The Issue The issues in this case are whether Respondent committed the alleged violation and, if so, should his Pinellas County Paramedic Certificate be revoked.
Findings Of Fact At all times relevant to this proceeding, Respondent was employed as a paramedic by the City of Clearwater Fire and Rescue Department ("CFRD"). In this capacity, Respondent worked under the auspices of the medical director for Pinellas County EMS. The Pinellas County emergency protocols are written requirements that paramedics must follow when administering emergency treatment to patients. The protocols are published in a document entitled Pinellas County Medical Operations Manual, commonly called the "MOM Protocols," which are approved by the medical director and distributed to all Pinellas County EMS paramedics. Respondent received a copy of the most recent medical operations manual in January 2005. At all times relevant to this proceeding, Respondent and fellow paramedic, Trevor Murray, were members of CFRD Crew "B" shift for Pinellas County, referred to colloquially as "R49B." Mr. Murray was the "lead medic" according to then- current CFRD nomenclature, meaning that he drove the team's vehicle, operated the vehicle's radio, made decisions regarding appropriate medical treatment to be rendered to a patient, and was responsible for all written reports. The evidence conflicted as to whether the lead medic, Mr. Murray, functioned as Respondent's supervisor. CFRD chief, Jamie Geer, testified that the position of lead medic was merely a designation bargained for by the firefighters' union in order to obtain a pay differential for the additional tasks of driving and filing reports and that the position carried no supervisory responsibility. Respondent testified that, whatever the official view espoused by Chief Geer, the common understanding in the firehouse was that the lead medic supervised the paramedic with whom he rode. Respondent conceded that the lead medic and the paramedic are required to follow the same Pinellas County EMS rules and MOM protocols. Nonetheless, given the list of duties entrusted to the lead medic, it was not unreasonable for Respondent to view Mr. Murray as his supervisor. There was no dispute that the Pinellas County OMD recognizes only the designation "paramedic," meaning a paramedic certified by the State of Florida and certified by the Pinellas County OMD. The Pinellas County OMD took no official notice of the CFRD's distinction between lead and non-lead paramedics.1 During the early morning hours of March 26, 2005, Respondent and Mr. Murray were the crew of R49B. At approximately 5:30 a.m., R49B was dispatched in response to a 911 call for emergency medical assistance at 309 South Maywood Avenue. The caller reported that a sexual assault had occurred. The Clearwater Police Department and the Sunstar Ambulance Service were also dispatched to the stated address. The address, 309 South Maywood Avenue, was immediately recognized by Mr. Murray as the residence of a 41-year-old female who had called 911 approximately 15 times over a two-year period for the same type of complaint. The various patient care reports filed by Pinellas County EMS over the course of two years indicated that the woman had an extensive psychiatric history. She claimed to be the victim of a massive government conspiracy that included the FBI, the CIA, and the DEA. She claimed that then-Attorney General John Ashcroft had entered her residence and sexually assaulted her on many occasions. The reports indicated that she was difficult and combative at times with the police and paramedics who responded to her calls. The record indicates that she had accused at least one emergency responder of a sexual assault. By the time R49B received the call from the dispatcher, officers from the Clearwater Police Department were on the way to the address. Mr. Murray told the dispatcher to have the police officers call back if they arrived and discovered that an actual emergency existed. Mr. Murray then placed R49B back on "available" status, meaning that it was free to respond to other calls. The record indicates that R49B was not called back on the morning of March 26, 2005, concerning 309 South Maywood Avenue. Respondent and Mr. Murray manned an Advanced Life Support Unit ("ALS Unit"). MOM Protocol 3.1k provides, in relevant part: An ALS Unit . . . must continue to the scene of every 911 request for service and determine the need for EMS first hand. Once the 911 system is activated for an EMS call, a County Certified Paramedic must investigate it. An EMS response shall not be canceled by the general public or law enforcement. Chief Geer testified that the quoted protocol means that paramedics have no discretion as to whether to respond to a 911 call, unless there is a possibility of violence. MOM Protocol 6.5 may be invoked to provide for "staging" on a call involving possible violence. Staging essentially provides for law enforcement to secure the area before emergency services personnel enter. There was no indication that the woman at 309 South Maywood Avenue posed a threat of violence, though she had been accusatory and otherwise verbally abusive to EMS personnel. As of March 26, 2005, there were no standing orders to stage on calls from 309 South Maywood Avenue. Chief Geer further testified that 15 calls in one day or week might cause the CFRD to label someone a "problem caller" meriting special treatment, but that 15 calls over a two-year period was insufficient. Chief Geer stated that it is not uncommon for Alzheimer's patients, for example, to dial 911 several times in one day. A caller is labeled a "problem caller" and referred to the Clearwater Police Department when there is evidence of maliciousness. Chief Geer noted that all indications were that the caller at 309 South Maywood Avenue believed she needed medical assistance. In such cases, the paramedics do not have the discretion to ignore a 911 call or to wait for the police to let them know whether the emergency is "real." Dr. Laurie Romig, the medical director for Pinellas County EMS, testified that it is imperative for Pinellas County EMS to have the same response for every 911 call. The fact that a certain address is known and notorious among paramedics is not germane. The caller could be another person at the same address or the same person with a different problem. The only way to be sure that a 911 call is a false alarm is to respond to the call. At the hearing, Respondent conceded that he and Mr. Murray should have responded to the call. He made no attempt to minimize the dereliction of duty involved in failing to respond to a 911 call. Respondent's defense was that Mr. Murray, the lead medic, made the decision not to respond to the call. Respondent testified that he objected to Mr. Murray's decision, but that he considered it a direct order from a superior that he must follow. Respondent did not report the incident to superior officers at the time it occurred. After hearing R49B's radio response to the 309 South Maywood Avenue dispatch, the communications supervisor for the Sunstar Ambulance Service notified David Hudak, the Pinellas County medical communications officer, about the incident. Mr. Hudak initiated a quality assurance review ("QAR"), a process designed to assure that Pinellas County EMS personnel have provided quality care and observed the applicable MOM Protocols. Mr. Hudak also informed the Pinellas County OMD's quality assurance manager, David Lock, of the incident and the initiation of the QAR. Mr. Lock took charge of the investigation. On March 28, 2005, Mr. Lock met with Dr. Romig and Jeff Bernard, the executive director of the Pinellas County OMD, and briefed them on the subject of his investigation. Dr. Romig testified that "my jaw dropped" upon hearing what had occurred, because she had never encountered a situation in which paramedics had not responded to a 911 call. Dr. Romig placed Respondent and Mr. Murray on "clinical suspension," pursuant to Pinellas County EMS Rule XIII.E.1.a., pending the outcome of the QAR. A clinical suspension precludes a paramedic from participating in patient care in any capacity. The QAR process consists of an informal, fact-finding process followed by a formal hearing before the medical director. Mr. Lock initiated the informal stage by reviewing the documentary record, including the written incident reports and copies of the patient care records from previous calls to 309 South Maywood Avenue. Mr. Lock confirmed that Respondent and Mr. Murray were properly dispatched to 309 South Maywood Avenue, that neither Respondent nor Mr. Murray notified their superior officer of their failure to respond to the call, and that Respondent and Mr. Murray admitted that their conduct was in violation of MOM Protocols and Pinellas County EMS rules regarding a paramedic's duty to act. The formal investigatory hearing was held on May 3, 2005, before Dr. Romig. At the hearing, Respondent again admitted to violating MOM Protocols. After the hearing, Dr. Romig decided to revoke Respondent's county certification. Dr. Romig testified that her decision hinged on the question of trust. Dr. Romig oversees approximately 750 paramedics and 750 emergency medical technicians, all of whom work under the authority of her medical license. See Section 401.265, Florida Statutes (2005).2 She was not aware of Respondent's existence until this situation arose. Dr Romig testified as follows: t's been said over and over again today about the basic expectation of the public being that when they call, we come. And when I provide the authority for paramedics and EMTs to work under my license, because we're such a big system, I can't get to know each and every one of them intimately in order to establish, you know, a trust level, so I have to grant them trust to begin with. And my problem is, if I can't trust that they follow such a basic tenet as "you call, you go," how can I trust them to make much more complex decisions such as administering medications or doing procedures that could actually harm somebody as much as help them. . . . I don't have any evidence to say that their skills aren't good, but it's their decision making that I have to call into question and whether or not I can trust them to do what I ask them to do. Dr. Romig testified that in the case of an improperly administered medication, she could require training and testing to ensure that the paramedic does not repeat the error. However, Dr. Romig believed there is no way to remediate her basic trust in a paramedic's judgment once it has been broken. Therefore, she concluded that revocation was the only appropriate remedy. Dr. Romig's testimony is credited, and her conclusion was reasonable. Respondent's claim that he was only obeying the instructions of his superior, Mr. Murray, would be more compelling had Respondent taken any subsequent action to bring Mr. Murray's breach of duty to the attention of their superiors. Respondent's silence at the time of the incident indicates acquiescence, if not approval, of the course of action taken by Mr. Murray. Respondent offered evidence sufficient to establish that the resident of 309 South Maywood Avenue was a nuisance caller, if not a "problem caller" under Chief Geer's criteria. However, Respondent's evidence falls far short of demonstrating that he was justified in not responding to the call from that residence on the morning of March 26, 2005. The Pinellas County OMD must ensure that EMS personnel provide quality care and are not a danger to the safety of the county's residents. As the medical director, Dr. Romig is ultimately accountable for the actions of the paramedics operating under her license. Respondent breached the most basic level of his duty as a paramedic: to respond to every 911 call for emergency medical assistance. Given all the circumstances, Dr. Romig had sufficient cause to revoke Respondent's Pinellas County Paramedic Certification.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Pinellas County Emergency Medical Services, Office of the Medical Director, enter a final order finding Respondent guilty of the violations alleged in the Notice of Revocation dated May 10, 2005, and revoking Respondent's Pinellas County Paramedic Certificate. DONE AND ENTERED this 13th day of March, 2006, in Tallahassee, Leon County, Florida. S 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 13th day of March, 2006.
Findings Of Fact David Kelly, certified since 1973 as an emergency medical technician and as an ambulance driver, does business as Franklin Ambulance Service, under contract to the Franklin County Commission. Franklin Ambulance Service held ambulance service license No. 221 from February 2, 1982, through February 1, 1983. An application for renewal of this license, dated January 19, 1983, has been filed with petitioner Department of Health and Rehabilitative Services (HRS). Franklin County itself owns the two ambulances respondent operates. One ambulance had been driven 160,000 miles at the time of hearing; and the other had been driven more than 200,000 miles. They both require maintenance frequently. The ambulances are converted vans with no barrier between the driver and the back of the vehicle. Typically one ambulance is stationed in Apalachicola and the other in Carrabelle. Cases that Weems Memorial Hospital in Apalachicola is not prepared to handle are generally taken to Tallahassee Memorial Regional Medical Center from the eastern part of the county, and to Bay Memorial Regional Medical Center from the western part of the county. TELEPHONE ACCESS When the ambulance based in Apalachicola is not in use or being serviced, Mr. Kelly keeps it at his residence on 26th Street in Apalachicola. He has a telephone in his house. In addition, according to Mr. Kelly: The County has a volunteer phone system. That means that it is answered by volunteers in the community. There is four phones in Apalachicola, four phones in Carrabelle that are manned by volunteers. In the event that someone is not going to be at the phone and a call comes in, a recorder is put on the telephone to tell the people of Carrabelle, if they need an ambulance, to call the ambulance number in Apalachicola, and the recorder in Apalachicola is very rarely put on, but whenever it is put on, it tells them to call the Weems Memorial Hospital, and the Weems Memorial helps them secure an ambulance. (T. II. p. 77). The ambulances maintain direct radio contact with Weems Memorial Hospital when in service. This system has not always worked perfectly. About noon on September 23, 1982, calls were placed to the ambulance telephones in Apalachicola and in Carrabelle, in an effort to secure an ambulance, but to no avail. Both in Carrabelle and in Apalachicola, volunteers sometimes answered the telephone for Franklin Ambulance Service. Debra Johnson, when she had completed her training as an emergency medical technician but before being certified, was such a volunteer in October of 1982. At the time, Nelson Noble worked for Mr. Kelly and had responsibility for ambulance service in Carrabelle and the eastern part of the county generally, as well as being pastor of the Church of God in Apalachicola. On October 9, 1982, Mr. Noble asked Ms. Johnson to answer the telephone while he went to Apalachicola, leaving an oxygen tank, bandages, air splints and instructions to stabilize any patient who needed it, until he could get back from Apalachicola. On Sunday, October 10, 1982, Mr. Noble had the ambulance at his church. He was gone all day and did not return to relieve the volunteer manning the telephone until ten o'clock that night. At about half past noon on October 12, 1982, Mr. Noble asked Ms. Johnson to answer the telephone and to tell callers that the ambulance was on a run to Tallahassee. At 6:30 or 7:00 that evening, Ms. Johnson was told that Mr. Nelson and the ambulance were at Mr. Noble's house in Carrabelle. She called and complained that he had not kept her informed of his whereabouts. On one occasion, the ambulance went to Tallahassee with a patient and did not return for six hours. Mr. Noble "had been shopping, and had bought parts for his truck. . ." T. 1 p. 151. There was no showing that these particular incidents or other specific interruptions of continuous telephone access by the Carrabelle public were brought to Mr. Kelly's attention at the time. There was no showing that the Apalachicola ambulance was inaccessible to the public at any time, except for good reason. DRIVER ATTENDS WHILE EMT DRIVES On June 27, 1982, two cars travelling in opposite directions across Gorrie Bridge collided head on. Archie Brooks Holton, a Franklin County deputy sheriff, was the first law enforcement officer on the scene. He radioed his dispatcher asking that a fire truck and at least one ambulance be sent to the bridge. Twenty or thirty minutes later the Apalachicola ambulance driven by Mr. Kelly arrived. Seated next to him was James Clark Tomlin. After accident victims had been placed in the ambulance, Mr. Kelly drove off, with Mr. Tomlin attending the patient in the rear of the ambulance. En route to the hospital, one of the patients threw up and Mr. Tomlin cleared out vomitus with his fingers, then used a suction device. At all pertinent times, Mr. Tomlin was a certified ambulance driver, but was not certified as an emergency medical technician. Explaining why Mr. Tomlin, rather than he, attended the patient in the back of the ambulance as they left the Gorrie Bridge accident, Mr. Kelly testified: Whenever I started to leave the accident scene, Jim Tomlin told me that he had left his glasses. He did not have his glasses with him, and he is required on his driver's license, to drive with glasses, and he said that he could not see to back off that bridge and pass those cars and turn around without his glasses, that the glare was too much for him. (T. II. p. 68). Another traffic accident, on State Road 67 five miles north of Carrabelle, resulted in another accident victim's being transported by the Apalachicola ambulance on or about August 31, 1982. Again Mr. Kelly drove and Mr. Tomlin rode in back. Whether or not a physician's assistant was also in the back of the ambulance while it travelled to Dr. Sands' office, Mr. Tomlin and the patient were alone in the back of the ambulance while Mr. Kelly drove it from Dr. Sands' Franklin County office to Tallahassee Memorial Regional Medical Center. Mr. Kelly explained: On the way to the ambulance, Jim Tomlin told me that he had gotten nauseated and sick from working. It was a hot night and he said that he was nauseated and sick to his stomach, and he didn't think that he would be able to drive, and I told him that I would drive him on to the doctor's office, and we would see, when we got there, if he thought he'd be able to drive on to Tallahassee. . .Jim, at that time, informed me that he was not able. . .to drive on to Tallahassee, that he still felt too bad. I told him that, since the patient was stabilized, we had the splints on the patient, to watch him and inform me if anything went wrong, and I would drive on to Tallahassee. (T. II. pp. 61-62). According to Messrs. Kelly and Tomlin these two occasions were the only ones on which Mr. Tomlin rode in the back of the ambulance with a patient while Mr. Kelly drove the ambulance. The weight of the evidence was otherwise. At various times, including November 1, 1982, Vicki Lynn Holton, a nurse at Weems Memorial, saw the Apalachicola ambulance arrive at the hospital with Mr. Kelly driving and Mr. Tomlin attending a patient in the back of the ambulance. Dr. Photis Nichols has on several occasions seen the ambulance leave Weems Memorial with Mr. Tomlin attending the patient in the back and Mr. Kelly driving. Some time in 1981 or 1982 Mr. Kelly drove an ambulance to Tallahassee Memorial Regional Medical Center with a mother and newborn infant in the back attended by Mr. Tomlin. On September 3, 1982, an ambulance left St. Teresa with a patient, his wife, and Mr. Tomlin in the back of the ambulance and Mr. Kelly driving. Dora Lee White, PBX operator at Weems Memorial, has seen Mr. Kelly driving an ambulance and Mr. Tomlin in the back attending a patient from time to time over the last three years. Ms. Julia Barber, another PBX operator at Weems Memorial, can see the ambulance arrive and depart from her work station. Over the last three years, Mr. Kelly has almost always driven and Mr. Tomlin has almost always attended the patient in the back of the ambulance, as far as she has observed. A former employee of the ambulance service, Nancy Cone, observed Mr. Kelly driving and Mr. Tomlin attending a patient in the back of the ambulance, on ten or fifteen occasions. The evidence overwhelmingly established that Mr. Kelly routinely drove the ambulance, leaving Mr. Tomlin to take care of patients. Because of the van configuration, the two men could communicate. In a sense, the licensed driver, Mr. Tomlin, was in the presence of a certified emergency medical technician, Mr. Kelly, when he attended patients in the back of the ambulance Mr. Kelly was driving. When Mr. Noble was hired to take charge of ambulance operations in Carrabelle, he was certified as an ambulance driver, but not as an emergency medical technician. (He was nevertheless paid one third again as much as the two emergency medical technicians he replaced earned between them, perhaps because part of his duties was "public relations.") Mr. Noble had been previously certified as an emergency medical technician and was recertified on October 15, 1982. While working for Franklin Ambulance Service, but before his recertification as an emergency medical technician, Mr. Noble drove or rode in the Carrabelle ambulance numerous times when patients were being transported and without a duly certified emergency medical technician on the ambulance. Mr. Noble's testimony that this occurred only once has not been credited. RECORD KEEPING Whenever one of the ambulances makes a trip, an employee of the ambulance service filled out a "REMSMO Ambulance Report" form. Even though Mr. Kelly drove and Mr. Tomlin acted as ambulance attendant, the "run reports" indicated that Mr. Tomlin drove and Mr. Kelly acted as the attendant. False reporting of this kind occurred repeatedly, including the night of the accident on Gorrie Bridge.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner deny respondent's application for licensure, without prejudice to the filing of a new application 90 days after the effective date of the denial. DONE and ENTERED this 15th day of June, 1983, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of June, 1983. COPIES FURNISHED: Steven W. Huss, Esquire Department of Health and Rehabilitative Services 1323 Winewood Boulevard, Suite 406 Tallahassee, Florida 32301 Van P. Russell, Esquire 41 Commerce Street Apalachicola, Florida 32320 David Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue The issues to be resolved in this proceeding concern whether the Respondent, Department of Health and Rehabilitative Services (HRS), acted pursuant to proper legal authority in terminating the Petitioner's certification as an "independent support coordinator" (ISC) under the program known as the Developmental Services Home and Community-Based Services Waiver (Medicaid Waiver Program).
Findings Of Fact The Petitioner was a resident of Havana, Florida, and maintained her office at her home at times pertinent hereto. She has a degree from Florida A&M University and a number of years of occupational experience in developmental and social services. After receiving the required training, she was certified as an ISC under contract with HRS in the Medicaid Waiver Program. HRS is an agency of the State of Florida. It is charged, as pertinent hereto, with administering and regulating the delivery of services to developmentally-disabled persons through the Medicaid Waiver Program, including the contracting with ISC's, such as the Petitioner, who provide such services to developmentally-disabled clients under this program. ISC's are independent contractors who are certified by HRS on an annual basis to provide coordination services for developmentally-disabled clients, which means that they insure that appropriate medical and social services are located, obtained and delivered to such clients. The ISC's have access to HRS computer terminals at their work sites so that they can record the number of time units (quarter hours, etc.) for which they serve clients and the amount of monies due for the services and time units provided to clients. They directly bill HRS for these services, simply by entering the billing information into the HRS medicaid computer system. Thus, great reliance is placed by HRS on the honesty and accuracy of the ISC's billings, subject to HRS' authority to audit billings and obtain recoupment for excessive billing. HRS administers the Medicaid Waiver Program for clients who are qualified for medicaid benefits and properly enrolled. Under this program, they are permitted to live at home or in some other community/residential facility and are provided social services through a network of care providers. This is done pursuant to a "support plan" which is developed and implemented according to the clients' psychological, emotional, medical and social needs. It is the function of an ISC to manage and coordinate the delivery of services to the client. In doing so, the ISC interacts with and communicates with the client's family, social worker, and care providers to determine the appropriate network of services that would best serve him. The ISC assists the client in securing the needed services, sees that those services are properly and satisfactorily delivered and that they conform to the support plan. Each ISC is required to maintain contemporaneous case notes, which reflect the actual date, time and description of all services performed for a client. An integral part of the support plan is the "cost plan" which contains a budget allocated to each client for the purpose of needed services. All services must be provided for in that cost plan. Any services not provided for in the cost plan are not normally permitted, although they may be if an amendment to the cost plan is approved by HRS. Each cost plan contains an allocation of 240 "quarter hours" budgeted annually for the services of an ISC for clients. Each ISC bills time based upon quarter hour increments. Time is billed by the ISC based upon the daily accrual of quarter hours. For instance, if an ISC provides ten minutes of service during a particular day for a given client, the ISC is permitted to bill one quarter hour of time to the client's account. If an ISC provides services at three different times during the same day, for five minutes each time, the daily accrual is one quarter hour. If an ISC provides services at two different times during the day, for ten minutes each time, the daily accrual of time billable is two quarter hours. Every ISC is responsible for billing his or her time and any charges for vendor services directly into the medicaid computer billing system. Each ISC receives a security clearance for access to the client accounts. Persons without a clearance are prevented from entering time or charges to the client account. Only services which have been approved in the support plan may be billed. The ISC's time involved in administrative duties, such as preparing case notes and billing information, undergoing computer training or conducting meetings with supervisors concerning administrative matters and training is not billable to the client's medicaid account. "Double billing" is not permitted. That is to say that different clients may not be billed for services for the same time period. For instance, if an ISC makes a single house call to interview a client and briefly speaks with another client at the same residence during the course of that interview, the ISC is not permitted to bill one quarter hour to each client during the time period involved. Neither is "multiple billing" permitted. That is, different clients may not be billed for a single service, even during different time periods. This would occur, for instance, if an ISC contacts a transportation service vendor to obtain transportation for one client for a quarter hour period and the same vendor for the following quarter hour on behalf of another client and bills a separate quarter hour and the cost of the service also to the second client. In reality, one transportation trip and service was involved with the same vendor during a one-half hour period in this example. Each ISC is required to maintain case notes of all activities performed. No activity may be billed to the Medicaid Waiver Program which is not supported by case notes which show the identify of the client, the date of the service, the time of the service, and the description of the service. Billing without this supporting documentation, contemporaneously recorded, is not permitted. Case notes must reflect truly contemporaneous time and activity. It is not permissible, for instance, to "make up" time spent, but unbilled, for whatever reason, during a prior billing cycle by entering that time hypothetically during a subsequent billing cycle. If such is done, it amounts to falsification of the ISC's case notes, and, of course, it is not appropriate to bill for activities which did not occur. The policy of the Medicaid Waiver Program, as shown by witness Trejo, who helped formulate the policy over the last two and one-half years, and witness Brown, is to promote a client's free and unfettered choice of an ISC. This is done by providing each client with certain information and promotional materials about all of the ISC's available. The ISC is required by HRS to provide HRS with the written materials containing information about that ISC. HRS then insures that these materials are delivered to clients by mail. Each client is provided with a designation form for the written selection of an ISC. HRS undertakes no solicitation or promotion on behalf of particular ISC's and does not try to influence client choices of ISC's. Certification Training ISC's must successfully complete certain training before they are certified and allowed to perform services. They are required to complete 34 hours of Statewide training known as "living everyday lives". They must also complete 24 hours of district-specific training, called simply "ISC training", which covers many topics, including Medicaid Waiver administration, values defining proper roles, planning, plan implementation, resource development, client eligibility, care providers, services provided, billing, client satisfaction, client rights issues, and residential placement. They are also required to be trained in HRS rules and policies concerning the Medicaid Waiver Program, the maintaining of records, relevant law, the documentation of their services, coordination with sub-district contracts, the confidentiality requirements, billing requirements, training in the use of the ABC computer system, and proper invoicing. During the course of the ISC training, the Petitioner was provided with a copy of proposed Rule 10F-13, Florida Administrative Code, and the related policy clarifications of the policy expressed in that rule. That rule, while not yet adopted, constitutes the agency policy for the conduct and administration of the Medicaid Waiver Program, as established by the HRS witnesses, particularly witness Trejo, who was the key person in developing that policy. (See Respondent's Exhibit 36 in evidence). The Petitioner made an application to be certified as an ISC on December 27, 1994. As a part of that application, the Petitioner executed certain "assurances", as part of a medicaid provider agreement. The Petitioner then attended and completed the above-referenced ISC training. In addition, the Petitioner received additional individual training from Ms. Hall and Ms. Brown of HRS, as well as numerous consultations with Ms. Brown concerning various administrative matters and the proper use and operation of the computer record and billing system. The Petitioner was then certified as an ISC for District 2, effective July 1, 1994. That certification lasted until the subject termination on January 4, 1995. During the time of her service as an ISC contractor, the Petitioner provided services to 15 clients, including J.S., M.E., A.W., S.E.Jr., W.M., W.R., G.T., J.R., R.S., H.M., R.M., W.O., M.C., and M.C. In cases where an ISC has deviated from a client's support or cost plan, the ISC is permitted an opportunity to propose a "corrective action plan". The corrective action plan provides a guide for how the ISC can remedy identified problems, within an acceptable time period, concerning the ISC's performance or billing operations. Failure to undertake and satisfy a corrective action plan is a basis for termination under HRS' regularly-followed policy. In the past, ISC's with identified billing problems have undertaken corrective action plans, and as part of those plans, among other requirements, have immediately reimbursed the amounts improperly billed. In one case, an ISC was required to terminate an employee, who was the source of many billing and documentation problems. In one case, an ISC was placed on a conditional, probationary certification status due to billing and documentation problems. Within 90 days after an ISC is certified, each ISC undergoes a monitoring review, in which district developmental services personnel audit the ISC's client records to determine compliance with program requirements. If the review is successful, ISC's are thereafter monitored annually for compliance. Should problems be detected in the initial monitoring review, or otherwise come to the attention of HRS through client or care provider information, additional reviews or audits may be undertaken as necessary to insure that the ISC is in compliance with the Medicaid Waiver Program policy requirements. After the Petitioner was certified, HRS, through Ms. Mary Brown circulated the written promotional materials and information provided to her concerning the services offered by the Petitioner as an ISC, in accordance with HRS policy. Ms. Brown delayed her normal mailing date in order to accommodate the late receipt of the Petitioner's promotional materials. Soon thereafter, Ms. Brown received a complaint from another ISC and calls from certain clients concerning solicitation of clients by the Petitioner, which is contrary to HRS policy. ISC's are not allowed to solicit clients. In order to address the complaint and obviate the effects of any improper solicitation of clients, Ms. Brown accompanied the Petitioner and the complaining ISC to the homes of various clients in order to conduct interviews with them. Ms. Brown provided the clients with designation forms to be completed at that time; and several clients then chose the Petitioner as their ISC. Several clients did not choose the Petitioner. Ms. Brown, however, made no attempt to influence a client concerning which ISC the client chose. Billing and Record Irregularities Beginning in September of 1994, while reviewing certain records concerning the Petitioner's ISC operations, Mr. Trejo, the Management Review Specialist for the District 2 Developmental Services Program Office, in charge of management review of the Medicaid Waiver Program, discovered certain billing irregularities. Particularly, he discovered that the Petitioner had entered excessive billing requests for certain clients. Because of this initial inquiry and the results of it, he decided to conduct a more in-depth audit of the Petitioner's ISC operations, billings, and other records. During the next few weeks, he undertook a complete review of the billing and client records of the Petitioner. Additionally, the customary 90-day monitor review of the Petitioner's client files was conducted on December 6, 1994. Mr. Trejo's review revealed the following problems with the Petitioner's billing and records concerning her clients and their services. These were described in Mr. Trejo's testimony, corroborated by other HRS witnesses. That version of events is accepted as credible and reliable: Alteration of Case Notes to Increase Time Billed. R.Exhs. 6 and 7. Unauthorized Expenditures: Exceeding Cost Plan: ME: 332 quarter hours billed in 3 months; $782 overpayment as of 11/94. R.Exh. 8. JS: 185 quarter hours billed in 2 months; projected budget depletion in one month. R.Exh. 9. JR: 176 quarter hours billed in 3 months; projected budget depletion in 2 months. R.Exh. 10. MC: 131 quarter hours billed in 2 months; projected budget depletion in 3 months. R.Exh. 11. MC: 134 quarter hours billed in 2 months; projected budget depletion in 2 months. R.Exh. 12. RS: 177 quarter hours billed in 3 months; projected budget depletion in 1 month. R.Exh. 13. Non-Billable Services: JS: date 9/10/94; 12 units billed for training. R.Exhs. 31 and 39. c. Double Billing: JS/SR: date 11/01/94. R.Exh. 14. ME/MC: date 11/15/94. R.Exh. 15. ME/WO: date 10/12/94. R.Exh. 16. ME/JS: date 10/19/94. R.Exh. 17. AW/RM: date 10/12/94. R.Exh. 18. AW/HM: date 10/03/94. R.Exh. 19. AW/ME: date 09/14/94. R.Exh. 20. JS/JR: date 09/15/94. R.Exh. 21. d. Undocumented Billing: SR: date 11/1/94; 18 units worked, 30 units billed. R.Exh. 22. JR: date 8/30/94; 5 units worked, 15 units billed. R.Exh. 23. HM: date 9/8/94; 3 units worked, 4 units billed. R.Exh. 24. HM: date 9/28/94; 1 unit worked, 2 units billed. R.Exh. 24. HM: date 9/19/94; 0 units worked, 3 units billed. R.Exh. 25. HM: date 9/28/94; 1 unit worked, 2 units billed. R.Exh. 25. MC: date 10/17/94; 0 units worked, 4 units billed. R.Exh. 26. JR: date 9/17/94; 0 units worked, 3 units billed. R.Exh. 27. MC: date 10/6/94; 0 units worked, 4 units billed. R.Exh. 28. RJ: date 9/30/94; 0 units worked, 3 units billed. R.Exh. 29. RM: date 9/28/94; 1 unit worked, 2 units billed. R.Exh. 30. WO: date 11/6/94; 2 units worked, 3 units billed. R.Exh. 31. Multiple Billing: HM/RM: date 9/30/94. SM/HM: date 10/3/94. HM/HM: date 11/25/94. HM/HM/SM/RM: dates 10/1/94 and 10/2/94. SM: dates 9/14/94 and 10/3/94. SM: dates 9/14/94, 9/15/94 and 9/16/94. R.Exh. 34. Falsification of Case Notes: MC: date 11/2/94; 24 units, including meeting with Lynn Daw that did not occur. R.Exh. 32; Tmny. Daw JR: date 9/2/94; 23 units, including meeting with Arlene Walker that did not occur because Ms. Walker was out of town. R.Exh. 33; Tmny. Walker. Because of the problems found by Mr. Trejo, a meeting was called between the Petitioner and Mr. Trejo and others of HRS to discuss these problems and the need for correction. On December 2, 1994, Mr. Trejo wrote to the Petitioner, confirming the November 22, 1994 meeting, its subject matter and advising her that a corrective action plan concerning the over-expenditure of funds allocated to her clients needed to be submitted no later than December 19, 1994. No formal plan of corrective measures or actions was submitted by the Petitioner, although on December 15, 1994, she submitted a memorandum to Ms. Mary Brown of the District 2 Developmental Services Community Services Office (agency liaison for the Medicaid Waiver Program), concerning the over- expenditures, which simply listed the total amount of support coordination units (quarter hours) that were used to provide support to each client since November 30, 1994 and showed that there were insufficient hours available to transfer from the seven clients which the Petitioner showed as having some possibly transferable quarter hour units left at the time. Therefore, the Petitioner simply requested that additional units be approved. Only one of the four performance and billing problems discussed at the earlier meeting between the Petitioner and Mr. Trejo and other HRS personnel was addressed. (Respondent's Exhibit 4 in evidence, the Petitioner's memorandum of December 15, 1994). The Petitioner merely advised Ms. Brown in that memorandum of the lack of availability of funds within her overall budget to adjust for the over-expenditures already made, which HRS already knew. She did not actually submit a plan for corrective action to alleviate the over-expenditure mode of operation she had engaged in. No plan of action of any sort was proposed to HRS to correct the other billing and documentation problems identified by HRS, through Mr. Trejo. These include the potential conflict-of-interest posed by the Petitioner's son, working as a vendor provider, authorized by the Petitioner as the ISC. This situation includes the problem that Mr. Richardson, her son, was providing services to at least one client which were not authorized as part of that client's services plan (transportation to the movies and other destinations being provided, when dental hygiene training was the service authorized in the support plan). Through the certification process and upon certification, the Petitioner had been provided complete notice of the HRS Medicaid Waiver policy concerning billing and documentation requirements. This was part of the "assurances" on the application form and in the agreement entered into between the Petitioner and HRS. That application, the assurances contained therein, and the provisions of the agreement constituted notice to the Petitioner that failure to comply with the Medicaid Waiver policy embodied in the proposed rule and Policy Clarifications 1-8, as described in detail in Mr. Trejo's testimony, were grounds for termination, as was the fraudulent billing and documentation of records concerning clients. HRS, at no time, treated the Petitioner differently from any other ISC similarly situated, with respect to the Medicaid Waiver Program and policy. In fact, Ms. Brown and Ms. Hall spent a disportionate amount of time instructing and attempting to assist and support the Petitioner in the performance of her services, in proper record-keeping and computer billing methods. In view of the Petitioner's failure to conform to the policies described above, in terms of the billing and documentation violations referenced in the above Findings of Fact, and her failure to propose a meaningful plan of corrective action with regard thereto, HRS terminated her certification as an ISC on or about January 4, 1995.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is RECOMMENDED that a Final Order be entered by the Department of Health and Rehabilitative Services revoking the certification of Brenda J. Ogden as an Independent Support Coordinator, effective January 4, 1995. DONE AND ENTERED this 23rd day of January, 1996, in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of January, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-1284 Petitioner's Proposed Findings of Fact 1-4. Accepted. 5. Accepted, but not itself materially dispositive of the issues presented. 6-10. Accepted. Accepted, but immaterial. Accepted. Rejected, as contrary to the greater weight of the competent, credible testimony and evidence. Accepted, in a general sense, but not materially dispositive. These reasons were not the reasons for the Petitioner's violations of policies and her agreement. Rejected, as contrary to the weight of the evidence based upon the Hearing Officer's determinations of the candor and credibility of witnesses. Even though the Petitioner had some difficulties learning to use the relevant computer system, these were not shown to be the reasons for the improprieties in billing and record-keeping. Accepted. Accepted, except as to the date, but not materially dispositive. Accepted, but not materially dispositive. The referenced date should be November 22, 1994. Accepted. 20-21. Accepted, but not materially dispositive. Accepted, only in terms of the dates she made the written response referenced. It is not found to be a detailed plan of corrective action/support coordination, and this context of the proposed finding is rejected as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted, but not itself materially dispositive. Accepted, but not materially dispositive, and subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted, but not materially dispositive, and subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as constituting a conclusion of law and not a proposed finding of fact and as legally incorrect. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter and as not materially dispositive. Even if she never altered client records, that does not obviate the violations found. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted, but not itself materially dispositive. Accepted, in part, but only as to the date the formal written notification of the overpayment was accorded the Petitioner. She had earlier been informed verbally of the problem. Even if she were terminated 28 days instead of 30 days after notification of the overpayment, the Petitioner never before then or since has made any effort of record in this proceeding to make reimbursement for the overpayments. The other reasons referenced and found above are adequate cause for termination, in any event. 31-32. Rejected, as immaterial. The other ISC's referenced in these proposed findings of fact were in different circumstances and differently situated in terms of overpayment/overbilling problems involved (for instance, repayments were made). 33. Rejected, as not in accord with the competent, credible evidence. The fact was that Mr. Sutton determined that there was insufficient evidence to go forward with prosecution in his opinion; however, the matter was referred to the Office of the State Attorney, who, in fact, elected not to institute prosecution for unknown, discretionary reasons. 34-35. Accepted, but immaterial. Respondent's Proposed Findings of Fact 1-28. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter. COPIES FURNISHED: Anthony L. Bajoczky, Esquire Scott A. Snavely, Esquire BAJOCZKY & FOURNIER 125 North Franklin Boulevard Tallahassee, FL 32301 Tommy E. Roberts, Jr., Esquire Charles A. Finkel, Esquire Department of Health and Rehabilitative Services 2639 North Monroe Street, Suite 252-A Tallahassee, FL 32399-2949 Robert L. Powell, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Kim Tucker General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
The Issue Whether the Respondent's paramedic license should be disciplined based upon alleged violations of Sections 401.411(1)(a) and (k), Florida Statutes.
Findings Of Fact Petitioner, HRS, Office of Emergency Medical Services (EMS), is the state agency which certifies and disciplines emergency medical technicians (EMTs) and paramedics in Florida pursuant to Chapter 401, Florida Statutes (F.S.) and Chapter 10D-66, Florida Administrative Code (F.A.C.). Respondent, Joseph L. Riggall, was initially certified as a paramedic in Florida under Section 401.27 and Rule 10D-66.057, F.A.C., in 1990, and was last recertified by EMS for the biennial period December 1, 1992 through December 1, 1994 pursuant to an application he submitted to the department through its agent on October 25, 1992. Respondent Riggall has not filed for recertification as a paramedic in Florida subsequent to the automatic expiration of his certification on December 1, 1994. A paramedic is a medical paraprofessional authorized under Florida law and administrative rules to administer advanced life support treatment with respect to life-threatening medical emergencies. Florida law defines advanced life support to include the use of techniques such as endotracheal intubation, the administration of drugs or intravenous fluids, telemetry, cardiac monitoring and cardiac defibrillation. A paramedic is authorized to perform invasive techniques in order to help save lives threatened by medical emergencies or severe injuries. As a paramedic, Respondent has a responsibility to the public, HRS-EMS and his employer, Polk County Emergency Medical Services, to perform his patient care duties without being impaired by alcohol, habit forming drugs or controlled substances. Respondent was employed by Polk County Emergency Medical Services for a period of time, including March 1994. Respondent was arrested on March 14 1994 in Polk County, Florida, on charges of prescription forgery to obtain controlled substances. HRS-EMS began an investigation of Respondent on March 23, 1994 based upon a complaint. In early March, 1994, Respondent reported to his shift supervisor that on March 11, 1994, while he was on duty as a paramedic, all of the controlled substances (morphine and Valium) had been stolen and were missing from his ambulance stationed at Fort Meade, Polk County, Florida. Respondent's supervisor immediately requested that Respondent submit to a drug test at Polk General Hospital. Respondent complied. Respondent was drug tested at approximately 12:45 a.m., March 12, 1994 at Polk General Hospital. The results of the tests taken at Polk General Hospital, and submitted to Metpath Laboratory for testing on samples from Respondent's serum and blood revealed a very high level of morphine (opiates) in Respondent's bloodstream. The level of opiates in his blood was greater than 1,999 mcg/1 and confirmed by immunoassay by the testing laboratory. Respondent admitted to the use of prescription opiate medication on March 11 and 12, 1994 while on duty as a paramedic. As a result of the drug testing of Respondent conducted the evening of March 11 and continuing the morning of March 12, 1994, and Respondent's arrest on March 14, 1994 on other charges related to improperly obtaining controlled substances or prescription medications, the Polk County EMS Medical Director rescinded Respondent's ability to function under the medical director's medical license. Furthermore, Respondent's employer, Polk County EMS, suspended Respondent without pay from his position as a paramedic with Polk County. Subsequently, Polk County EMS discharged Respondent, after providing a pre- determination conference, on August 26, 1994. HRS-EMS issued an Administrative Complaint, dated July 18, 1994, charging Respondent with a violation of EMS statutes, in particular Section 401.411(1)(a) and (k), Florida Statutes by having tested positive to controlled substances while on duty as a paramedic for Polk County EMS, March 12, 1994. HRS-EMS has adopted an "impaired" EMTs or paramedics policy and program pursuant to Rule 10D-66.0571, F.A.C.. While the administrative complaint tracks the department's impaired practitioner's rule and provided notice to Respondent relative to the rule, Respondent failed to take advantage of this beneficial program. Under the impaired practitioner's rule of HRS-EMS, a paramedic who becomes impaired as a result of drug or alcohol use or addiction may avoid administrative sanction by performing voluntary activities including those listed in the department's administrative complaint against Respondent. Respondent reported for duty as a paramedic while taking a level of controlled substances which impaired his ability to safely provide care to patients.
Recommendation Based on the foregoing, it is RECOMMENDED as follows: 1. The paramedic certification of Respondent be revoked and an administrative fine of one thousand ($1,000) dollars for the violation of paramedic certification requirements be imposed. It is further RECOMMENDED that should Respondent reapply for certification as a paramedic or EMT in Florida, he be required to submit to, and successfully complete, the conditions set forth in Rule 10D-66.0571(2), Florida Administrative Code, and pay the administrative fine recommended above, prior to recertification. DONE and ENTERED this 15th day of February, 1995, in Tallahassee, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of February, 1995. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. Petitioner's proposed findings of fact. Accepted in substance: paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 (in part), 19, 20, and 21. Rejected as subsumed or covered in the Preliminary Statement: paragraphs 12, 13, 14, 15, 16, 17, 18, and 22. Respondent has not submitted proposed findings of fact. COPIES FURNISHED: Robert L. Powell, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Kim Tucker, Esquire Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Robert P. Daniti, Esquire Emergency Medical Services Department of HRS 1317 Winewood Boulevard Tallahassee, Florida 32301 Joseph L. Riggall 13711 Hatchienha Road Haines City, Florida 33844
