The Issue Whether J. Glenn Brown, Jr., was an "employee" of Northwest Florida Community Hospital for purposes of the State of Florida retirement system?
Findings Of Fact The Parties. Petitioner, Board of Trustees of the Northwest Florida Community Hospital (hereinafter referred to as the "Board of Trustees"), is the governing body of the Northwest Florida Community Hospital. Petitioner, Board of County Commissioners of Washington County, Florida (hereinafter referred to as the "County Commissioners"), is the governing body of Washington County, Florida, and the owner of the Northwest Florida Community Hospital. The Respondent, the Department of Management Services, Division of Retirement (hereinafter referred to as the "Division"), is the agency charged with responsibility for administering the Florida retirement system established by Chapter 121, Florida Statutes. Operation of Northwest Florida Community Hospital Prior to February of 1988. The Northwest Florida Community Hospital (hereinafter referred to as the "Hospital"), is a small, rural acute-care hospital located in Chipley, Washington County, Florida. During the mid-1980's, the Hospital suffered from a financial crisis that threatened its continued existence. As a consequence thereof, it was concluded that the Hospital should be sold. A contract was negotiated and entered into for the sale of the Hospital to National Healthcare, Inc. (hereinafter referred to as "NHI"). As a part of the contract entered into with NHI, NHI was to operate the Hospital before the contract for sale was completed. J. Glenn Brown was an employee of NHI. NHI assigned Mr. Brown to the Hospital to act as the administrator of the Hospital. As administrator of the Hospital, Mr. Brown was the top manager of the Hospital. Mr. Brown, while employed by NHI, acted as the administrator of the Hospital from September 1986, until approximately September or October of 1987. At some time prior to February 1988, the contract for sale of the Hospital to NHI was cancelled and the Board of Trustees began to operate the Hospital. The Consulting Contracts. On or about February 1, 1988 the Hospital and Mr. Brown entered into a Consulting Contract (hereinafter referred to as the "First Contract"). Petitioner's exhibit 1. Mr. Brown agreed in the First Contract to operate the Hospital. Mr. Brown operated the Hospital pursuant to the First Contract until its expiration. Although the term of the First Contract ended January 31, 1991, Mr. Brown continued to operate the Hospital. A second Consulting Contract (hereinafter referred to as the "Second Contract"), was entered into on or about May 29, 1992 between Mr. Brown and the Hospital. The Second Contract applied to the period February 1, 1992, through February 1, 1993. Mr. Brown continued to perform services for the Hospital between the end of the First Contract and the beginning of the Second Contract. The differences between the First Contract and the Second Contract (hereinafter referred to jointly as the "Consulting Contracts"), were not substantial other than the amount of the annual fee to be paid to Mr. Brown. The Treatment of Mr. Brown for Purposes of the Florida Retirement System. During the period of time that Mr. Brown operated the Hospital from February 1, 1988 until he departed in the fall of 1992, the Hospital treated Mr. Brown as an "independent contractor" and not an "employee" for purposes of the Florida retirement system. Although the Hospital could have requested a determination of Mr. Brown's status for purposes of the Florida retirement system, the Hospital was not required to do so. The Hospital, as it was authorized to do pursuant to Chapter 121, Florida Statutes, made the initial decision to treat Mr. Brown as an independent contractor. After Mr. Brown had left the Hospital, an audit of the Hospital was conducted by the management review section of the Division. As a result of the audit, the Division raised a question about the status of Mr. Brown for purposes of the Florida retirement system. As a result of the audit of the Hospital, the Division required the Hospital to submit a Florida Retirement System Employment Relationship Questionnaire form requesting a determination of Mr. Brown's status as an employee or independent contractor. The Hospital did so. See Respondent's exhibit 2. The Division reviewed the Questionnaire and determined that Mr. Brown was an "employee" for purposes of the Florida retirement system, and so notified the Hospital. The Hospital filed a request for a formal administrative hearing to contest the Division's determination that Mr. Brown was an employee. Based upon the foregoing, it is the Division that is attempting to change the status quo in this matter. But for the Division's audit and requirement that the Hospital file a Questionnaire, the Hospital's treatment of Mr. Brown as an independent contractor for purposes of the Florida retirement system would have been final. Services to be Provided by Mr. Brown Pursuant to the Consulting Contracts and Mr. Brown's Relationship with the Board of Trustees. Mr. Brown, referred to as the "consultant" in the Consulting Contracts, agreed to provide the following services: 1:1 The Hospital hereby contracts with Consultant to provide services to the Hospital to perform such services as may be necessary to properly and efficiently run the Hospital for the purpose of providing quality healthcare to the citizens of Washington County and a more productive business operation. 1:2 Consultant hereby contracts with the Hospital to perform such services as may be necessary to provide the Hospital advice, expertise and a more efficient and productive business operation. The Consulting Contracts also contained the following provision pertaining to Mr. Brown's operation of the Hospital: 2:1 Consultant agrees to devote such of his time and efforts to the performance of such services as are necessary to perform and achieve the objectives set forth in Article I above. Consultant agrees that he will not directly or indirectly render any service of a business, commercial or professional nature to any other Hospital in Northwest Florida, whether for compensation or otherwise, during the term of this Agreement without the prior written consent of the Board of Trustees of the Hospital. Consultant agrees to comply with the Hospital's policies, rules and regulations as determined from time to time by the Board of Trustees of the Hospital. It was the intent of the Hospital and Mr. Brown that he would act as an independent contractor, and not an employee, in performing the services contemplated by the Consulting Contracts. Mr. Brown was to, and did, provide his services personally. Mr. Brown did not operate through a corporation or other business entity. Between February 1988 and the Fall of 1992, Mr. Brown administered the Hospital in essentially the same manner that he had prior to 1988 while employed by NHI. The Board of Trustees established policies for the operation of the Hospital during the term of the Consulting Contracts. Mr. Brown carried out policies adopted by the Board of Trustees. Mr. Brown was involved in the formulation of policies by the Board of Trustees and he advised the Board of Trustees concerning policies it adopted. The Board of Trustees had little experience in operating the Hospital. The day- to-day operations of the Hospital had been handled by NHI prior to entering into the First Contract. Prior to NHI's operation of the Hospital, the Hospital was administered by Hospital Corporation of America (hereinafter referred to as "HCA"). HCA had operated the Hospital through an employee, Buel Sapp. The Board of Trustees, therefore, relied heavily on Mr. Brown and his expertise in developing polices and for his efficient operation of the Hospital. The manner in which Mr. Brown administered the Hospital was also largely the same as the manner in which the Hospital has been administered by the person who replaced by Mr. Brown. The new administrator has been treated as an "employee" by the Hospital. Training. Mr. Brown was a professional hospital administrator with a number of years of experience operating hospitals, including the Hospital. In light of Mr. Brown's experience, especially at the Hospital, training was not required when Mr. Brown undertook the services contemplated by the First Contract. Integration. The services to be performed pursuant to the Consulting Contacts were integral to the operation of the Hospital. Mr. Brown performed services normally performed by an "administrator" or top manager of any hospital. Manner In Which Mr. Brown Performed Services. Mr. Brown did not hire any assistants or employees to assist him in the performance of the services required by the Consulting Contracts. The Consulting Contracts did not prevent Mr. Brown from using the services of others to carry out the services to be provided. Although Mr. Brown was ultimately obligated to insure that the services contemplated by the Consulting Contracts were provided, the manner in which services required by the Consulting Contracts were to be carried out was not specified. Continuing Relationship. Mr. Brown was required, as a condition of the Hospital entering into the First Contract, to move to Washington County. Pursuant to the First Contract, Mr. Brown was obligated to perform services for the Hospital for a period of four years. The First Contract expired February 1, 1991. The Second Contract obligated Mr. Brown to perform services for the Hospital for a period of one year. The Second Contract was effective February 1, 1992. Mr. Brown continued to perform services for the Hospital between February 1, 1991 and February 1, 1992, although the First Contract had expired and the Second Contract had not yet been entered into. The evidence failed to prove why Mr. Brown continued to perform services for the Hospital between February 1, 1991, and February 1, 1992. Mr. Brown performed services for the Hospital after he left NHI for between 3 and 4 years. Mr. Brown's Working Hours. Mr. Brown's working hours were not specified in the Consulting Contracts. Mr. Brown, therefore, was not legally required to perform services during any set period of time. Mr. Brown generally performed services for the Hospital from the early morning until the early evening. Mr. Brown's hours were consistent with the hours worked by employees of the Hospital. Mr. Brown did not keep time-sheets indicating the hours he worked. Nor did Mr. Brown use, or "punch," a time-clock which employees of the Hospital used. Full-Time or Part-Time Work. Mr. Brown was not required to work any set amount of hours pursuant to the Consulting Contracts. The services expected of Mr. Brown pursuant to the Consulting Contracts reasonably contemplated that Mr. Brown would perform services full- time, only if necessary. The Consulting Contracts also provided that Mr. Brown was not required to perform services on days he attended seminars or meetings to improve his position. The Consulting Contracts also required that Mr. Brown make himself available "for all reasonable meetings, engagements, and any and all other reasonable attempts by the Hospital to promote the Hospital." Mr. Brown did not receive annual or sick leave. Mr. Brown did not work at the Hospital every day of the week. During some weeks, he only worked three or four days. Where Mr. Brown Performed Services. Although not specifically required to do so, Mr. Brown performed the services contemplated by the Consulting Contracts essentially on the premises of the Hospital. In order to effectively administer the Hospital, it was necessary that Mr. Brown be available at the Hospital. Reports from Mr. Brown to the Hospital. Mr. Brown regularly reported to the Board of Trustees and kept the Board informed of his actions. Compensation for Mr. Brown's Services. Pursuant to the First Contract, Mr. Brown was paid an annual fee of $70,555.00. The annual fee was paid biweekly in twenty-six equal installments. Payments were made on the last day of every other week. The annual fee to be paid to Mr. Brown pursuant to the First Contract was agreed upon during negotiations based upon the average salary paid to administrators of similarly sized hospitals who were serving as employees, and adding thereto the amount of withholding tax, retirement contributions and other amounts which would be paid on behalf of an "employee." Had Mr. Brown been hired as an "employee", presumably he would have only been paid an amount based upon the average salary of other employee/administrators. Pursuant to the Second Contract Mr. Brown was paid an annual fee of $98,770.00. The annual fee was paid monthly on the first day of each month and upon the submission of an invoice from Mr. Brown. The Consulting Contracts also provided the following: Consultant hereby acknowledges and agrees that he is an independent contractor individually liable for self employment and all other taxes of any nature due on the fees paid by the Hospital to Consultant. Payments of Mr. Brown's annual fee were made to him by the Hospital out of a separate account and not the Hospital's "payroll" account from which Hospital employees were paid. Payments were made at the same time that Hospital employees were paid. The Hospital also paid for group health insurance for Mr. Brown. Health insurance benefits provided to Mr. Brown were the same benefits provided to Hospital employees. The Hospital also paid for disability insurance for Mr. Brown and a life insurance policy larger than provided to Hospital employees. Mr. Brown's Expenses; Tools and Materials; Investment. Pursuant to the Consulting Contracts, the Hospital paid dues Mr. Brown was required to pay to maintain "membership in applicable organizations or associations deemed necessary for promotion of the Hospital " The Hospital paid expenses incurred by Mr. Brown to attend meetings and seminars on new federal and state health care regulations which impacted the operation of the Hospital. The Hospital paid Mr. Brown a vehicle allowance of $250.00. The Hospital also provided Mr. Brown with an office, furniture, office supplies, a secretary (who was an employee of the Hospital) and with telephone and other services necessary to operate as the administrator of the Hospital. The office provided to Mr. Brown was the office used by the Hospital administrator. Other then Mr. Brown's education, Mr. Brown did not have any substantial investment in his position with the Hospital. Capital investment necessary for Mr. Brown to carry out his duties was provided by the Hospital. Profit and Loss Potential. In light of the fact that Mr. Brown was guaranteed payment for his services and the lack of investment and expenses Mr. Brown was required to provide, there was no reasonable potential Mr. Brown would incur a loss. Mr. Brown operated as an individual. Offer of Services to the General Public. The Consulting Contracts prohibited Mr. Brown from providing his services to others in "Northwest Florida." Mr. Brown was, therefore, free to perform services elsewhere. During the term of the Consulting Contracts, Mr. Brown did perform services for other companies located outside of Florida. Article X of the Consulting Contracts provided, in pertinent part, the following: . . . . Consultant further agrees that he shall not participate, directly or indirectly, individually or as a partner, shareholder, employee, agent, consultant, officer, director or otherwise, in any other business where such participation will in any manner interfere (as reasonably determined by the Board of Trustees and Consultant) with the business of the Hospital or which ultimately, in the final opinion of the Board of Trustees, could result in the integrity of the Hospital being subject to doubt. Right to Terminate Mr. Brown and Mr. Brown's Right to Quit. Pursuant to the Consulting Contracts, the Hospital had the right to terminate Mr. Brown's services for "good cause" as determined by majority vote of the Board of Trustees and "upon sixty (60) calendar days written notice of termination to the Consultant." The Hospital was required, however, to pay Mr. Brown for four months of service. The Hospital also had the right to terminate Mr. Brown's services if he were convicted of a felony, required to take treatment for drug or alcohol abuse, engaged in activity harmful to the reputation of the Hospital or failed to comply with the terms of the Consulting Contract. Mr. Brown was authorized by the Consulting Contracts to terminate his services upon sixty days written notice. The Consulting Contracts provide that the agreement terminated upon the death of Mr. Brown. Weighted Consideration of the Facts. Several of the facts in this case indicate that Mr. Brown was an independent contractor of the Hospital and several of the facts indicate that he was an employee. Based upon a weighted consideration of the facts in this case, it is concluded that Mr. Brown operated as an independent contractor, and not an employee, for the Hospital.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, enter a Final Order concluding that J. Glenn Brown, Jr., was not a compulsory member of the Florida retirement system pursuant to Section 121.051, Florida Statutes. DONE AND ENTERED this 18th day of November, 1993, in Tallahassee, Florida. LARRY J. SARTIN 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 18th day of November, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1635 The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Hospital's Proposed Findings of Fact Accepted in 1. Accepted in 2 and hereby accepted. Accepted in 7-8. Accepted in 28. Accepted in 10. See 11-13 and 38-39. The First Contract expired January 31, 1991, and not January 31, 1992. Accepted in 16 and 24. Accepted in 35. Accepted in 54 and hereby accepted. The last sentence is not relevant. 9 Accepted in 26, 42-43, 52, 57 and 63. Hereby accepted. Accepted in 68. Accepted in 48. Accepted in 50. Accepted in 30-31. Accepted in 3. The Division's Proposed Findings of Fact Accepted in 4-6. Accepted in 7. Accepted in 9 and hereby accepted. 4 Accepted in 10,53-54, 58-59 and 62. Accepted in 28. Accepted in 23. Accepted in 23 and 69. The first sentence is not relevant. 8 Accepted in 41-42, 44, 47, 52-53 and 63. See 41-43 and hereby accepted. Although Ms. Ward did testify consistent with this finding of fact, the testimony was not sufficiently detailed to conclude that Mr. Brown and Mr. Mason provided services in exactly the same manner. Accepted in 61. 12 Accepted in 11-14, 38-39 and 55. Accepted in 14, 25 and 66. Accepted in 23. Accepted in 60-61. See 73. See 53-62. The conclusion on page 10 is not supported by the weight of the evidence. COPIES FURNISHED: Gerald Holley, Esquire Post Office Box 268 Chipley, Florida 32428 William S. Howell, Jr., Esquire Post Office Box 187 Chipley, Florida 32428 Stanley M. Danek, Esquire Division of Retirement Department of Management Services 2639 North Monroe Street, Building C Tallahassee, Florida 32399-1560 A. J. McMullian, III, Director Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Sylvan Strickland, Esquire Department of Management Services Knight Building, Suite 309 Koger Executive Center 2737 Centerview Drive Tallahassee, Florida 32399-0950
Conclusions Having reviewed the administrative complaint dated June 26, 2009, attached hereto and incorporated herein (Exhibit 1), and all other matters of record, the Agency for Health Care Administration ("Agency") has entered into a Settlement Agreement (Exhibit 2) with the other party to these proceedings, and being otherwise well-advised in the premises, finds and concludes as follows: ORDERED: The attached Settlement Agreement is approved and adopted as part of this Final Order, and the parties are directed to comply with the terms of the Settlement Agreement. Filed November 9, 2009 12:00 PM Division of Administrative Hearings. Upon full execution of this Agreement, Respondent agrees to pay $1,875.00 in administrative fines to the Agency within thirty (30) days of the entry of the Final Order. Respondent accepts the assignment of conditional licensure status commencing March 5, 2009 and ending April 14, 2009. A check should be made payable to the "Agency for Health Care Administration." The check, along with a reference to these case numbers, should be sent directly to: Agency for Health Care Administration Office of Finance and Accounting Revenue Management Unit 2727 Mahan Drive, MS #14 Tallahassee, Florida 32308 Unpaid amounts pursuant to this Order will be subject to statutory interest and may be collected by all methods legally available. A conditional license is imposed commencing March 5, 2009 and ending April 14, 2009. Each party shall bear its own costs and attorney's fees. The above-styled cases are hereby closed. DONE and ORDERED this 4-ctay , 2009, in Tallahassee, Leon County, Florida. :a.:,ecretary ealth Care Administration 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. Copies furnished to: Donna Holshouser Stinson, Esq. Attorney for Respondent Broad and Cassel 215 South Monroe Street Suite 400 Tallahassee, Florida 32302 (U. S. Mail) Alba M. Rodriguez, Esq. Assistant General Counsel Agency for Health Care Administration 8350 N. W. 52 Terrace - Suite 103 Miami, Florida 33166 (Interoffice Mail) Finance & Accounting Agency for Health Care Administration 2727 Mahan Drive, MS #14 Tallahassee, Florida 32308 (Interoffice Mail) John G. Van Laningham Administrative Law Judge Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, Florida 32399 Jan Mills Agency for Health Care Administration 2727 Mahan Drive, Bldg #3, MS #3 Tallahassee, Florida 32308 (Interoffice Mail) .. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of this Final Order was served on the above-named person(s) and entities by U.S. Mail, or the method designated, on this the , day of /)yue,,,,--- , 2009. Richard J. Shoop Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Building #3 Tallahassee, Florida 32308 (850) 922-5873 STATE OF FLORIDA
Conclusions THE PARTIES resolved all disputed issues and executed a Settlement Agreement. The parties are directed to comply with the terms of the attached settlement agreement. Based on the foregoing, this file is CLOSED. DONE and ORDERED on this the _,,sl day of ,,0,e:...,:1c6:c:.... -=-o=:....,U=----' 2014, m Tallahassee, Florida. ELIZ , SECRETARY Agency for Health Care Administration AP ARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF ARCA, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BYLAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE AP ARTY RESIDES. REVIEW 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. Theodore E. Mack 3700 Bellwood Dr., Tallahassee, FL 32303 Bureau of Health Quality Assurance 2727 Mahan Drive, Mail Station 9 Tallahassee, Florida 32308 (Interoffice Mail) Stuart Williams, General Counsel Agency for Health Care Administration 2727 Mahan Drive Building 3, Mail Station 3 Tallahassee, Florida 32308 (Interoffice Mail) Shena Grantham, Chief Medicaid FFS Counsel Agency for Health Care Administration 2727 Mahan Drive Building 3, Mail Station 3 Tallahassee, Florida 32308 (Interoffice Mail) Karen Chang, Bureau Chief Medicaid Program Analysis 2727 Mahan Drive Building 2, Mail Station 21 Tallahassee, Florida 32308 (Interoffice Mail) Agency for Health Care Administration Bureau of Finance and Accounting 2727 Mahan Drive Building 2, Mail Station 14 Tallahassee, Florida 32308 (Interoffice Mail) Zainab Day, Medicaid Audit Services Agency for Health Care Administration 2727 Mahan Drive, Mail Station 21 Tallahassee, Florida 32308 (Interoffice Mail) Kristin M. Bigham Office of the Attorney General The Capitol PL - 01 Tallahassee, FL 32399-1050 (Via US Mail) State of Florida, Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (Via U.S. Mail) CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to the above named addressees by U.S. Mail on this theof 14. - ? Richard J. Shoop, Esqmre Agency Clerk State of Florida Agency for Health Care Administration 2727 Mahan Drive, Building #3 Tallahassee, Florida 32308-5403
