Findings Of Fact Petitioner, Good Samaritan Hospital (GSH), is a hospital with emergency room services located in West Palm Beach, Florida. GSH is licensed under Chapter 395, Florida Statutes. Respondent, Department of Health and Rehabilitative Services (DHRS), is the designated state agency responsible for the regulation of hospitals pursuant to Chapter 395, Florida Statutes. On or about June 12, 1989, DHRS filed an Administrative Complaint against GSH alleging that GSH had, on the evening of November 30, 1988, failed to provide neurosurgical treatment to a patient presented to its emergency room by the West Palm Beach Fire Department Emergency Medical Services in violation of Sections 395.0142, 395.0143, and 401.45, Florida Statutes. The Administrative Complaint notified GSH that DHRS intended to levy an administrative fine against it in the amount of $10,000.00. On February 1, 1989, Department of Health and Rehabilitative Services (DHRS) issued PDRL Letter Policy No. 02-89 (letter policy), which purports to discuss the requirements of Section 395.0142, Florida Statutes. The following appears as paragraph 9 of the letter policy under the portion styled "Policy Statement": 9. If a hospital provides an "ongoing" service and/or specialty and is specifically requested to accept a "stabilized" patient from a transferring hospital not providing such service and/or speciality, the hospital must accept such transfer for treatment. If specialized staff is not "on duty" or readily available, coverage for such service must be arranged by the hospital to which the patient will be transferred. Failure to accept will be considered a violation of this statute. The following findings of fact are based, in part, on the stipulation of the parties: As of November 30, 1988, the date of the incident which is the subject of the administrative complaint, DHRS had not notified GSH of any rule or policy interpreting Sections 395.0142, 395.0143, and 401.45, Florida Statutes. As of November 30, 1988, no rule existed which stated a specific requirement that hospitals which provide neurosurgery in their emergency rooms must staff or provide on-call neurosurgery services on a continuous basis, i.e., twenty-four (24) hours per day, 365 days per year. As of November 30, 1988, no rule had been promulgated which contained the requirements of paragraph 9 of the letter policy. The following findings are based, in part, on admissions made by DHRS: Paragraph 9 of the letter policy is an agency statement of general applicability that implements, interprets, or prescribes law or policy. Paragraph 9 of the letter policy is an agency statement which imposes a requirement not specifically required by statute or by an existing rule. The letter policy was distributed to hospital administrators at all of Florida's licensed hospitals. The letter policy was primarily drafted by Connie Cheren, Director of DHRS' Office of Licensure and Certification, and by Larry Jordan, Chief of DHRS' Office of Emergency Medical Services, following meetings and consultations with staff. Neither Ms. Cheren nor Mr. Jordan is an attorney. The letter policy was sent out over Ms. Cheren's name. The DHRS employees who investigated the incident which occurred at GSH on November 30, 1988, initially submitted a report dated March 7, 1989, which found no violation by GSH. Thereafter, the investigators were provided a copy of the policy letter by their supervisor and advised to submit an amended report based on paragraph nine. The letter policy was used and relied on by DHRS investigators, at the direction of their supervisor, to submit their Amended Investigative Report. The amended report found a violation by GSH. DHRS relied, in part, on the letter policy in determining whether to file an administrative complaint against GSH.
The Issue The issue for determination is whether Respondent should be dismissed from employment with Petitioner.
Findings Of Fact In 1987, Steven E. Belford, hereinafter Mr. Belford, began his employment with the Palm Beach County School Board, hereinafter School Board, as a School Police Officer. From 1991 through April 1995, Mr. Belford considered the conduct of the School Board’s employees, including supervisory and management personnel, towards him to be racially hostile. During this same time period, from 1992 through April 1995, the School Board considered the conduct of Mr. Belford towards co-workers, supervisors, superiors, and students to be inappropriate. On April 10, 1995, a meeting, which could affect Mr. Belford’s employment, was held regarding his job performance. At this meeting, Mr. Belford was represented by counsel from the Police Benevolent Association, hereinafter PBA. Also among those present at the meeting was James Kelly, Chief of the School Police for the School Board. Chief Kelly was concerned with Mr. Belford’s conduct in the performance of his duties. During this meeting, Mr. Belford described the problems that he was experiencing in the work place. After listening to Mr. Belford, Chief Kelly’s concerns extended to the safety of students, staff, and visitors at the school to which Mr. Belford was assigned. As a result of this meeting, Chief Kelly determined that Mr. Belford should and would be required to undergo a fitness for duty examination. Mr. Belford’s PBA counsel advised him to undergo the fitness for duty examination. Even though Mr. Belford’s position was that there was no basis for the examination and that it was, therefore, inappropriate, he agreed to the examination. Mr. Belford was willing to comply with whatever was required of him, even though he may not agree, to keep his job. It is undisputed that the referral of Mr. Belford for a psychological evaluation was reasonable. On April 25 and 26, 1995, Dr. Harley V. Stock performed what he referred to as the “mandatory fitness for duty examination.” In Dr. Stock’s evaluation, dated May 3, 1995,2 he stated, among other things, the following: [Mr. Belford] shows no impairment in relationship to reality. . . . there was no indication of any underlying mood disorder. . . . There is no indication of any underlying thought disorder. . . . In summary this examiner has had the opportunity to review a significant amount of collateral information regarding Mr. Belford’s employment with the Palm Beach School Police Department. It appears that he has had fluctuating reviews, particularly in areas as it relates [sic] to interpersonal interactions. When confronted with documentation, Mr. Belford always has an “excuse”. He essentially feels that most of the problems that he is currently facing are a result of racial discrimination. He takes absolutely no responsibility for his own behavior. He is overly suspicious about other people’s motives towards him. He denies any type of provocative physical action towards the students or others. He believes that he is “misunderstood”. Psychological testing reveals him to be a skeptical, suspicious, over-controlled individual who may have the propensity to lose his “temper” at times when provoked. He, however, will have no insight into this. Instead, he would rather shift the blame, and responsibility to others for any problems that he finds himself in. I find some of Mr. Belford’s explanations for his behavior, as contained in the allegations, incredible. Based on psychological testing, Dr. Stock made the following recommendations in his evaluation: Because of his current psychologic [sic] functioning, his behavior at this time cannot be predicted in terms of his interactions with students and faculty members. He obviously harbors a great deal of hostility towards others, but does not either acknowledge, or recognize it. This can lead to episodes where he may become physically assaultive at the most, or at the very least, verbally aggressive in a way that is inappropriate in a school environment. I would therefore recommend that he is temporarily Unfit For Duty and that he needs mandatory psychologic [sic] counseling. Mandatory psychologic [sic] counseling means that the School Board should be appraised [sic] of his keeping scheduled counseling appointments, and that within a reasonable time, he be re-evaluated to ascertain whether he is making any progress in psychotherapy and gaining any insight into how to both understand his behavior and to modulate his impulses. During the time of treatment, I would recommend that he not engage in any functions that would place him in the role of having any type of “police authority”. This would include coming into contact with students and administrators. However, his psychologic [sic] condition does not render him totally incapable of employment. A “light duty” position would be appropriate in which he can carry on selected roles as described by the School Board while receiving treatment. After treatment is completed, within a reasonable time, Mr. Belford should then be re-evaluated to see if indeed treatment has had any effect on him. At that juncture, a further determination can be made about his work placement. In a meeting held on May 17, 1995, the results of Dr. Stock’s evaluation were discussed with Mr. Belford who was accompanied by his PBA counsel. Mr. Belford was advised that Dr. Stock considered him to be temporarily unfit for duty. In May 1995, in accordance with Dr. Stock’s recommendations, Mr. Belford was removed from duty. He was assigned light duty in the risk management department while he underwent counseling. Mr. Belford’s psychological counseling sessions were conducted by MCC Behavioral Care. His counseling sessions began on May 18, 1995. The School Board coordinated Mr. Belford’s appointments with MCC Behavioral Care and Dr. Stock. Melinda Wong was the coordinator for the School Board. During his last counseling session with MCC Behavioral Care held on August 4, 1995, Mr. Belford and his counselor agreed that he need not return to MCC Behavioral Care for any more counseling sessions. However, the counselor did not indicate to Mr. Belford whether he should or was required to return to Dr. Stock for a final evaluation. In August 1995, a representative from Ms. Wong’s office informed Mr. Belford that his final evaluation with Dr. Stock would be conducted on August 29, 1995. Mr. Belford attended the session with Dr. Stock on August 29, 1995. Mr. Belford departed the session with the understanding that the session was for his final evaluation and that Dr. Stock would submit his final report to the School Board within the next week. However, no final determination was made by Dr. Stock regarding Mr. Belford’s fitness for duty. Dr. Stock had concerns regarding the appropriateness of the counseling provided to Mr. Belford by MCC Behavioral Care. During the month of September 1995 and subsequent months, Mr. Belford periodically inquired of Ms. Wong about the status of Dr. Stock's final determination. Each time, she informed him that no determination had been made by Dr. Stock. Mr. Belford was clearly frustrated. On October 5, 1995, Mr. Belford filed a complaint of discrimination with the Equal Opportunity Employment Commission, hereinafter EEOC, against the School Board. Finally, Dr. Stock's office contacted Ms. Wong and informed her that Dr. Stock needed to have one more session with Mr. Belford in order to make a final evaluation. Ms. Wong arranged for the session to be conducted on January 3, 1996, after Mr. Belford's Christmas vacation. On Friday, December 15, 1995, at approximately 2:40 p.m., Ms. Wong went to Mr. Belford’s workplace which was in the immediate vicinity of her workplace. She advised Mr. Belford that he needed to attend a final session with Dr. Stock on January 3, 1996, in order for Dr. Stock to prepare the final evaluation. Believing that he had attended his final session with Dr. Stock on August 29, 1995, and that Ms. Wong was not aware of the final session, Mr. Belford informed Ms. Wong that he had already completed his final session and requested that she check her records. Mr. Belford was visibly tense and upset. Ms. Wong was surprised by Mr. Belford's reaction. She interpreted Mr. Belford's conduct as refusing to attend his last session with Dr. Stock for a final evaluation. Ms. Wong departed Mr. Belford’s workplace and immediately contacted Chief Kelly. Seeking advice, Chief Kelly telephoned Louis Haddad, the School Board’s Coordinator of Employee Relations. Mr. Haddad advised Chief Kelly to immediately contact Mr. Belford and to arrange a meeting with Mr. Belford that afternoon in Mr. Haddad's office, which was in the same building. Attending the meeting would be Mr. Belford, Chief Kelly, Ms. Wong, and Mr. Haddad. Chief Kelly telephoned Mr. Belford and informed Mr. Belford that he wanted to meet with him in Mr. Haddad's office. Mr. Belford informed Chief Kelly that he was getting-off work in approximately 10 minutes at 3:00 p.m.. At that time, Chief Kelly made it clear that he was giving Mr. Belford a direct order to attend the meeting. Mr. Belford advised Chief Kelly that he wanted his counsel present at the meeting. Chief Kelly did not respond to Mr. Belford's request, but asked him if he was refusing to attend the meeting, thereby disobeying a direct order. Immediately, Mr. Belford became nervous and afraid and felt queasy in the stomach. He inquired as to the location of the meeting. Chief Kelly informed him where the meeting was being held, and they both terminated the telephone conversation. Mr. Belford was on duty when Chief Kelly gave him the direct order to attend the meeting. Mr. Belford did not refuse to attend the meeting. He intended to attend the meeting. When the telephone conversation ended, Chief Kelly had a reasonable expectation that Mr. Belford would obey the direct order and attend the meeting being held that afternoon. Shortly after the telephone conversation with Chief Kelly, Mr. Belford began recalling the events leading up to the telephone conversation, and his nervousness and queasy feeling intensified. Mr. Belford became ill and was unable to attend the meeting. He departed from his workplace without notifying anyone of his sudden illness3 and without attending the meeting. While waiting for Mr. Belford, Chief Kelly, not being aware that Mr. Belford had departed his workplace, telephoned Mr. Belford's PBA counsel and informed him of the meeting and briefly of the underlying circumstances. The PBA counsel considered the meeting appropriate and advised Chief Kelly that he would be available by telephone when Mr. Belford arrived. Immediately after leaving his office, Mr. Belford contacted his new counsel. At approximately 3:25 p.m., a representative from the office of Mr. Belford's new counsel telephoned Chief Kelly. The representative of Mr. Belford's new counsel indicated to Chief Kelly that Mr. Belford would not be attending the meeting due to his sudden illness. Chief Kelly informed the representative that Mr. Belford had disobeyed a direct order and that, among other things, Mr. Belford was relieved of duty and would be recommended for termination due to insubordination. Prior to this telephone call, Chief Kelly had no knowledge that anyone other than the PBA counsel was representing Mr. Belford. Unbeknownst to the PBA counsel and Chief Kelly, Mr. Belford had decided prior to December 15, 1995, that he no longer wanted the PBA counsel's representation and that he wanted new counsel. On Monday, December 18, 1995, the next business day, Chief Kelly received written notification from Mr. Belford's new counsel regarding the reason for Mr. Belford's failure to attend the meeting. It is undisputed that there is no right to consult an attorney before obeying a direct order of a superior officer. Furthermore, it is undisputed that obeying a direct order from a superior officer is a critical and important aspect of the responsibilities of a police officer. On December 20, 1995, Chief Kelly recommended that Mr. Belford be terminated from employment with the School Board for insubordination. Mr. Belford never had a session with Dr. Stock subsequent to August 29, 1995. It was reasonable for Mr. Belford to presume that, since he was being recommended for termination, he was not expected to attend any future session with Dr. Stock. Dr. Stock never made a final determination as to whether Mr. Belford was fit to return to duty. On January 9, 1996, a pre-termination meeting was held with Mr. Belford at which he was represented by counsel. At the meeting, Mr. Belford was notified that he was being terminated for gross insubordination. By letter dated January 26, 1996, the School Board notified Mr. Belford that he was being suspended without pay and that he was being recommended for termination due to gross insubordination. On February 23, 1996, the School Board responded to Mr. Belford's charge of discrimination filed with the EEOC. The School Police for the School Board has a written policy regarding separation from employment. The policy defines gross insubordination in section "IV. C. Suspension/Termination" as "a willful disregard or constant or continuing intentional refusal to obey a direct order, reasonable in nature and given by and with proper authority." Furthermore, section "IV. D." provides that "Employees included in a bargaining unit are subject to suspension/dismissal provisions of the collective bargaining agreement." The School Board and the Palm Beach County PBA have a collective bargaining agreement, hereinafter CBA. Article 7 of the CBA, entitled "Police Officers Bill of Rights," provides in pertinent part as follows: 7.1 All law enforcement officers employed by the School Board shall have the following rights and privileges: Whenever a law enforcement officer is under investigation and subject to interrogation by members of his agency for any reason which could lead to disciplinary action, demotion, or dismissal, such interrogation shall be conducted under the following conditions: * * * I. At the request of any law enforcement officer under investigation, he/she shall have the right to be represented by counsel or any other representative of his/her choice who shall be present at all times during such interrogation when the interrogation relates to the officer's continued fitness for law enforcement service. * * * 5. No law enforcement officer shall be discharged, disciplined, demoted, or denied promotion, transfer, or reassignment, or otherwise be discriminated against in regard to his/her employment, or be threatened with any such treatment, by reason of his/her exercise of the rights granted by this part. Article 29 of the CBA, entitled "Progressive Discipline," provides in pertinent part as follows: This Section covers actions involving oral or written warnings, written reprimands, suspensions, demotions, dismissals, or reductions in grade or pay with prejudice. Disciplinary action may not be taken against an employee except for just cause, and this must be substantiated by sufficient evidence which supports the recommended disciplinary action. * * * 8. The discipline, dismissal, demotion, and suspension of any employee shall be for just cause. Where just cause warrants such action(s), any employee may be demoted, suspended, or dismissed upon recommendation of the Chief of Police to the Superintendent of Schools. Except in cases that constitute a real immediate danger to the District or other flagrant violation, progressive discipline shall be administered as follows: Verbal warning (written notation). Written warning. Written reprimand filed in Personnel. Suspension with or without pay. Dismissal. It is inferred and a finding is made that Mr. Belford is a member of the Palm Beach County PBA and is, therefore, subject to the collective bargaining agreement.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Palm Beach County School Board enter a final order revoking the suspension and dismissal and reinstating Steven E. Belford under terms and conditions as are appropriate. DONE AND ENTERED this 13th day of October, 1997, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 13th day of October, 1997.
Conclusions THIS CAUSE comes before the State of Florida, Agency for Health Care Administration (‘the Agency") concerning the preliminary approval of Certificate of Need (“CON”) Application No. 10220, submitted by Palm Coast Behavioral Health, LLC’s (“Palm Coast”) to establish a 63- bed adult inpatient psychiatric hospital in Service District 4, Flagler County. 1. On June 9, 2014, the Agency published its preliminary approval of Application No. 10220 submitted by Palm Coast Behavioral Health, LLC’s (“Palm Coast”) to establish a 63- bed adult inpatient psychiatric hospital in Service District 4, Flagler County. 2. In response, Halifax Hospital Medical Center (“Halifax”) filed a petition for formal hearing contesting the approval of CON Application 10220. The case was forwarded to the Division of Administrative Hearings. 3. Halifax subsequently voluntarily dismissed its petition for formal hearing. It is therefore ORDERED: 1. The preliminary approval of CON Application No. 10220 is upheld subject to the conditions in the State Agency Action Report for Application No. 10220. Filed October 2, 2014 11:06 AM Division of Administrative Hearings ORDERED in Tallahassee, Florida, on this 27 _ day ot Seem foec ans Elizabeth Dutek, Secretary Agency for Health Care Administration NOTICE OF RIGHT TO JUDICIAL REVIEW. A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I CERTIFY that a true and correct copy of this Final Order was served on the below- on named persons by the method designated on this ate PRAL 2014. CSCO Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308 (850) 412-3630 Jan Mills Lorraine M. Novak, Esquire Facilities Intake Unit Agency for Health Care Administration Office of the General Counsel Agency for Health Care Administration (Electronic Mail) (Electronic Mail) James McLemore, Supervisor Marisol Fitch Certificate of Need Unit Health Services & Facilities Consultant Agency for Health Care Administration Certificate of Need Unit (Electronic Mail) Agency for Health Care Administration (Electronic Mail) 2 Karen A. Putnal, Esquire Susan C. Smith, Esquire Robert A. Weiss, Esquire Corinne T. Porcher, Esquire Moyle Law Firm, P.A. Geoffrey D. Smith, Esquire Kputnal@moylelaw.com Smith and Associates Rweiss@moylelaw.com Susan@smithlawtlh.com (Electronic Mail) Corinne@smithlawtlh.com Geoffi@smithlawtlh.com (Electronic Mail) R. Bruce McKibben Administrative Law Judge Division of Administrative Hearings (Electronic Mail)
Findings Of Fact Respondent holds Florida teaching certificate number 380391, Post Graduate, Rank II, valid through June 30, 1986, covering the areas of math and junior college. Respondent was employed in the public schools of Palm Beach County as a math teacher at Lake Shore Middle School for the 1979-1980 school year. During the first few weeks of school, Respondent summoned her students into the classroom by shouting an obscenity at them and staged a funeral ceremony for a dead rat in her math class. Students reported these incidents to the principal and to the assistant principal for administration at Lake Shore Middle School. Respondent told another teacher in her carpool that she had found herself in the emergency room of a hospital and did not know how she had gotten there or why she was there. She further admitted being under the care of a psychiatrist. On October 12, 1979, Respondent was seen outside chasing students in an attempt to get them into her classroom, including students that did not belong there. Later, Assistant Principal Davis took Respondent out of her classroom and sent her to the teachers' lounge since she was unable to maintain control over her students in the classroom. Respondent later became subject to alternating outbursts of laughing and crying, without apparent reason. Respondent was driven home by the members of her carpool. Respondent did not return to Lake Shore Middle School. She was absent without leave from October 13, 1979, until her written resignation was accepted by the Palm Beach County School Board on December 3, 1979. On June 18, 1979, Respondent was arrested for possession of marijuana. She elected to participate in the Palm Beach County Pre-Trial Intervention Program. On November 8, 1979, Respondent was again arrested for possession of marijuana. Respondent was not prosecuted pursuant to the first arrest because of her participation and completion of the Pre-Trial Intervention Program. The record in this cause contains no evidence as to the disposition of Respondent's second arrest. The Petition for the Revocation of Teacher's Certificate dated July 29, 1980, was mailed by certified mail to Respondent at her last-known address. This and all subsequent mailings to her at her last-known address were returned marked "Unclaimed." Notice of Action was published in The Post, a Palm Beach County newspaper. Respondent's present whereabouts is unknown to each of the Petitioner's witnesses.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is, therefore, RECOMMENDED THAT: A final order be entered revoking the teaching certificate of Henrietta Forbes, certificate number 380391. RECOMMENDED this 16th day of April, 1982, in Tallahassee, Florida. LINDA M. RIGOT 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 16th day of April, 1982. COPIES FURNISHED: Thomas F. Woods, Esquire Woods, Johnston, Carlson & Sanford 1030 East Lafayette Street Suite 112 Tallahassee, Florida 32301 Mr. Donald L. Griesheimer Executive Director Education Practices Commission 125 Knott Building Tallahassee, Florida 32301 Ms. Henrietta Forbes 1812 "B" Road Loxahatchee, Florida 33470
The Issue Whether Petitioner's application for a Certificate of Need for a 50-bed addition to the Ormond Beach Hospital should be approved, pursuant to Chapter 381, Florida Statutes. This case involves petitioner's application for a certificate of need to expand, renovate, and consolidate ancillary service areas, and a 50-bed addition to its hospital. Respondent approved the application and issued a certificate of need for all aspects of the project except the 50-bed addition which it found would be inconsistent with the current health systems plan of Health Systems Agency of Northeast Florida, Inc., and because it determined that there was not a need for the additional beds in Volusia County. Petitioner filed its request for a Chapter 120 hearing. Thereafter, Intervenor Daytona Beach General Hospital, Inc., an orthopedic hospital located in Daytona Beach, petitioned for and was granted intervention in the proceeding over the objection of petitioner. During the course of the extensive hearing in this case, 15 witnesses testified in behalf of Petitioner, two were called by respondent, and four by the Intervenor. Eighty-seven exhibits were admitted in evidence. Exhibit 68 was withdrawn by stipulation of the parties.
Findings Of Fact Petitioner is a licensed 81-bed non-profit osteopathic general acute care hospital located at 264 South Atlantic Avenue, Ormond Beach, Florida. It is located on a site of approximately 4.6 acres bordered by Highway A1A on the east and Ormond Parkway on the north. The hospital plant consists of three buildings which have been joined together. One is a one-story dietary building that was originally a restaurant. A two-story building was built in 1970, and a one-story structure was built in 1954 and added to in 1960 and 1967. Other buildings owned by the hospital are adjacent residential homes on the premises which are used for storage, laundry, and other purposes. (Testimony of Hull, Exhibits 1-2, 13, 30, 59, 70) By a series of letters commencing on January 25, 1979, Petitioner advised Respondent's Office of Community Medical Facilities and the Health Systems Agency of Northeast Florida Area 3, Inc. (HSA) of its intent to expand and modernize its hospital and increase bed capacity. The last letter of intent was dated July 24, 1979. On September 21, 1979, Petitioner submitted its Certificate of Need Project Review Application to Respondent which included a request to increase the hospital's bed capacity from 81 to 161 beds. By letter of September 25, 1979, Respondent requested further information and, on December 11, 1979, Petitioner complied with the request and revised its application to seek only 50 additional beds. The proposed expansion and modernization plan included construction of a two-story addition to provide approximately 39,500 additional square feet, and renovation of approximately 22,000 square feet. Completion of the project would raise the hospital's total square footage of 39,350 to approximately 79,000 square feet. Incident to its request for additional beds, Petitioner proposes to initiate a 6-bed obstetrical unit at the hospital. (Exhibits 1-2, 7, 45-48) Petitioner's application was considered by various components of the HSA in January 1980, which resulted in a report and recommendations on the application which was filed with Respondent on February 25, 1980. During the course of the HSA's consideration of Petitioner's application at its several levels, representatives of Petitioner and the Intervenor appeared at the various meetings and presented their respective views regarding the application. The HSA report recommended approval of Petitioner's application for the renovation of its existing facilities and ancillary services, and approval of 44 additional beds. It further recommended that the state should take actions necessary to delicense a like number of beds within Petitioner's service area. The recommendation of 44 instead of 50 beds resulted from a finding that the proposed 6-bed obstetrical unit was not needed in the community in view of the probability that osteopathic physicians would likely be granted obstetric privileges in the future at allopathic facilities as a result of the enactment of legislation prohibiting the discrimination by particular provider professions against osteopathic physicians. The HSA found that although "Goal" DTS 1 in its Health Service Plan (HSP) which is used as a "guide" for health planning called for less than 4.3 acute care hospital beds per 1000 population with an overall average annual occupancy rate of at least 80 percent by 1984 in Health Service Area 3, it could approve additional beds for opening prior to 1984 if "extraordinary circumstances" exist as identified in "Goal" EA 2. It further found that Area 3 then had 5255 civilian acute care hospital beds, or a rate of 5.4 beds per 1000 population, with an average occupancy of 61 percent, and that, therefore, approval of additional beds, without cause, would be contrary to "Goal" DTS 1. However, the agency determined that extraordinary circumstances existed in Petitioner's case due to the fact that it had been operating for the past several years at an average occupancy of near or above 90 percent and that within its service area there existed in excess of 200 licensed medical surgical beds which were not staffed or used. The HSA therefore concluded that the situation denied ready access to acute care facilities to the citizens residing in Petitioner's service area. The HSA also considered that approval of the project would improve the effective and geographic distribution of beds and patient and physician accessibility in Volusia County because it was the only hospital located on the beach peninsula. It further found that the great number of elderly patients living in Volusia County and seasonal population fluctuations due to large numbers of tourists living in the area could be denied access to inpatient facilities if the project was not approved. As other extenuating factors, the HSA report stated that Petitioner had been granted prior certificates of need to expand its bed capacity, but that they had expired prior to implementation, that its inpatient facilities were antiquated, that denial of the beds would serve to deny access to patients of osteopathic facilities, and that federal law (PL 96-79) recognized that the need for additional or expanded osteopathic facilities should be determined on the basis of the need for and availability in the community for such services and facilities. (Testimony of Floyd, Hull, Exhibits 4, 8-12, 14, 59) By letter of March 28, 1980, Respondent's Administrator, Office of Community Medical Facilities, informed Petitioner that its application for certificate of need to expand, renovate and consolidate ancillary service areas at a total project cost of four million dollars was approved, and Certificate of Need Number 1236 was attached. The letter further advised petitioner that the proposed 50-bed addition was denied as being inconsistent with the current Health Systems Plan of the HSA, that there was not a need for the additional 50 beds in Volusia County as evidenced by facts contained in an attached State Agency Action Report, and that the extraordinary circumstances upon which the HSA recommended approval were not valid as evidenced by the same report. However, the referenced report was not submitted in evidence at the hearing, nor was any testimony adduced as to the rationale for the agency decision. By letter of May 28, 1980, Petitioner requested Respondent to increase the amount of the issued certificate of need to ten million dollars due to anticipated additional costs of construction and, by letter of July 24, 1980, Respondent advised Petitioner that the "cost over-run" had been approved and an amended copy of the Certificate of Need Number 1236 reflecting the additional cost was attached. (Testimony of Hull, Exhibits 57-58) Volusia County has eight hospitals of which six are allopathic and two are osteopathic. There are five hospitals in the Daytona Beach/Ormond Beach "coastal area" of the county which include Petitioner, Intervenor Daytona Beach General Hospital, Inc. (osteopathic), Ormond Beach Memorial Hospital, Daytona Community Hospital, and Halifax Hospital Medical Center. Two other hospitals in the county are Fish Memorial and West Volusia located in Deland. The remaining hospital is Fish Memorial at New Smyrna Beach. Petitioner is the only hospital on the beach peninsula which is connected to the mainland by several drawbridges. Daytona Beach General Hospital and Ormond Beach Memorial Hospital are located on the mainland in the northern "coastal area" several miles in distance from Petitioner. The remaining two hospitals in the area are within an average of 30 minutes driving time from Petitioner except during the peak tourist season of February to July each year, or when undue delays are experienced at the drawbridges. The HSA recognizes Petitioner's health service area to be Volusia County. In June 1979, the eight hospitals in Volusia County had a total of 1675 licensed beds, of which 1395 were open and staffed for use. Of the 378 osteopathic beds, only 178 were open and staffed. Occupancy of the licensed beds during the period July 1978 to June 1979 ranged from a low of 13.8 percent for Daytona Beach General Hospital to a high of 92 percent for Petitioner. The average occupancy of all licensed hospital beds was 51.2 percent. For the month of July, 1980, 1418 beds were open and staffed with 65.2 percent occupancy. Fish Memorial Hospital of New Smyrna Beach has a certificate of need for an additional 45 beds. In June 1979, all of Petitioner's licensed beds were staffed, but only 97 of Daytona Beach General Hospital's 297 licensed beds were staffed and available for use. Its patient population, however, has increased during the past year. In July 1978, Volusia County had a population of approximately 230,000 and therefore had about 7 acute care beds per 1,000 population. The 1980 preliminary census figures for the county showed the population to be 249,434 and it is projected that the final census figures will increase from one to two percent which would place the county population at between 252,000 and 254,000. If the higher figure is utilized, the bed ratio for the county at the present time would still be over 6 beds per 1,000 population. It is projected that the population of Volusia County will increase to 275,900 by 1984. If the current 1675 licensed beds remain the same, there would then be approximately 6 beds per 1,000 population. Approximately 25 percent of the Volusia County population consists of individuals who are 65 years of age or older whereas only some 9 percent of the population in the other six counties in HSA Area 3 are in that category. Although the HSA's plan arrived at its goal of 4.3 beds per 1,000 population for Area 3 in accordance with federal guidelines which allowed for adjustments in areas with referral hospitals, high tourism rates, and areas with greater than 12 percent of the population being 65 years of age or older, no further adjustment was made for Volusia County in spite of the fact that the Area 3 rate of about 13 percent of elderly population is about half that of the county. Further, the seasonal fluctuation as a result of tourists was not quantified on the basis of available statistics. However, in its justification for the 4.3 beds goal, the HSP makes note of the fact that Volusia County has 22 percent more patients per day during the high tourist months than during the lowest occupancy months of he year. On an average day in 1979, 73,000 tourists were in Volusia County which equated to approximately an additional 30 percent of the county population of 240,421. During the year 1979-80, about 22 percent of Petitioner's patients were residents of places other than Volusia County. However, there are no available statistics on the numbers of such persons who were inpatients. Most of the tourists seek only outpatient treatment for sunburn and minor injuries, although some undergo surgery during the months they are visiting the coastal area. (Testimony of Schwartz, Floyd, Smith, Hull, Clapper, Exhibits 3, 5-6, 18-26, 29, 51) Petitioner's application reflected that its 81 licensed beds were then utilized as medical/surgical (69 beds), intensive care (6 beds), and pediatrics (6 beds). The proposed additional 50 patient beds would be utilized as medical/surgical (29), intensive care (6), progressive care (4), pediatrics (3), obstetrical (6), and isolation (2). However, subsequent to filing its application, Petitioner discontinued its pediatric ward, and created 3 additional medical/surgical beds from the 6 former pediatric beds. (Testimony of Hull, Exhibit 2) The need for six additional intensive care beds and the initiation of a four-bed progressive care unit is to eliminate the past practice of prematurely transferring intensive care patients to other patient beds due to an insufficient number of intensive care beds. Such transfers required the conversion of semi-private into private rooms with additional equipment and nursing care which also reduced the total number of available beds within the hospital. Transfers of this nature were made extensively during the past fiscal year. (Testimony of Hull, Schwartz, Nargelovic, D'Assaro, Exhibit 2) The request in the application for two beds to serve as isolation rooms is based upon the fact that petitioner does not maintain any such rooms at the present time and it requires them to meet acceptable standards of health care. Currently, when isolation is necessary, a semi-private room is converted for the single patient requiring isolation, thus reducing the number of available beds. (Testimony of Schwartz, Hull, Nargelovic, Exhibit 2) Petitioner's request to establish a six-bed obstetrical unit is based upon its claim that such a unit is necessary to properly provide patients of osteopathic physicians with such a service and to provide full health care services which would not only attract new physicians to the hospital, but also enable Petitioner to conduct an intern training program. In addition, Petitioner is of the opinion that such a unit is necessary to provide service to patients living on the peninsula because the closest hospital providing obstetrical care is Halifax Hospital which is located on the mainland. The other obstetrical units are located at Fish Memorial Hospital at New Smyrna Beach and West Volusia Hospital at Deland which are some thirty miles away and do not conduct approved intern or residence programs for osteopathy. Halifax Hospital restricts staff privileges to those physicians who have met American Medical Association criteria and, therefore, osteopathic physicians generally are not eligible to utilize the obstetrical unit there. The HSA found that Petitioner projected 375 deliveries in its proposed obstetrics department during the third year of operation. The agency's HSP goal DTS 4.2 provides that no additional obstetrical departments should be approved in Volusia County until each existing department in the county is performing at least 1,000 deliveries annually. Only Halifax Hospital exceeds the 1,000 annual delivery standard. The HSA disapproved the requested obstetrical beds based upon its view that obstetrical beds at Halifax Hospital would eventually become available for use by osteopathic physicians. (Testimony of Schwartz, Hull, Rees, Exhibit 2-3, 6, 14, 54-55) Petitioner primarily bases its request for the additional 29 medical/surgical beds on the fact that it is the only hospital on the peninsula, has extreme seasonal demands placed on it by tourist population, and that the hospital census has been over 92 percent average occupancy during the past fiscal year. At times, the hospital has been filled to capacity, and has found it necessary to use "hall beds" to meet the need for emergency admissions. The crowded conditions have necessitated frequent delays in patient admissions or the referral of patients to other hospitals. A patient occupancy rate averaging 80-85 percent is normally acceptable, but Petitioner experiences a certain amount of inefficiency and lessened quality of care when over 80 percent of its beds are occupied. This is reflected in the difficulty of staffing and providing support services, and possible premature patient discharge. (Testimony of Schwartz, Hull, D'Assaro, Draper, Mason, Shoemaker, Exhibits 2, 51, 69) Although approximately 80 percent of Petitioner's patients reside in the coastal area of Volusia County, only some 29 percent reside in the northeastern part of the county where Petitioner's hospital is located. Petitioner currently has 27 osteopathic physicians on its staff, 18 of whom admit their patients principally to Ormond Beach Hospital and 7 admit there exclusively. Nineteen of the osteopathic physicians have staff privileges at other hospitals. Twenty-four allopathic physicians have staff privileges at Ormond Beach Hospital, but most are specialty consultants who admit less than one percent of Petitioner's patients. (Testimony of Schwartz, Floyd, Hull, D'Assaro, Exhibits 16-17, 60, 67) The quality of care provided patients at Ormond Beach Hospital is excellent, particularly in view of the antiquated physical plant and prevailing crowded conditions. These problems have led to the existence of a number of existing beds which do not conform to state fire, safety and other standards. It is planned that the majority of the existing beds will be located in a new building to provide room in the present buildings for expansion of ancillary and support facilities. The hospital is accredited by the American Osteopathic Association and by the Joint Commission on Accreditation of Hospitals. Accreditation by the Joint Commission indicates that a hospital provides an excellent standard of Health care. (Testimony of Draper, Boxx, Hull, Wisely, Mason, Shoemaker, D. Smith, Exhibits 1-2, 28-42, 49-50, 71-77) Petitioner is an osteopathic hospital whose Board of Directors is composed of osteopathic physicians. There are no physical differences between allopathic and osteopathic hospitals with the minor exception that the latter utilizes a table for manipulative therapy for some 20 to 30 percent of the patients. The primary difference between the two concepts is philosophical in nature. Osteopathy emphasizes a "wholistic" approach to medicine which stresses the importance of the musculoskeletal structure and manipulative therapy in the maintenance and restoration of health. It is family practice-oriented with about 75 percent of osteopathic physicians engaged in general practice rather than specialty medicine. Emphasis is placed upon personal attention by the physician to the patient. These factors produce a certain amount of patient preference for treatment in an osteopathic facility. (Testimony of Floyd, Schwartz, Wisely, Hull, Mason, Shoemaker, D. Smith, D'Assaro, Exhibit 78) Although the bylaws of two of the three allopathic hospitals located in the coastal area of Volusia County have recently been amended to permit osteopathic physicians to obtain staff privileges, certain vestiges of prior discrimination still exist due to the fact that hospital control is exercised by allopathic physicians, and that board certification is required which excludes many osteopathic physicians. The third hospital, Halifax, requires board certification in an American Medical Association approved specialty or residence program. As a consequence, only one osteopathic physician is on its staff. (Testimony of Draper, Hull, Porth, Helker, Rees, D. Smith, Exhibits 54, 63, 66) Daytona Beach General Hospital, Inc. is the other osteopathic hospital in the area which is located on the mainland several miles away from Ormond Beach Hospital. It has 297 licensed beds, but only 107 were staffed and open for use in July 1980. Its rate of occupancy in June 1979 was 13.8 percent of the licensed beds. The hospital has experienced past difficulties due to a substandard physical plant and inadequate staffing in certain areas. Although many osteopathic physicians decline to admit patients to the hospital, they generally agree that the standard of care is adequate, except for critical care cases. The hospital has sought in the past to attract additional patients by accepting staff applications from qualified area physicians. Daytona Beach General is accredited by The American Osteopathic Association and has pending an application for accreditation by the Joint Commission on Accreditation of Hospitals. (Testimony of Draper, Wisely, Boxx, Hull, D. Smith, Clapper, Solomon, Exhibits 27, 29-80) Petitioner has exerted efforts to acquire licensed hospital beds from other area hospitals to alleviate its shortage, but has been unsuccessful. Hospitals are reluctant to give up licensed beds even though they are not currently being utilized because they normally anticipate a need for them in future years. Although Daytona Beach General Hospital has been the subject of negotiations for sale with various entities, including Petitioner, in recent years, they have not been successful. None of the hospitals, including Petitioner, desires to share space in other hospitals due to the resulting lack of control over operations and procedures. Petitioner held a certificate of need for 84 beds in 1976 which it was forced to relinquish when it received a certificate of need for the proposed purchase of Daytona Beach General Hospital. (Testimony of Boxx, Hull, Porth, Hilker, Clapper, Rees, Draper, Exhibits 15, 28, 21-37, 43-44, 55-56) It is estimated that the renovation and expansion of Ormond Beach Hospital will take from 18 to 24 months to complete. Approval of additional beds will result in dividing construction expenses among a greater number of patients, thus lowering costs of health care. On the other hand, without the addition of hospital beds, an increase in patient costs is to be expected. The addition of new beds will be a positive factor in Petitioner's recruitment of osteopathic physicians to the area and in initiating an intern training program. It should also serve to increase Petitioner's competitive position among other area hospitals and provide a better quality of care for its patients. (Testimony of Draper, Boxx, Hull, D. Smith, Clapper)
Recommendation That the application of Petitioner for a certificate of need for a 50 acute-care bed addition to its facility be approved in part for 38 additional acute-care beds. DONE and ENTERED this 6th day of April, 1981, in Tallahassee, Florida. THOMAS C. OLDHAM 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 6th day of April, 1981. COPIES FURNISHED: Eric J. Haugdahl, Esquire Department of HRS 1323 Winewood Boulevard Tallahassee, Florida 32301 Bernard H. Dempsey, Jr., Karen L. Goldsmith, Esquires Suite 610 Eola Office Center 605 East Robinson Street Orlando, Florida 32801 L. LaRue Williams, and Glenn R. Padgett, Esquires Kinsay, Vincent, Pyle, Williams and Tumbleson 52 South Peninsula Drive Daytona Beach, Florida 32018 Honorable Alvin Taylor Secretary, Department of HRS 1323 Winewood Boulevard Tallahassee, Florida 32301 =================================================================
Findings Of Fact Introduction At all times relevant hereto, respondent, Miguel G. Gazek, held physician license number ME 0031784 issued by petitioner, Department of Professional Regulation, Board of Medical Examiners (DPR). His last known address is 3434 Lake Ida Road, Suite 1E, Delray Beach, Florida. When the events herein occurred in 1983 and 1984, respondent was a member of the hospital staff at Delray Community Hospital (DCH) in Delray Beach, Florida. When he first joined the staff, Gazek was given provisional status. This means he was to be evaluated for a period of time, and if he met the hospital standards, he would be promoted to active status. While on provisional status, Gazek's care of certain patients was reviewed by other physicians, and this culminated in his hospital privileges being revoked, and referral of the matter to petitioner for possible disciplinary action. The administrative complaint was later issued on August 25, 1986. There are four patients whose treatment is being questioned in this proceeding, and who, for purposes of identity, will be referred to by their initials. Each case will be discussed below. In support of its case, petitioner presented the testimony of four physicians who have been accepted as experts in this proceeding. They are Drs. Bryan Wasserman, Bruce Levin, Dick Van Eldick and Steven Resnik. All are licensed physicians in the Delray Beach area and two (Wasserman and Resnik) are board certified in internal medicine. A third (Van Eldick) is board certified in family practice while the fourth (Levin) is eligible for certification in internal medicine. Three of the physicians were colleagues of Gazek when he was on the staff at DCH. The fourth (Van Eldick) was retained by petitioner to review the patient files in question. Patient F.S. On September 4, 1984 F.S., a 69 year old female, was admitted to DCH with a history of slight exertional dyspea and chest pain. Her primary care physician was Dr. Jack Goldberg, a provisional staff member at DCH. Of some significance was the fact that F.S. had just been recently discharged from DCH on August 28, 1984 after having sustained an acute myocardial infarction (MI) and an episode of pulmonary edema and congestive heart failure. Dr. Goldberg's initial orders clearly indicated that F.S. was in decompensated congestive heart failure with a possible evolving MI. Although Gazek was an internist, Dr. Goldberg requested Gazek examine the patient because she was having more difficulty in breathing. Gazek examined the patient on September 6, 1984. By this time, there was gross clinical decompemsation in the patient's status. Indeed, F.S. was in acute distress, and was possibly suffering an acute evolving MI and an impending acute pulmonary edema. Despite this condition, Gazek did not see fit to transfer the patient to an intensive care unit (ICU) and felt the congestive heart failure was under control. Because the head nurse was distressed at Gazek's assessment, Goldberg's peer reviewer (Dr. Wasserman) was called into the case. Wasserman became concerned because Gazek was not a cardiologist, yet was rendering advice on the patient's condition. Wasserman then requested that a board certified cardiologist (Dr. Roger Zitrin) see the patient. Zitrin transferred F.S. to an intensive care unit, ordered diuretics for the patient and placed her on a nitroglycerin drip. He also ordered lasix, a medication for F.S.' acute heart condition. Gazek later had an occasion to see the patient and again felt her condition was not critical. He countermanded Zitrin's orders by discontinuing the diuretics and ordering a nitroglycerin pad instead of the drip already ordered by Zitrin. The patient later expired while in the ITU. Through expert testimony it was established that on September 6, F.S. should have been transferred to an ICU setting, placed at bedrest, given nitrates, intravenous nitrate, morphine and Foley catheter, and have her fluids restricted. By failing to recognize the severity of F.S.' condition, countermanding a cardiologist's orders, and not having the patient promptly transferred to an ICU setting with appropriate treatment, Gazek failed to practice medicine with that level of care, skill and treatment expected of a Delray Beach area physician. Patient V.S. Patient V.S. was a 22 year old female admitted to DCH on October 4, 1983. She bad previously been seen by Gazek at his office where she complained of palpitations and a nine-pound weight gain in the prior few months. An electrocardiogram (EKG) performed on V.S. at respondent's office on September 29, 1983 revealed a normal sinus rhythm. Gazek initially diagnosed V.S. as having premature ventricular contractions (PVC). The ailment is frequently found in persons with severe heart disease. Gazek also suspected V.S. bad impending congestive heart failure because of her recent weight gain. Because of this, she was admitted to the hospital. After admitting the patient, Gazek ordered V.S. placed on lanoxin, which should only be used in rare instances in the treatment of PVC, and cortexone, a calcium channel blocker used to treat cardiac disease. Diagnostic tests later administered to V.S. showed no sign of heart disease. Through expert testimony it was established that Gazek misdiagnosed the condition of the patient, and improperly admitted her to the hospital. Indeed, it turned out that V.S. needed only outpatient diagnostic studies and evaluation. He also administered inappropriate medications which could have harmed the patient. By doing so, he failed to meet the minimum standard of care expected of a physician. Patient M.S. This patient (a 75 year old female) had been admitted to DCH by respondent on December 5, 1983 after suffering a massive heart attack. The admission diagnosis was myocardial infarction with hypotension and congestive heart failure. She was initially placed on dopamine, diuretics, nitroprusside and digitalis, and her fluids were restricted. The consulting physician on the case was Dr. Glass, a board certified cardiologist. Glass found M.S. to have a potential for digitoxin toxicity and ordered that she quit taking the digitalis medication intravenously. Despite the cardiologist's orders, Gazek examined the patient, and did not recognize the patient's signs of toxicity from digitalis. Consequently, he ordered M.S. to be kept on her medication. As a result, M.S. became very digitalis toxic, went into an arrhythmia and later expired. In ordering the medication, Gazek exhibited a lack of knowledge concerning the difference between dosages of the drug given orally and intravenously. Such knowledge would be expected of both an internist and a family physician. By failing to follow a consultant's advice, and inappropriately administering a medication to M.S., Gazek failed to practice medicine with that level of care, skill and treatment expected of a Delray Beach area physician. Patient R.T. R.T. was an elderly female patient dying of terminal carcinoma (cancer) who was treated by Gazek at DCH between October 18 and November 11, 1983. On October 26, Gazek erroneously diagnosed the patient as having an inappropriate antidiuretic hormone syndrome because of her serum sodium level. Although she was a terminal patient, Gazek had her immediately transferred to an ICU for monitoring of a rapid irregular heart rate. He also told the nurse R.T. was suffering from congestive heart failure. He then ordered R.T. to be given large amounts of a saline solution at rapid rates (166cc per hour). This is inappropriate for a patient who has congestive heart failure. Only after the nurse argued with Gazek did he lower the rate of delivery of the solution. By misdiagnosing the ailment of-the patient, and inappropriately administering the incorrect medication, Gazek did not conform with the standard of care expected of a Delray Beach area physician.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Miguel G. Gazek be found guilty of the charges in Count I of the administrative complaint, and that his medical license be REVOKED. Count II should be DISMISSED. DONE AND ORDERED this 27th day of April, 1987, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 1987.
The Issue Whether the Palm Beach Health Department (Respondent) committed an unlawful employment practice by failing to reasonably accommodate the alleged disabilities of DeLores Boatwright (Petitioner). Whether Respondent committed an unlawful employment practice by discriminating against Petitioner based on Petitioner’s age.
Findings Of Fact At all times pertinent to this proceeding, Respondent has been an agency of the State of Florida pursuant to section 20.43, Florida Statutes, and an employer within the meaning of section 760.02(7), Florida Statutes (2012). Petitioner was employed by Respondent between January 3, 2002, and January 31, 2013. On January 31, 2013, Respondent terminated Petitioner’s employment for cause. Petitioner worked as an HIV counselor, which required her to provide both pre-test and post-test counseling to clients interested in HIV testing. Counseling performed by Petitioner involved her sitting in an office setting with the door closed to discuss with clients risks for contracting HIV and methods to reduce those risks. HIV counseling sessions are typically conducted face to face. There was a dispute in the record as to how much computer input is necessary while conducting a counseling session. The greater weight of the credible evidence established that any notes would typically be taken by hand and that any computer input would typically be made after the counseling session had been completed. Counseling sessions typically lasted approximately 15 to 20 minutes. Due to privacy and HIPPA considerations, counseling sessions were conducted in a private office with the door closed. Petitioner was directly supervised by Robert Scott from 2005 until December 2011. In October 2009, Petitioner was rear-ended in a car accident while working. This accident prompted a workers’ compensation claim. Petitioner advised Mr. Scott that she had hurt her neck, upper back, and right shoulder. Initially, Petitioner had work restrictions of no lifting, no driving for the job, and no bending. As of October 27, 2009, Petitioner’s work restrictions were lifted, and no other work restrictions were placed on Petitioner. On January 28, 2010, Petitioner was referred to Dr. Edward Chung, an orthopedic specialist. Dr. Chung placed no work restrictions on Petitioner. On February 3, 2010, Dr. Chung determined Petitioner had reached maximum medical improvement and gave her an impairment rating of zero percent. During the remainder of her employment, Petitioner had no on-going impairment rating or work restrictions as a result of her automobile accident. Petitioner worked at the West Palm Beach Health Center, which is Respondent’s primary care medical clinic. This clinic, located on 45th Street in West Palm Beach, is generally known as the 45th Street Clinic. The majority of the rooms in the 45th Street Clinic are examination rooms with an examination table, a small sink, and a small desk for use by the nurse or doctor. The 45th Street Clinic has a limited number of consultation rooms, which are typically small interior offices with a desk that separates the counselor and client with counter space behind or to the side of the counselor for computer work. For a year and a half between 2004 and 2005, Petitioner conducted her counseling sessions in Room 104 of the 45th Street Clinic. Room 104 is a relatively small office with no windows. At the end of 2005, Petitioner’s office assignment changed to Room 102, which is also an interior office with no windows. This move was at Petitioner’s request when the room became available due to the retirement of a colleague. Room 102 is slightly larger than Room 104. Petitioner remained in Room 102 until the beginning of 2010. While she was assigned Room 102 and Room 104, Petitioner kept her door closed, even when she was not seeing clients. This practice was problematic because other staff members were unable to determine when Petitioner was available to counsel patients. Mr. Scott discussed with Petitioner on numerous occasions the need for her to keep her office door open when she was not with a client. Petitioner informed Mr. Scott that she kept the door closed because of a sinus problem that felt better when the door was closed. Petitioner never provided medical documentation of her alleged sinus problem, and there was no credible explanation why keeping her office door closed would improve a sinus condition. In early 2010, Petitioner’s room assignment was changed from Room 102 to Room 107. This reassignment was necessary because Respondent needed to make Room 102 available for another, legitimate business use. Room 107 was an exterior office with a window. Its furniture was in an “L” shape attached to a wall. The office contained a desk and a counter for a computer. During counseling sessions, the counselor and client would sit face-to-face on opposite sides of the desk. The computer was to the counselor’s side, which required the counselor to turn or swivel her chair away from the client to access the computer. In December 2010, Petitioner complained to Mr. Scott that the furniture arrangement in her office was causing her neck and back pain. Petitioner attributed that pain to turning to access her computer or turning to talk to a client while on the computer. In response to Petitioner’s complaint of pain, Mr. Scott requested that Michial Swank, Respondent’s risk manager, perform an ergonomic evaluation of the furniture in Room 107. Such an evaluation is a service that requires no medical documentation and is offered by Risk Management to any employee. Mr. Swank determined that if the furniture could be reconfigured, it should be so that Petitioner did not have to twist to look from a client to the computer or vice versa. Mr. Swank provided his assessment to Respondent’s General Services Department to determine whether the furniture could be reconfigured. Respondent’s General Services Department determined the furniture could not be reconfigured because it was modular furniture custom-made for the office and bolted together. Around March 2011, Dr. Cook, the director of the 45th Street Clinic, proposed that Petitioner change rooms with another HIV counselor located in Room 104. Mr. Swank performed an ergonomic assessment on Room 104 and determined the furniture and computer location to be ergonomically correct for counseling a patient while on the computer. Respondent offered Petitioner the option of moving from Room 107 into Room 104, but she refused that offer and opted to remain in Room 107. Petitioner cited her sinus problems as the reason she did not want to move back to Room 104. Despite her decision to remain in Room 107, Petitioner attempted to persuade Helen Bonner, a nurse, to switch offices with her. This attempt was without the knowledge or permission of Mr. Scott or any other administrator. Ms. Bonner’s room was set up for clinical use for patients with seizure disorders. When Yankick Gribikoff, the nursing supervisor, heard of Petitioner’s effort to have Ms. Bonner swap offices, Ms. Gribicoff immediately squelched the idea. Ms. Bonner’s office had specialized equipment, including specialized telephone equipment and refrigerators. Ms. Gribicoff had valid reasons to end Petitioner’s efforts to swap rooms with Ms. Bonner. In the fall of 2011, two of Respondent’s clinics were closed due to budgetary constraints. Certain personnel were moved from those closed clinics into the 45th Street Clinic. At that time, Rooms 104 and 107 were the only two rooms in the 45th Street Clinic available for HIV counseling. It became necessary to use Room 107 for both HIV and STD (sexually transmitted disease) counseling. Because of its location and proximity to other services, Respondent had a valid reason to select Room 107 over Room 104 as the room for HIV and STD counseling. While Petitioner had had some training in STD counseling, she had difficulty with that type of counseling. An expert in STD counseling was among the personnel being moved from one of the closed clinics to the 45th Street Clinic. Respondent had a valid reason to select the expert to occupy Room 107. Respondent reassigned Petitioner to Room 104. Petitioner agreed to the reassignment and moved into Room 104 on October 3, 2011. Petitioner kept the door to her office closed even when she was not counseling clients. In early November 2011, Mr. Scott received a complaint about the physical condition of Room 104 from someone who used that office while Petitioner was away. The complaint centered on the room’s lack of cleanliness. On November 18, 2011, Mr. Scott met with Petitioner to discuss certain concerns he had. It was during that meeting that Petitioner told Mr. Scott, for the first time, that she was claustrophobic in Room 104. Petitioner referred to Room 104 as being a “closet” and stated that she could not stay in that room. Petitioner brought to Mr. Scott a doctor’s note dated November 23, 2011, that reflected that Petitioner was experiencing claustrophobic symptoms and could not stay in a small, closed space for 15 to 20 minutes. Upon receiving the doctor’s note, Mr. Scott notified Human Resources of the doctor’s note. Arrangements were made to provide Petitioner a larger room in another clinic. Due to the merger of the two closed clinics with the 45th Street Clinic, no room at the 45th Street Clinic, other than Room 104, was available for Petitioner’s use as an HIV counselor. A larger office was found in the Lantana Clinic. The targeted Lantana office was being used by another HIV counselor. To accommodate Petitioner, Respondent arranged to have the Lantana counselor transferred to the 45th Street Clinic and Petitioner transferred to the Lantana Clinic. Petitioner was advised of this change in location and agreed to move around December 18, 2011. She never advised or stated she could not drive to the Lantana Clinic. Petitioner called in sick on December 18, the day she was scheduled to move to the Lantana Clinic. On December 19, 2011, Petitioner reported for work at the 45th Street Clinic instead of the Lantana Clinic. Petitioner stayed at work at the 45th Street Clinic for a few hours, but left because she was not feeling well. On December 19, 2011, Petitioner suffered a stroke1/ and went on medical leave. In May 2012, Petitioner told Mr. Scott that she was ready to return to work. For legitimate business reasons, the Lantana Clinic office was no longer available. Jacqueline Lester is the equal opportunity manager for the Florida Department of Health. Ms. Lester reviews requests for reasonable accommodations with the authority to approve or reject a request. Ms. Lester first became aware of Petitioner as a result of Petitioner’s accommodation request dated December 15, 2011. Petitioner asked to stay at the 45th Street Clinic in a larger office with a furniture arrangement not requiring her to turn her neck. That request was not processed because Petitioner soon thereafter went on medical leave for an extended period. On June 19, 2012, a second request for accommodation was received from Petitioner. In this request, Petitioner asked for a reasonably-sized office, which Petitioner described as being at least 10’ x 10’, with a window. She also asked that the office be within close distance to her home in Palm Beach Gardens due to her inability to drive or sit for “any great length of time.” Petitioner also requested that she start back to work on a part-time basis. Petitioner’s request included notes from two doctors. This medical documentation did not state that Petitioner could not drive due to a neck and back disability. After reviewing the request and medical documentation, Ms. Lester, whose office is in Tallahassee, talked with Respondent’s personnel in Palm Beach County. Ms. Lester decided to accommodate Petitioner’s request. The accommodation was an office located in Respondent’s clinic in Delray Beach. The office was 10’ x 10’ with a window. Although the Delray Beach Clinic was a substantial commute from Petitioner’s home in Palm Beach Gardens, the accommodation included permission for Petitioner to stop as needed while traveling to work without being penalized for late arrival at work.2/ The accommodation also provided that Petitioner could return to full-time schedule at the Delray Beach Clinic “upon release from her medical providers.” Petitioner refused the offer of the office at the Delray Beach Clinic. On January 31, 2013, Respondent terminated Petitioner’s employment for cause based on Petitioner’s refusal to return to work. Petitioner presented no meaningful evidence that Respondent discriminated against her based on age or because of her perceived disabilities. Petitioner filed her Complaint of Discrimination with the FCHR on September 5, 2012. FCHR issued its “Notice of Determination: No Cause” and “Determination: No Cause” on May 21, 2013. Petitioner filed her Petition for Relief on June 12, 2013.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations 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 dismiss the Petition for Relief with prejudice. DONE AND ENTERED this 1st day of August, 2014, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of August, 2014.
