident from her wheelchair to the bed. Ms. Joseph estimated that the entire process of toileting R-10 took seven to eight minutes. Caroline Nicotra, the supervisor of the long-term care unit in which R-10 resided and Ms. Joseph's supervisor, confirmed that Healthpark's CNAs were trained to make rounds every two hours and ask those residents requiring assistance if they needed to be toileted. R-10 was capable of making that decision, and her wishes regarding her need for toileting would be respected by the CNA. Ms. Ashworth's testimony was generally consistent with her written findings. She met R-10 on the afternoon of October 15. R-10 was lying in bed, and told Ms. Ashworth that she was wet. Ms. Ashworth noted that the call bell cord was clipped to R-10's bed, but that the bell mechanism itself was not within R-10's reach. Ms. Ashworth left the room and took a position at the nurses' station, from which she could see the door to R-10's room. She watched to see if any staff person from Healthpark went into R-10's room. She saw no one enter the room between 2:20 p.m. and 4:15 p.m., at which time she asked a CNA to toilet R-10. Ms. Ashworth returned at 8:55 a.m. on October 16, and observed R-10 sitting in her wheelchair in the hallway outside her room. Ms. Ashworth took up her post at the nurses' station and watched R-10 until 12:05 p.m. At no time in the morning did Ms. Ashworth see R-10 being moved or taken for toileting, though Ms. Joseph testified that she toileted R-10 at about 11 a.m. The evidence established that R-10's room was at the opposite end of a corridor from the nurses' station. The corridor was approximately 200 feet long from the nurses' station to R-10's room. The corridor was busy. Medications were passed at 9:00 a.m., meaning that medication carts went up and down the corridor. Staff carried breakfast trays in and out of rooms. Housekeeping and treatment carts were in the hallway. Given the distance of the nurses' station from R-10's room and the constant activity in the corridor, it is unlikely that Ms. Ashworth's view of R-10 was unobstructed at all times. Moreover, the nurses' station itself was a hub of activity. At the end of the nurses' station where Ms. Ashworth stood was the fax machine. The fax machine was kept constantly busy sending physicians' orders to the pharmacy. The unit secretary was stationed in this location. Nurses passed through this area to retrieve forms from the filing cabinets or to go to the medication room. The likelihood that Ms. Ashworth was unable from her vantage point to view R-10 at all times makes credible Ms. Joseph's testimony that she regularly checked with R-10 to ask whether she required toileting. However, it is unlikely that R-10 was ever out of Ms. Ashworth's sight for the period of seven to eight minutes necessary to actually toilet the resident. Ms. Ashworth's testimony that R-10 was not toileted at 11 a.m. on October 16 is therefore credited. At 12:05 p.m., R-10 was taken to the dining room for lunch. Ms. Ashworth followed and observed R-10 in the dining room. After lunch, R-10 was wheeled back to the outside of her room. Ms. Ashworth observed her from the nurses' station until 2:20 p.m. Ms. Ashworth did not see R-10 being taken for toileting between 12:05 and 2:20 p.m. At 2:30 p.m. on October 16, Ms. Ashworth approached Mona Joseph, the CNA responsible for R-10, and asked her to put R-10 to bed so that Ms. Ashworth could examine her buttocks. Ms. Ashworth asked another AHCA surveyor, Maria Donohue, to accompany her to confirm her observations. There was some delay while Ms. Joseph finished a task for another resident, but eventually Ms. Joseph wheeled R-10 into the room and placed her into bed. Ms. Joseph changed R-10's adult brief in the presence of Ms. Ashworth and Ms. Donohue. Ms. Ashworth testified that there was a strong smell of urine in the room, even before the brief was removed, though she noticed no smell of urine about R- 10 prior to entering the room. When Ms. Joseph removed the adult brief, Ms. Ashworth noted that it was wet and that there was a large amount of feces in the brief and on R-10's buttocks. Ms. Ashworth noted that the skin on R-10's perineum and buttocks was creased and red. The area of R-10's left groin was so red that Ms. Ashworth at first thought there was no skin. Ms. Ashworth stated that this kind of redness is associated with not being toileted as scheduled, though she conceded that such redness can also result from pressure. Ms. Ashworth also conceded that this was her first observation of R-10's buttocks, and thus that she had no baseline to judge how abnormal the redness was at the time Ms. Joseph changed the adult brief. Ms. Donohue also recalled a strong urine smell as soon as they entered the room. She agreed that R-10's buttocks were red in some areas, but recalled no further details. She could not recall if there was feces in the adult brief, but did recall that it was saturated with urine. Mona Joseph, the CNA who changed R-10's adult brief, believed that the urine smell in the room came from the next bed, because she had just changed the adult brief of the person in that bed. Ms. Joseph smelled no odor of urine or feces about R-10. Ms. Joseph testified that R-10's brief was dry, and that she began having a bowel movement while being changed. She noted no redness on R-10's buttocks. Caroline Nicotra was the supervisor of the long-term care unit in which R-10 resided. She knew R-10, and stated that R-10 regularly used her call bell, and would call out for help if she could not reach the call button clipped to her bed. She noted that all of the rooms to which Ms. Joseph was assigned were in the same area of the corridor, so that Ms. Joseph would always be able to hear R-10 call out. There would also be nurses in the area who could hear R-10. Ms. Nicotra knew the surveyors had gone into R-10's room with Ms. Joseph, and she went into the room moments after the surveyors left the room to ascertain whether anything had occurred that she needed to address. Ms. Joseph told Ms. Nicotra what had happened. Ms. Nicotra asked R-10 for permission to examine her body and R-10 assented. Ms. Nicotra removed R-10's adult brief and inspected R-10's buttocks. She observed no creasing or redness of the perineum or the buttocks. R-10's skin was intact and no different than Ms. Nicotra had seen it on other occasions. R-10 told Ms. Nicotra that she was not experiencing pain or discomfort in her buttocks area. Ms. Nicotra stated that R-10 weighed about 180 pounds, and that the creasing and redness observed by the surveyors could have been caused by the pressure of sitting in her wheelchair for a long time. Ms. Nicotra examined the adult brief that had been removed from R-10. She observed that it was slightly damp, which she attributed to sweat, and that it contained a smear of bowel movement. It did not smell strongly of urine. Viewing the evidence in its entirety, and crediting the honesty of the testimony of each witness, it is found that AHCA failed to prove the elements of Tag F224 by a preponderance of the evidence. Ms. Ashworth did not observe R-10 being toileted. However, Ms. Ashworth's observation does not establish that R-10 required toileting or that the facility was negligent in not toileting the resident. After the first meeting on October 15, Ms. Ashworth did not ask R-10 whether she needed to be toileted. Ms. Joseph inquired as to R-10's toileting needs every two hours. R-10 was able to make her needs known to facility staff, and she did so on a daily basis. If her call bell was out of reach, she would call out to staff. Ms. Joseph's testimony that the adult brief was dry of urine and contained only a slight amount of fecal material is supported by that of Ms. Nicotra, the only other witness who actually handled the adult brief, and is therefore credited. The only harm alleged by AHCA was the irritation to R- 10's bottom, claimed to be the result of R-10's sitting in a soiled adult brief for an extended period of time. The surveyors' testimony that R-10's perineum, buttocks, and left groin were creased and red at the time of changing is credited. Also credited, however, is Ms. Nicotra's testimony that R-10's perineum, buttocks and left groin were no longer creased or red a few minutes after the changing. Ms. Nicotra's testimony indicates that the creasing and redness were caused, not by irritation from urine and/or feces in the adult brief, but by an extended period of sitting in her wheelchair. The evidence indicates no neglect of R-10, and that R-10 suffered no harm during the sequence of events described in the Form 2567. II. Tag F325 The survey allegedly found a violation of 42 C.F.R. Section 483.25(i)(1), which states: Nutrition. Based on a resident's comprehensive assessment, the facility must ensure that a resident-- Maintains acceptable parameters of nutritional status, such as body weight and protein levels, unless the resident's clinical condition demonstrates that this is not possible.... This requirement is referenced on Form 2567 as "Tag F325." The survey found one instance in which Healthpark allegedly failed to ensure that a resident maintained acceptable parameters of nutritional status. The surveyor's observation on Form 2567 concerned Resident 17, or "R-17": Based on record review and staff (Unit Manager and Registered Dietician) interviews, the facility failed to adequately assess and revise the care plan to address the significant weight loss of 1 (Resident #17) of 15 from a sample of 21 residents reviewed for nutritional concerns. This is evidenced by: 1) After Resident #17 had a significant weight loss of 6.8% in 4 weeks, the facility did not have an adequate nutritional assessment and did not revise the care plan to prevent the resident from further weight loss. The findings include: 1. Resident #17 was admitted to the facility on 9/6/01 with diagnoses that include Sepsis, S/P Incision and Drainage (I&D) of the Right Knee and GI Bleed. The resident has a history of Coronary Artery Disease (CAD). During the clinical record review, it revealed [sic] that the resident's physician ordered Ancef (antibiotic) 2 grams every 8 hours on 9/6/01, to be given for 25 days. During the review of the resident's initial MDS (Minimum Data Set) completed on 9/19/01, it revealed [sic] he weighed 185 lbs (pounds) and is 72 inches tall. Review of the MDS also revealed the resident is independent with his cognitive skills for daily decision making. Further review of the MDS also revealed he requires set up and supervision during meals. He requires extensive assistance with dressing, bathing, and ambulation. Review of the nutritional assessment revealed the RD assessed the resident on 9/10/01. The assessment stated, "Resident has decreased appetite which may be R/T (related to) current meds (medications); Resident's wife feels he has lost wt (weight) but wt is increased due to edema in feet. Resident's current diet meets assessed needs. Will include food preferences to increase intake." Under "Ethnic/Religious Food Preferences" it stated, "No cultural preferences stated." The nutritional assessment completed by the RD on 9/10/01, stated that the resident weighs 185 lbs. His UBW (usual body weight) is 182 lbs. During an interview with the Unit Manager and Registered Dietician (RD) on 10/18/01 at approximately 11:00 AM, they stated that the resident's weight of 185 lbs., which is documented in the initial MDS, was inaccurate. The resident's accurate weight on admission was 175 lbs. During the review of the weight record, it revealed [sic] the resident remained 175 lbs. on 9/11/01. On 9/18/01, the resident weighed 168 lbs., indicating a weight loss of 7 lbs. in 7 days. During the review of the Resident Assessment Protocol (RAP) completed on 9/19/01, it revealed [sic] she [sic] triggered for "Nutritional Status." The care plan developed on 9/19/01 stated, "Res. (resident) leaves 25% or more of food uneaten at most meals. Weight: 168 lbs; UBW (usual body weight) 182 lbs." The goal stated, "Res will maintain weight up or down within 1-2 lbs. through next quarter: 10/17/01." The following approaches are listed: "Diet as ordered." "Encourage fluids." "Monitor weights." "Food preferences and substitute for uneaten foods." "Assist with tray set-ups, open all packages." Review of the physician's order dated 9/18/01 revealed the resident was started on TwoCal HN (supplements) 60cc's four times a day, ice cream everyday [sic] at 8:00 P.M., fruit everyday [sic] at 10:00 A.M. and peanut butter, cracker, and juice everyday [sic] at 2:00 P.M. During the review of the Medication Administration Record (MAR) for the months of 9/01 and 10/01, it confirmed [sic] that this additional supplements were given to the resident, however there is no documentation to indicate the resident's consumption of each supplement. Interview with the Unit Manager on 10/18/01 at approximately 11:15 A.M. also confirmed there is no documentation in the clinical record to indicate the resident's consumption of each snack. Review of the CNA (Certified Nursing Assistant) Care Plan for the month of 9/01 revealed no documentation being offered at bedtime and no documentation for the month of 10/01 that the resident received bedtime snacks. Further review of the resident's weight record revealed the resident weighed 163 lbs on 10/2/01. This indicates a significant weight loss of 12 lbs or 6.8 percent of his total body weight in 4 weeks. Review of the nurses' notes revealed that this significant weight loss had been identified on 9/26/01, 20 days after the resident's admission to the facility. The nurse's notes dated 9/26/01 stated that the care plan to address the risk for weight loss was reviewed. Review of the care plan confirmed it was reviewed on 9/26/01 and 10/6/01. The goal stated, "Will lose no more weight, 11/6/01." Added to approaches stated, "Nutritional supplements as ordered." However, further review of the clinical record and the care plan revealed no documentation to indicate that a comprehensive nutritional assessment was done. There is no documentation in the resident's clinical record to indicate that the care plan was revised. During an interview with the Unit Manager on 10/18/01 at approximately 2:15 P.M., she confirmed that after the resident's admission to the facility on 9/6/01, the resident was refusing to eat, but his appetite improved in the beginning of 10/01. He was consuming 75 percent-100 percent of his meals. She also stated that the resident had "pedal (foot and ankle) edema" on admission to the facility. There is no documentation in the resident's clinical record to indicate that this edema was monitored. There is no documentation in the clinical record that the resident was on a diuretic. She further stated that the final report on the blood culture done on the resident, dated 10/1/01, was positive for Candida sp (yeast infection). During the review of the clinical record, it did not have [sic] documentation to indicate that an assessment of the resident's protein intake was assessed at this time. There is no documentation in the resident's clinical record to indicate that the resident's albumin and protein levels were assessed. During an interview with the Unit Manager on 10/18/01, at approximately 2:15 P.M., she stated that the resident's family members were encouraged to visit more often and encourage to bring foods that he likes. She stated that the resident liked Italian food. This is in contrary to [sic] the RD's nutritional assessment completed on 9/10/01. She also stated that the facility staff continued to honor resident's food preferences and provided alternatives. There is no documentation in the resident's clinical record to indicate that an assessment of the resident's nutritional status, based on his current weight of 163 lbs. and current food intake was done. Further review of the resident's weight record revealed he weighed 158 lbs. on 10/9/01. This reveals a weight loss of 5 more lbs. in 12 days. During the interview on 10/18/01 at approximately 2:15 P.M., she did not have an explanation why the resident continued to lose weight despite an improvement in his appetite. Maria Donohue was the survey team member who recorded the observation of R-17. This resident was initially assigned to Ms. Ashworth, who briefly assessed R-17 in his room and commenced a review of his medical records. Ms. Ashworth noted R-17's weight loss and that his situation required further investigation. Because Ms. Ashworth was busy with her observations of R-10, the survey team shifted responsibility for R-17 to Ms. Donohue. Ms. Donohue based her findings on a review of the resident's medical records and interviews with Healthpark staff. She did not speak to or observe R-17. She did not interview R-17's physician, and could not recall speaking to R- 17's family. R-17 was an 84-year-old male with a history of coronary artery disease who was admitted to Healthpark from a hospital. About a year and a half before his admission to Healthpark, R-17 had a total knee replacement. He was admitted to the hospital because of a fever. A medical work-up revealed that he was septic, with infection throughout his body. The infection stemmed from his knee, and an incision and drainage was performed. The infection was severe, requiring the parenteral administration of the cephalosporin Ancef for a period of 25 days, beginning September 6, 2001. Anorexia is a known adverse reaction to Ancef. Upon admission to Healthpark, R-17 was experiencing pain that was controlled by Percocet, an analgesic with the potential to affect appetite. R-17 was prescribed Zanaflex, a muscle relaxant that can affect appetite. R-17 was also diagnosed as prone to constipation and took laxatives. R-17 also had swelling in his feet and ankles that caused discomfort when he walked. On September 9, an attending nurse documented edema from his ankles to his feet. On September 10, R-17's physician prescribed T.E.D. hose (compressive stockings) for the edema. R-17 refused to wear them. On the same date, R-17's pain increased and his physician ordered a low-dosage Duragesic patch in addition to his other medications. The dosage was increased on September 12, when his pain became so severe that he was screaming out and having spasms. By September 13, R-17's spasms were abating. On September 14, the pain had lessened and he was able to move about, though he continued to voice complaints about the pain. On September 18, R-17 was weighed and it was noted that he had lost seven pounds in the week since his admission. This weight loss was attributed to his pain and the combination of drugs R- 17 was taking, as well as some subsidence of the edema. Healthpark's nursing staff reported the weight loss to R-17's physician, who ordered the snacks and the TwoCal protein drinks described in Ms. Donohoe's observation. The physician visited on September 24 because R-17's pain level had increased and he was again experiencing constipation. The physician ordered blood cultures and Methotrexate for his pain. The physician was making continued efforts to determine the cause of R-17's pain. After the blood cultures were performed, R-17 was referred to a rheumotologist. The blood cultures revealed the presence of another organism in R-17's system besides that being treated with Ancef. On October 2, R-17 was also seen by an infectious disease specialist. R-17's condition improved for about a week. By October 10, the physician was preparing to order his discharge from Healthpark. However, in the early morning hours of October 11, R-17 became confused, incontinent, and had greatly increased pain. His physician ordered new lab work, including a total protein array and electrolyte tests. The record shows that on October 12, R-17 was screaming out in pain and his appetite, which had shown some improvement in early October, was very poor. Though R-17's condition and appetite showed some improvement over the next few days, on October 16 his physician decided to admit him to a hospital to determine the cause of R-17's weight loss and why his pain could not be controlled. Ms. Donohue explained the protocol followed by AHCA surveyors assessing a resident's nutritional status. First, the surveyor determines whether the resident has been assessed comprehensively, adequately, and accurately. If the assessment found that the resident was at risk for nutritional problems, then the facility must determine the interventions necessary to prevent the problems. The surveyor next assesses how the facility implemented the interventions. If the interventions do not work, the facility must show that it has re-evaluated the interventions and reassessed the resident to determine why the interventions failed. The facility must demonstrate that it has looked at all relevant factors, including intake of food and supplements and the resident's underlying medical condition. This re-evaluation and reassessment should lead to revisions in the interventions. The essential allegation under Tag F325 was that Healthpark failed to make a nutritional reassessment after finding that R-17 experienced a significant weight loss over a period of four weeks. Ms. Donohue's testimony at the hearing essentially confirmed her observation on the Form 2567, quoted above. R-17 was weighed weekly, and his weight record confirmed that between September 11, 2001 and October 9, 2001, R-17's weight dropped from 175 to 158 pounds. Lori Riddle, AHCA's expert in dietetics and nutrition, was also involved in the decision to cite R-17's treatment as a deficiency. Her review of the records led her to conclude that Healthpark was aware of R-17's weight loss and put in place approaches to counter that weight loss, but that these approaches were not well planned. Healthpark did not adequately monitor R-17's nutritional intake, such that the record indicated amount of food that was offered but not how much R-17 actually consumed. Ms. Riddle found that Healthpark's approaches were "fairly generic." Healthpark added snacks and nutritional supplements to R-17's diet, but did not indicate in its written care plan whether or how these would meet R-17's nutritional needs. After the initial nutritional assessment on September 10, Healthpark did not formally reassess R-17's caloric needs, even after he began losing weight. Ms. Riddle saw indications in the record that Healthpark recognized the weight loss and stated a goal of maintaining R-17's weight, but saw no recalculation of how many calories would be needed to maintain his weight. Alexandria Antoni was the registered dietician at Healthpark and an expert in the field of nutrition. Ms. Antoni performed the initial nutritional assessment of R-17 and monitored his status throughout the relevant period. She testified as to her relationship with R-17 and her efforts to maintain his food intake. R-17 was very alert and oriented, but had adjustment problems because he had always been an independent, relatively healthy person and had never been in a facility like Healthpark. As a result, R-17 was not receptive to staff's offering food. He did not want to be in the facility at all and resented being bothered by staff. Ms. Antoni noted that R-17 was in much pain and had a hard time dealing with it. The pain affected his ability to sit up or be mobile, and he was on many medications for his pain and infection, any or all of which could have affected his appetite. On her initial visit, Ms. Antoni brought R-17 a copy of the Healthpark menu and reviewed it with him and his family. Ms. Antoni credibly testified that R-17 stated no ethnic food preferences at this initial meeting, though he did tell her that he liked soup at lunch, prune juice in the morning, and a banana on his breakfast tray. Ms. Antoni's initial strategy was to increase R-17's intake by offering foods he liked to eat. His family was there with him every day, and she encouraged them to bring in foods that R-17 liked. Ms. Antoni saw R-17 daily. He would wait for her in the hallway and ask her to come in and tell him what was on the menu. R-17 would often directly phone the kitchen staff to discuss his meal preferences. Ms. Antoni disagreed that R-17's caloric needs were not properly documented. In her initial nutritional assessment, she calculated his caloric needs, based on his height, weight and medical condition, at 1,900 to 2,300 calories per day. She relied on the nursing admission assessment, which listed R-17's weight at 185 pounds, rather than his accurate weight of 175 pounds. Thus, Ms. Antoni's calculation resulted in R-17's getting more calories than his actual weight would have indicated. In her later approaches to R-17's situation, Ms. Antoni kept in mind that R-17 was already being offered more calories than his weight required. She opined that if R-17 had consumed what she calculated, his nutritional needs would have been met and he should not have lost weight. Ms. Antoni could not say why R-17 was losing weight. For the most part, he was eating 75 percent of his meals, which provided between 1,800 and 2,000 calories per day. The TwoCal supplement and the snacks ordered by the physician provided an additional 1,000 calories per day, providing a total well in excess of the 1,900 to 2,300 calorie range calculated by Ms. Antoni. Healthpark staff, including Ms. Antoni and R-17's physician, held meetings every week to discuss the residents' weight status. At each of these weight meetings, Ms. Antoni brought up the subject of R-17's weight loss with his doctor. Ms. Antoni disagreed with AHCA's conclusion that no reassessment was performed. She contended that reassessment occurred at the weekly weight meetings. She followed R-17's caloric intake daily. She could think of nothing else she could have done to increase R-17's weight. Any further action, such as ordering further laboratory tests or a feeding tube, would have required a physician's order. Carol Morris, an RN, was Medicare clinical coordinator at Healthpark and an expert in geriatric nursing. She concurred that the diet ordered for R-17 was adequate to meet his needs. He was cognitively aware, responsive, and could not be forced to eat. Ms. Morris confirmed that Healthpark staff tried to encourage R-17 to eat. The staff gave nutritional advice to R-17's family members so that they could assist in offering him foods that might help his appetite. Ms. Morris noted that pain can be a factor in weight loss. She also observed that the edema would have added to his weight on admission, and its resolution would naturally cause some weight loss. Resolution of his constipation also could have affected his weight. Healthpark staff considered all these factors in care planning to deal with R-17's weight loss. Staff communicated with R-17's physician and with his family on a daily basis. The nursing staff was following doctor's orders, and expected to see R-17's weight stabilize at some point. Ms. Morris testified that Healthpark's assessment of R-17's weight loss took into account his edema, constipation, adjustment to the facility, disease process, and the amount he was eating. She did not think there was anything else Healthpark could have done, given that R-17's physician was also perplexed as to why he was losing weight. Ms. Morris attributed the AHCA citation for failure to document R-17's caloric intake to a simple failure to understand Healthpark's method of charting. The nurses did not explicitly note the amount eaten by R-17 at every meal or snack. The nurse's initials indicated that R-17 ate 100 percent of the meal or snack. An amount was noted only when R-17 ate less than 100 percent of the food offered. If R-17 declined a meal or snack, it was noted and his physician was informed. Ms. Morris testified that R-17's preference for Italian food came up in a conversation with his family, after the nutritional assessment was done. When Healthpark staff saw that R-17 was losing weight, they to the family about what he might like to eat. Viewing the evidence in its entirety, it is found that AHCA failed to prove the elements of Tag F325 by a preponderance of the evidence. It is unquestioned that R-17 lost a significant amount of weight during the four weeks from September 11, 2001, to October 9, 2001. However, the evidence does not demonstrate that R-17's weight loss was caused by Healthpark's failure to provide adequate nutrition. To the contrary, the record indicates that R-17 was provided more than enough calories through meals to maintain his weight, and that supplements were ordered by his physician when he began to lose weight. While R-17's appetite was diminished, he continued to consume 75 percent of his meals on average and to take the snacks and TwoCal supplement. Healthpark's staff and R-17's physician were perplexed as to the reasons for his weight loss, with the physician ultimately ordering R-17 admitted to a hospital for further testing as to both his persistent pain and his weight loss. AHCA correctly noted that Healthpark failed to perform a nutritional reassessment of R-17, but the evidence indicates that such a reassessment would merely have constituted a written rendition of the actions the facility was taking. Healthpark was fully aware of R-17's weight loss and reacted in a reasonable manner. Staff encouraged R-17 to eat by offering him dietary options and enlisting the aid of his family. AHCA criticized Healthpark for failure to perform follow-up laboratory tests or to consider a feeding tube for R-17. However, only R-17's physician could have ordered laboratory tests or a feeding tube. The record makes it apparent the physician was concerned with the weight loss, but that his primary concern was R-17's multiple infections and his unexplained and intractable pain. R-17's edema subsided during his stay at Healthpark, which could account for some weight loss. His constipation was resolved to some extent, which could also have had some effect on his weight. R-17 was taking multiple medications, including powerful antibiotics and analgesics, that could affect his appetite. R-17 was having emotional difficulty adjusting to the facility and to his physical condition. Finally, R-17 was cognitively alert and within his rights simply to refuse to eat. Aside from the weight loss itself, R-17 showed no indications of a lack of proper nutrition. Healthpark took all these factors into account in its treatment of R-17. A formal nutritional reassessment would have had no substantive effect on R-17's treatment. At most, Healthpark failed adequately to document the steps it took in caring for R-17 and addressing his weight loss.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Agency for Health Care Administration enter a final order dismissing the Administrative Complaint in DOAH Case No. 02-1788, and rescinding the notice of intent to assign conditional licensure status to Healthpark Care Center in Doah Case No. 02-0033 and reinstating the facility's standard licensure status. DONE AND ENTERED this 6th day of September, 2002, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON 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 6th day of September, 2002. COPIES FURNISHED: Lealand McCharen, Agency Clerk Agency for Health care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308 William Roberts, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308 Karen L. Goldsmith, Esquire Goldsmith, Grout & Lewis, P.A. 2180 North Park Avenue, Suite 100 Post Office Box 2011 Winter Park, Florida 32790-2011 Jodie C. Page, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308
The Issue Whether Petitioner has just cause to terminate Respondent’s employment based on the determination by a licensed psychologist that Respondent was not fit to perform his duties as a classroom teacher.
Findings Of Fact At all times material hereto, Petitioner was the constitutional entity authorized to operate, control, and supervise the public schools in Broward County, Florida. Petitioner has continuously employed Respondent since 1998 as a classroom teacher. At the times material to this proceeding, Respondent has held a professional services contract. The School Board has adopted Policy 4004, which provides for mandatory physical and/or psychological examinations for employees, as follows: AT ANY TIME DURING THE COURSE OF EMPLOYMENT WHEN IT SHALL BE DEEMED ADVISABLE BY THE SUPERINTENDENT/DESIGNEE, AN EMPLOYEE MAY BE REQUIRED TO TAKE A PHYSICAL OR PSYCHOLOGICAL EXAMINATION. RULES The Board authorizes the Superintendent to establish procedures to carry out the intent of this policy. The affected employee shall select the name of a medical doctor, psychologist or psychiatrist from a list maintained by the Division of Personnel, Policies, Government and Community Relations. Where the employee is found to be unable to function satisfactorily, the Division of Personnel, Policies, Government and Community Relations shall take appropriate action. At all times relevant to this proceeding, the Superintendent of Schools had in effect the following procedures (Policy 4004 procedures) relating to fitness for duty determinations: Fit for Duty Determination Procedures The Executive Director of Professional Standards & Special Investigative Unit (SIU) receives request from a Principal/Administrator (includes District Administrators) or Superintendent/Designee. SIU notifies employee via certified mail that he/she must undergo a physical and/or psychological examination. A reassignment letter is prepared directing employee to remain at home or at an alternate site with pay, depending on circumstances (i.e. active case file/investigation). The affected employee shall select the name of a medical doctor psychologist or psychiatrist from a list maintained by the Executive Director of Professional Standards & Special Investigative Unit, within 24 hours. SIU Administrator schedules within ten working days a medical appointment and follows-up in writing to the doctor’s office and to the employee of appointment confirmation. Letter is sent to the doctor explaining billing instructions, and ‘Fit for Duty Evaluation’ report of findings. The doctor as delineated in the policy will conduct Pre [sic] evaluation at District expense. Note: a 2nd Opinion will be at the employee’s expense if requested, with the employee selecting from the School Board approved list as delineated in the policy. [Emphasis is in the orginal.] A third evaluation will be mandated if previous two (Pre & 2nd Opinion) are contradicting and will be at District expense and will be binding by [sic] all parties. [Emphasis is in the original.] Doctor determines if employee is ‘Fit for Duty’ or [is] not [fit] for duty. Where the employee is found ‘unfit for duty’ the Executive Director of Professional Standards & Special Investigative Unit shall take appropriate action per the recommendation of the doctor, subjecting employee to a Post-evaluation by the same doctor making the initial evaluation. The Post-evaluation ought to occur within 90 days of the initial evaluation. If a doctor determines that the employee is ‘Unfit for Duty’, an administrative reassignment letter is prepared changing the employee’s pay status to ‘at home without pay (PLV)’. The employee is given information to call the Leave Department to apply for any paid leave accrued, and/or any other leave types per SBBC Policies that they are eligible for. Also, a Formal Referral to EAP is prepared for follow-up. Based on the progress and/or compliance with EAP’s recommendations, a Post Evaluation is scheduled within the 90- day reassessment period. If employee is unfit to return to work in the Post Evaluation, then the employee is recommended for termination (School Board Agenda is prepared for the next Board Meeting). Note: 2nd Opinions on the Post evaluation will be at the employee’s expense, if requested. Third evaluation, if required will be at District expense and will be binding by [sic] all parties. [Emphasis is in the original.] Employee and school/work site are notified of doctor’s fit for duty status via certified mail. (Note: Confidential Doctor’s report will only be distributed to the employee). The immediate supervisor is notified as well. However if the doctor has follow-up recommendations, then a Formal Referral to Employee Assistant Program (EAP) is prepared by SIU (i.e. mental health follow-up or other referrals as appropriate. If employee is found Fit for Duty, a certified letter is sent to the employee with instructions to return to work. The immediate supervisor is notified as well. Respondent was employed as a science teacher at Piper High School (Piper High) from 1999 until September of 2003. After two of Respondent’s students alleged in September 2003 that Respondent had battered them, Petitioner’s Professional Standards and Special Investigative Unit (SIU) conducted an investigation of the alleged incident. Petitioner submitted the results of the investigation to a Probable Cause Committee, which, in March of 2004, found probable cause of battery. A Pre-Disciplinary Hearing was held on June 10, 2004. The Committee recommended that Respondent's employment be terminated. Subsequently, in July of 2004, after his review of Respondent’s case, Dr. Frank Till (the Superintendent of Schools), recommended to the School Board that Respondent be reprimanded and returned to his teaching duties. The School Board followed Dr. Till’s recommendation. Respondent was notified of Petitioner’s action and the fact that he would be returned to the classroom by letter dated July 12, 2004. The letter was signed by Dr. Melita. Respondent responded to the July 12, 2004, letter with a letter to Dr. Melita dated July 15, 2004 (Petitioner’s Exhibit 8). This letter was copied to then President Bush, then Governor Bush, then Commissioner of Education Horne, Dr. Till, members of the School Board, and others. The letter consisted of two paragraphs. The first paragraph, which inexplicably contains a complaint by Respondent that he was being returned to the classroom, is set forth below. The second paragraph is not reproduced here because it pertained to an alleged leak of the SIU report to a newspaper reporter. The entire letter should be read if there is a question as to the context of the statements. Due to the fact that the students deliberately deceived in their irrefutably asinine assertion of battery, because they were failing Mr. Black’s science class, indeed, Mr. Black was wrongfully removed from his teacher position at Piper High School in the first place. It is fiercely urgent that you, Dr. Melita, and the School Board of Broward County, Florida, be aware that the students’ sickening battery hoax, which has been wantonly compounded by the draconian intimidating threat to terminate Mr. Black, has unfortunately caused Mr. Black’s family and himself exceptionally grave pain and suffering. This horrific suffering Mr. Black has been unnecessarily forced to go through since October 3, 2003, has rendered him psychologically, emotionally, physically and professionally harmed. Mr. Black immutably practiced the highest professional and ethical standards in his committed teaching duties at Piper High. Now, it is egregiously unfair to negligently dump Mr. Black back in a teacher position after his character clearly has been irreparably defamed by the mendacious students and the unjust Professional Standards Committee. Respondent’s correspondence caused Dr. Melita to be concerned as to Respondent’s emotional and mental stability. Before the commencement of the next school year (2004- 2005), Petitioner transferred Respondent from Piper High to Boyd Anderson High School (Anderson High). Respondent strenuously objected to the transfer. The decision to transfer him was made by the appropriate area office, based on a determination that his return to Piper High might disrupt the instructional program. Respondent made his objections to the transfer known by writing letters to School Board supervisory level employees, and others. Frances Bolden, the area director, communicated with Respondent about his transfer to Anderson High, and explained that she would meet him at the school to help him get acclimated. On Tuesday, August 10, 2004, Respondent reported to Anderson High. He met with Principal Timothy Gadson and Ms. Bolden twice on that day, with a faculty meeting intervening between the two meetings. Ms. Bolden described Respondent as being very anxious and nervous, despite the fact that it was a planning day before the school year commenced and no students were on campus that day. Following their meetings with Respondent on August 10, 2004, Dr. Gadson and Ms. Bolden referred Mr. Black to SIU based on the following statements he made: He was not comfortable in teaching students; He feared for the safety of the students; He had a condition that prevented him from going in the classroom; He had been out of the classroom since October 2003; and If he were forced to go into the classroom, he would leave Boyd Anderson within one week. He could not teach as he was under a doctor's care through EAP; He could not be at this school; His doctor told him that he could not work with students; and He needed help. Based on these concerns, Dr. Melita required Respondent to submit to a fitness for duty assessment pursuant to Policy 4004. Respondent was provided with a copy of the policy and procedures.1 On August 23, 2004, Respondent selected and met with Dr. Mendoza, who was on the School Board approved list. Dr. Mendoza found that Respondent was not fit for duty at that time. Respondent was formally referred to the Employee Assistance Program (EAP) and advised to follow up with Dr. Mendoza within 90 days. Respondent returned for a follow-up evaluation with Dr. Mendoza on November 10, 2004, after which Dr. Mendoza recommended that he be returned to work "in low stress settings while continuing to receive therapeutic treatment." Respondent was returned to work effective November 22, 2004, but Petitioner transferred Respondent from Anderson High to Rickards Middle School, in an attempt to comply with Dr. Mendoza’s recommendation that he be placed in a low stress setting.2 Prior to December 8, 2004, the Florida Department of Education (DOE) started an investigation into the 2003 incident at Piper High. As a consequence of that investigation, Respondent hired certain college students who, along with Respondent and some others, reenacted Respondent’s version of the events that had led to the charges of battery. Respondent videotaped the reenactment and forwarded a copy of the videotape to the DOE investigator. The DOE investigator became concerned that Respondent may have violated the Principles of Professional Conduct for the Education Profession by using high school students as part of the reenactment. On or before December 8, 2004, the DOE investigator made contact with Respondent. Respondent became distraught after that contact. On December 8, 2004, a school based administrator from Rickards Middle School contacted SIU because of concerns about Respondent. Charles Rawls (a SIU supervisor) and Richard Mijon responded to Rickards Middle School and met with Respondent. Respondent admitted that he was concerned about a possible new investigation by DOE. Respondent stated that he was too upset to be at the school and too upset to be around children and he was sent home for the day. The next day, December 9, 2004, Dr. Melita requested a second fitness for duty assessment pursuant to Policy 4004. Again, Petitioner provided Respondent a copy of the pertinent policy and procedures. Of the School Board approved psychologists, Respondent chose Dr. Forman to provide his initial evaluation. On December 15, 2004, Respondent met with Dr. Forman for the initial evaluation. Dr. Forman prepared a report (Petitioner Exhibit 32) which, together with his testimony at the formal hearing, detailed the manner in which he conducted the evaluation, the tests he administered, the reasons he selected the tests he utilized, the results of the tests, and his interpretation of his results. Dr. Forman found that Respondent was not fit for duty. Respondent was again referred to the EAP and advised to follow up with Dr. Forman within 90 days. Respondent objected to Dr. Forman's initial evaluation because, Respondent alleged, Dr. Forman's behavior was inappropriate, and Respondent asked for a new evaluation. Respondent’s objections were made both orally and in writing. On December 15, 2004, Respondent wrote Mr. Mijon the following letter: As instructed by you I did in fact promptly report to my 1:00 p.m. appointment with [Dr. Forman] for the purpose of submitting to a Fit For Duty Psychological Exam. However, I quickly became extremely uncomfortable with Dr. Forman’s deportment when he began articulating extremely graphic and indecent profanity during his evaluation session with me. Dr. Forman even questioned whether or not racism was a motivating factor in my circumstances for being ordered to take the Fit For Duty Psychological Exam. I specifically told Dr. Forman that I did not feel comfortable with his conversation and kindly asked him to please change the subject. Dr. Forman continued the besetting conversation for a while longer. Considering Dr. Forman’s clearly inappropriate conduct unbecoming a psychologist, I understandably, feel highly uncomfortable entrusting the unwavering integrity and irrefutably unbiased interpretation of my Fit For Duty Psychological Exam results in Dr. Forman’s questionable care. Moreover, my vital employment wherewithal depends on the strict accuracy and reliability of the Fit For Duty Psychological Exam, which Dr. Forman administered with suspect. Naturally, due to the immensely inappropriate conditions in which I was unfairly subjected to take the required Fit For Duty Psychological Exam, which in and of it self [sic] in part of a terribly stressful 400-question test, I am certainly poised to vigorously challenge the exam results. As such, I respectfully request that you immediately abrogate Dr. Forman’s exam results and allow me a fair opportunity to select a professional and competent psychologist to properly administer the Fit For Duty Psychological Exam. Pursuant to the School Board's Policy 4004, Respondent was entitled to seek a second opinion by being evaluated by a separate School Board approved psychologist of his choosing, but at Respondent’s expense. Respondent chose psychologist Steven Shiendling, Ph.D., for the second opinion. Dr. Shiendling met with Respondent on March 14 and 15, 2005. His evaluation consisted of face-to-face interviews lasting a total of 2.5 hours. Dr. Shiendling did not administer any standardized testing in his evaluation. Dr. Shiendling found that Respondent was fit for duty. In accordance with Policy 4004, Dr. Hohnecker was selected to provide the third evaluation of Respondent (with Dr. Forman and Dr. Shiendling having provided the first two evaluations) at Petitioner’s expense. This evaluation occurred April 1, 2005. Dr. Hohnecker’s thorough report (Petitioner’s Exhibit 36) and her testimony at the formal hearing established that Respondent was not fit for duty as of the date of the evaluation "by reason of inappropriate outbursts of anger and intense anxiety." As of April 1, 2005, Respondent was not fit for duty as a classroom teacher. Dr. Hohnecker made recommendations that, if satisfied, would warrant Respondent’s return to work. Dr. Hohnecker further recommended that Respondent not be returned to Piper High School, which Respondent still wanted to do, until the students involved in the September 2003 incident had graduated. Respondent was, again, recommended to the Employee Assistance Program and advised to follow up with Dr. Forman. On April 20, 2005, John P. Molinari, a psychotherapist who worked with Respondent through Petitioner’s EAP, sent the following letter to Michelle Moore of Petitioner’s EAP: I met with Mr. Clinton Black today as part of our ongoing treatment. Mr. Black appears much less anxious with a high degree of motivation to return to work. In view of this, I recommend that Mr. Black return to Dr. Forman to be reevaluated for his fit for duty status. Mr. Mijon advised Respondent to report to Dr. Forman on May 12, 2005, for his reevaluation. Respondent objected to returning to Dr. Forman. On April 28, 2005, Mr. Mijon informed Respondent that he would be guilty of insubordination if he did not keep the appointment with Dr. Forman. Dr. Forman was selected to provide the reevaluation pursuant to the Policy 4004 procedures. Between Dr. Forman’s initial evaluation of Respondent and his reevaluation, Mr. Mijon told Dr. Forman that Respondent had lodged complaints about the manner in which the initial evaluation had been conducted. Mr. Mijon told Dr. Forman that Respondent considered the initial evaluation to have been unprofessional and invalid. Mr. Mijon did not go into the specifics of Respondent’s complaints. Mr. Mijon had also told Dr. Melita about the complaints Respondent had as to Dr. Forman’s initial evaluation. At some undetermined point, Respondent lodged complaints against Dr. Forman with the American Psychological Association (APA) and the Florida Department of Health, Board of Psychology (DOH). On May 4, 2005, Respondent hand delivered the following letter to Mr. Mijon with copies to Dr. Till, Dr. Melita, and Michelle Moore: Due to the egregious harassment and verbal abuse Dr. Bruce Forman wrongfully inflicted upon me during my initial fit for duty session, I respectfully urge you to immediately rescind your intimidating treat [sic] to terminate me should I not report to Dr. Forman, due to my resulting genuine fear and discomfort, for the second appointment you have scheduled for me on May 12, 2005. As I previously formally documented to you, Dr. Joe Melita, Mr. Charles Rawls and Ms. Michelle Moore via letter, I factually suffered excruciating and debilitating harassment and verbal abuse while under the care of Dr. Bruce Forman during my initial fit for duty assessment on December 15, 2004. However, my authentic complaint was apparently inappropriately ignored. Furthermore, due to the fact that I have appropriately filed two investigative complaints against Dr. Forman for the abject harassment and verbal abuse he inflicted upon me during my initial fit for duty exam, it clearly would be overwhelmingly inappropriate for me to return to Dr. Forman for a second fit for duty assessment under these brutal circumstances Dr. Forman has inappropriately forced upon me. Naturally, I feel extremely afraid and uncomfortable returning to Dr. Forman for a second fit for duty assessment under his inappropriate care and thus would be incapable of relaxing and focusing for proper testing as I rightfully deserve and should have the fair and equal opportunity to do so during a valid fit for duty exam. Therefore, I unambiguously urge you to withdraw at once your intimidating treat [sic] to terminate me and cancel your scheduled May 12, 2005 appointment for me with Dr. Forman due to the exceptionally grave harassment and verbal abuse Dr. Forman wrongfully inflicted upon me. Mr. Mijon ordered Respondent to be reevaluated by Dr. Forman because he believed that paragraph 12 of the Policy 4004 procedures provided no other option than to require Respondent to be re-evaluated by the same psychologist (Dr. Forman) who performed the initial evaluation. Dr. Melita interprets paragraph 12 more liberally than Mr. Mijon. Dr. Melita testified beginning at page 47 of Volume I of the Transcript as follows: Q. Were you made aware that Mr. Mijon was sending Mr. Black back to see Dr. Forman for re-evaluation? A. Yes. If I remember correctly, because I asked why, from what I understand it was that Mr. Black said it was okay. Q. Now, did you understand that Mr. Black initially refused to go back to see Dr. Forman? Were you made aware of that? A. Yes. Q. Were you aware that Mr. Mijon then told him that if he did not go back to see Dr. Forman that he would be terminated for insubordination? A. That’s not what I was aware of, because I questioned why he was going back to Forman if there was an issue. According to what I believe to be what Mr. Mijon told me was that that was Mr. Black’s decision. Q. So you think it was Mr. Black’s decision to go back to see Dr. Forman? A. Yes, as odd as I thought it was. Q. So if Mr. Black had, in fact, had some problem with Dr. Forman, from your perspective, he should have gone to see a different doctor other than Dr. Forman, correct? A. Yes. If I remember correctly, my normal process is, Why would he go back to somebody who he has an issue with? Mr. Mijon’s response, if I remember correctly, was that Mr. Black said he had no problems going back to Mr. Forman. That’s the best of recollection. Q. So if Mr. Mijon, in fact, threatened Mr. Black with termination if he refused to go back to see Dr. Forman, that would not be consistent with your view of what should happen? A. That’s absolutely correct. I would not like to see anybody threatened. Dr. Forman was unaware of the complaints Respondent had lodged with the APA or the DOH until after Petitioner took action to terminate Respondent’s employment. Consequently, these complaints had no influence on the report Dr. Forman filed following his May 12, 2005, evaluation of the Respondent.3 Respondent agreed, under protest, to be reevaluated by Dr. Forman, but only on the condition that Dr. Forman would allow him to record the session. Dr. Forman agreed to have the session recorded on the condition that Respondent would provide Petitioner with a copy of the taped session. Respondent agreed to that condition. Respondent recorded the reevaluation session of May 12, 2005. Despite numerous requests, no tape was ever provided. Respondent testified that the tape was destroyed during Hurricane Wilma, which, according to the National Hurricane website, hit South Florida in October 2005. Dr. Forman testified at the hearing as to both the evaluation and the reevaluation. Reports as to his evaluation and his reevaluation were admitted into evidence. Dr. Forman again found that Respondent was not fit for duty on his reevaluation. The undersigned finds Dr. Forman’s testimony to be clear, professional, and persuasive. There was insufficient evidence to establish that the complaints Respondent lodged against Dr. Forman to Mr. Mijon had any bearing on Dr. Forman’s reevaluation. There was also insufficient evidence to establish that Dr. Forman should have been disqualified from providing the reevaluation. Dr. Forman’s Reevaluation Report (Petitioner’s Exhibit 43), provides, in relevant part, a recap of Dr. Forman’s findings as follows: . . . As I expressed to you by phone, Mr. Black appears to have deteriorated emotionally over the past five months and I am concerned that Mr. Black may be acutely psychotic. I can say unequivocally that Mr. Black is not ready to return to the classroom at this time. He was not fit to return to teaching duties the first time I evaluated him and given that his current emotional state is worsened, he is less able to function in an instructional capacity. I also believe an effort should be made to get Mr. Black psychiatric care as I am concerned about his wellbeing. . . . Petitioner established by a preponderance of the evidence that Respondent was not fit for duty as a classroom teacher as of May 12, 2005. On June 10, 2005, Respondent was notified that he would be recommended for termination from employment based on the finding that he was not fit for duty as a teacher. At its June 21, 2005 meeting, the School Board voted to terminate Respondent's employment pursuant to Policy 4004. The action to terminate Respondent’s employment was part of the consent agenda.4 In accordance with paragraph 12 of Policy 4004 procedures, Respondent could have requested a second opinion, following the reevaluation by Dr. Forman. Respondent did not request another evaluation. He no longer trusted the process, and stated that he could not obtain another evaluation for financial reasons. Subsequent to the School Board’s vote in June 2005, Respondent went off of the School Board approved list, looked in the yellow pages, and retained some other therapists, psychologists and/or psychiatrists to perform evaluations. Those subsequent evaluations were not offered into evidence.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that Petitioner enter a final order adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. It is further RECOMMENDED that the final order terminate Respondent’s employment. DONE AND ENTERED this 3rd day of March, 2009, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 3rd day of March, 2009.
