Findings Of Fact In 1984, petitioner, Louise Blair, visited the Miami office of respondent, Department of Labor and Employment Security, Division of Vocational Rehabilitation (Division), for the purpose of seeking vocational rehabilitation (VR) services. Through the use of federal funds, the Division provides such services to eligible persons. Although Blair indicated she received various services in 1984 and 1985, Division records produced at hearing reflect she was not formally enrolled as a client until October, 1986. To be eligible for VR services, a person must (a) have a physical or mental disability, (b) show that the disability is a substantial handicap to employment, and (c) show that VR services would reasonably be expected to render that person fit to engage in a gainful occupation. Once a person is certified as eligible for VR services, an individual written rehabilitation program (IWRP) must be prepared by a counselor and approved by the Division. The IWRP identifies, among other things, the determination and achievement of a vocational goal. The IWRP must be reviewed annually, and it remains in effect until services are terminated or the plan is changed. Services may include counseling, medical treatment and grant funds for training in a marketable skill. Blair was classified as eligible for Division assistance due to both physical and mental disabilities. Her IWRP was reduced to writing on October 12, 1986. The plan called for business and clerical training at United Business Institute (UBI) in Miami from October, 1986 through May, 1987. Funds for the UBI tuition had already been obtained by Blair through a student grant and a federal loan program. Blair's long-term goal was to obtain a marketable skill (typing) which could then be used as an employment tool. The specific VR services to be rendered Blair were counseling by a Division counselor, eyeglasses for her failing eyesight, and payment for medication for gastric ulcers. She was also sent on one occasion to Jackson Memorial Hospital in Miami to be examined by an internist. As it turned out, Blair only stayed at UBI for about three weeks. She left because the school furnished inadequate instruction. After Blair complained to the State Department of Education, UBI gave her a full refund of her money. Blair had the money transferred to Barry College (Barry) in Miami where she enrolled as a student for one semester. She reenrolled at Barry for a second semester (spring of 1987) but was late in filling out her application for a student loan. Even though she did not obtain a loan, Blair remained at Barry for the semester without paying tuition. Barry now wants the money owed for tuition and will not allow Blair to re-enroll until it is paid. Blair accordingly requested that the Division pay for her tuition as a VR service. However, applicable federal regulations, which are binding on the Division, do not allow an IWRP to be altered after the fact or for the Division to pay for services after they are rendered. In other words, the Division cannot authorize payment for an educational service after the student has already enrolled at the college. Since Blair was enrolled in Barry before she requested a modification of her IWRP, the Division is prohibited from reimbursing Blair for her tuition. Besides needing prior authorization for a service, a client must also have a psychological evaluation performed to determine if the client would benefit from a college education. In Blair's case, an after-the-fact evaluation was made on May 4, 1988, presumably to assist the Division in countering Blair's claim. The results of the evaluation were not made a part of the record, and the counselor's testimony as to what it said is inadmissible hearsay. However, after meeting with Blair and reviewing her file, Blair's counselor made a recommendation that Blair would not benefit from a college education. At hearing Blair contended that she had a difficult time arranging an appointment to see a counselor and then having a meaningful session to develop an IWRP. This was probably attributable to the fact that her counselor was carrying a case load of 100 active clients at the time. In any event, an IWRP was prepared and signed on October 12, 1986, and was binding on the client. She also contended that she told the counselor that she was attending Barry University before her plan was prepared. Even if this was true, it was still necessary to obtain approval for tuition payment prior to enrolling at the college. Blair did not do this. Therefore, the agency properly denied her request.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that petitioner's request for modification of her IWRP or approval for college tuition payments be denied. DONE AND ORDERED this 20th day of June, 1988, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of June, 1988. COPIES FURNISHED: Ms. Louise Blair 652 Northwest 100th Street Miami, Florida 33150 E. Ellen Winslow, Esquire 131 Montgomery Building 2562 Executive Center Circle East Tallahassee, Florida 32399-2152 Hugo Menendez, Secretary Department of Labor and Employment Security 206 Berkeley Building 2590 Executive Center Circle East Tallahassee, Florida 32399-2152 Steve Barron, Esquire General Counsel 131 Montgomery Building 2562 Executive Center Circle East Tallahassee, Florida 32399-2152
Findings Of Fact On August 19, 1986, Petitioner was licensed as a chiropractor in the State of Florida and was issued license number CH0005434. When Petitioner's chiropractic practice subsequently became insolvent, he considered other possibilities for employment whereby he could use his skills and yet occupy a salaried position. One of the possibilities he considered was becoming a rehabilitation service provider. He contacted the Division of Workers' Compensation of the Florida Department of Labor and Employment Security and discussed with Paul Lincolnhol the requirements for such employment. Lincolnhol specifically told Petitioner, and Petitioner fully understood, that Petitioner could not be licensed as a chiropractor since Section 440.49(1)(b)4.c, Florida Statutes, specifically prohibited licensed chiropractors from being employed as rehabilitation service providers. On November 15, 1990, Petitioner personally appeared at the office of the Board of Chiropractic. He advised an employee as to what he wanted and was told to put his request in writing. On a blank sheet of paper Petitioner wrote the following letter: On this day of 11/15/90, I Philip Whitebook am relinquishing my Florida State license #CH 000 5434 to practice Chiropractic. I am asking you to take back this license and revoke all privelages [sic] associated with it. Petitioner signed that letter and gave it to a Board employee. That employee, pursuant to Petitioner's further request, prepared a letter directed to Paul Lincolnhol. That letter contained a copy of Petitioner's license which reflected an expiration date of December 31, 1991. The letter read as follows: This will advise that Dr. Philip Whitebook (CH 0005434) has voluntarily relinquished his Florida State Chiropractic license effective on this day of November 15, 1990. Petitioner was provided with a copy of the letter to Lincolnhol. By letter dated January 25, 1991, Petitioner was approved by the Division of Workers' Compensation, Florida Department of Labor and Employment Security, as a rehabilitation service provider and was assigned provider number XI0003924. In July of 1992, Petitioner renewed his rehabilitation service provider license which extended the expiration date of that license until June 30, 1994. At some point, the information in the computer of the Florida Department of Professional Regulation, now known as the Department of Business and Professional Regulation, was changed to reflect that Petitioner's license had been placed in a category called "involuntary inactive." On April 9, 1992, the Board sent a notice to Petitioner at his last known address informing him that his chiropractic license had not been renewed as of December 31, 1991, and had therefore automatically expired. That notice further advised Petitioner that if he did not complete the steps necessary to reinstate his license by June 30, 1992, his Florida chiropractic license would become null and void. Petitioner did not receive that letter since the address shown in the Board's records was no longer Petitioner's current address. In October of 1992, a friend of Petitioner who was also a chiropractor, moved to Florida. Petitioner and his friend decided that they would open a chiropractic practice together. On November 7, 1992, Petitioner contacted the Board requesting that his "inactive" license be "reinstated." That was the first contact Petitioner had with the Board after November 15, 1990. By letter dated January 20, 1993, the Board advised Petitioner that his license could not be reinstated since it was null and void by operation of law, pursuant to Section 460.407, Florida Statutes. That letter further advised Petitioner that his recourse was to reapply for licensure and pass the examination. By letter dated February 3, 1993, Petitioner wrote to the Division of Workers' Compensation advising that he was no longer employed as a rehabilitation service provider and was attempting to reactivate his license to practice chiropractic. Although the letter does not so indicate, Petitioner testified that he enclosed his rehabilitation service provider license with the letter, thereby returning his license to the Department of Labor and Employment Security at that time.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Petitioner's request to have his chiropractic license reinstated. DONE and ENTERED this 23rd day of May 1994, at Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of May 1994. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 93-6556 Respondent's proposed findings of fact numbered 1-5 and 7-13 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed finding of fact numbered 6 has been rejected as not constituting a finding of fact but rather as constituting a conclusion of law. COPIES FURNISHED: Philip B. Whitebook, D.C. Post Office Box 15314 Plantation, Florida 33318-5314 Allen R. Grossman, Esquire Assistant Attorney General Office of Attorney General PL-01, The Capitol Tallahassee, Florida 32399-1050 Diane Orcutt, Executive Director Department of Business and Professional Regulation Board of Chiropractic Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0752 Jack McRay, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0752
The Issue Whether or not the Petitioner, Bernice Parr, is entitled to be licensed by the Respondent, Department of Health and Rehabilitative Services, to provide foster care for adults.
Findings Of Fact The Petitioner is a resident of Duval County, Florida. The Respondent is a governmental agency of the State of Florida. This cause comes on for consideration based upon the Petitioner's request for a license to provide foster care for adults and denial of that request by the Respondent. At the time prescribed for the hearing, evidence, to include in-hearing testimony, was entertained by the undersigned. When the parties had concluded their presentations, they were advised of the procedures which would be followed subsequent to the hearing. When this explanation was made, the Petitioner indicated to the undersigned that she had changed her mind about her request for licensure, stating that she did not wish to be licensed as requested, nor to be involved with Respondent on the question of providing foster care for adults in the premises adjacent to her residence. This statement by the Petitioner made at the close of the hearing was treated as a motion by the Petitioner for voluntary dismissal and was unopposed by the Respondent's attorney. Therefore, it will be recommended that the action be dismissed pursuant to the voluntary motion. (This action taken by the undersigned was explained to the Petitioner before this outcome.)
Recommendation In consideration of the foregoing, it is RECOMMENDED: That the petition for licensure to provide foster care for adults be DENIED. DONE and ENTERED this 30th day of August, 1978, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mrs. Bernice Parr Robert M. Eisenberg, Esquire 9029 Galveston Avenue Legal Counsel, HRS District IV Jacksonville, Florida 32211 Post Office Box 2417-F Jacksonville, Florida 32231
The Issue Whether Petitioner is entitled under Florida’s workers’ compensation laws to payment for professional services to an injured worker for the billings identified by the three notices of disallowance at issue in this consolidated proceeding.
Findings Of Fact The claimant, a male, was born July 21, 1961. On February 17, 1995, the claimant sustained a severe traumatic brain injury (TBI) and other injuries during the course of his employment with the City of Hollywood, Florida. At all times relevant to these proceedings, the claimant has been receiving benefits pursuant to the Florida workers’ compensation laws. At all times relevant to this proceeding, the carrier has been the workers’ compensation carrier for the employer. At all times relevant to this proceeding, the claimant has lived in a home purchased for him by the carrier. The claimant has a life estate in the home and the carrier has the remainder interest. The claimant lives in the home with his mother and has 24-hour attendant services paid for by the carrier. The carrier has purchased a van for the claimant, which his attendant uses to transport the claimant to therapy and other appointments. The claimant has a history of mental illness dating to his teenage years, when he was diagnosed with schizophrenia. As a result of his injury and his illness, the claimant acts out periodically and becomes physically resistive to those trying to care for him. At all times relevant to this proceeding, Petitioner has been a provider of rehabilitation services to various patients, including those with TBI. Dr. Marie DiCowden, a psychologist, is the founder and director of Petitioner. Dr. DiCowden described Petitioner as being a health care community that provides an integrated administration for a long continuum of care post acute rehabilitation through community reintegration using health promotion, prevention, and integrated primary care. Petitioner is accredited by two national accrediting organizations referred to by the acronyms CARF (Commission on Accreditation of Rehabilitation Facilities) and CORF (Commission on Outpatient Rehabilitation Facilities). Petitioner is also certified by the Florida Division of Vocational Rehabilitation (formerly housed in the Department of Labor and now housed in the Department of Education), the Florida Division of Workers’ Compensation, and by the Florida Brain and Spinal Cord Injury Program.4 As a result of his accident, the claimant was in a coma for several weeks. He was hospitalized (first in an acute care facility and subsequently in two different rehabilitation hospitals) until December 28, 1995, when he was placed in Whitehall Nursing Home. Whitehall was not an appropriate placement for the claimant because of his behavior and his need for rehabilitation services. On March 27, 1996, Yvonne Beckman, a rehabilitation nurse consultant employed by the carrier, referred the claimant to Petitioner for an evaluation. Shortly before that referral, the claimant had been evaluated by two neuropsychologists (Dr. Jorge A. Herra and Dr. Lee. H. Bukstel), who had opined that the claimant would benefit from rehabilitation services. Ms. Beckman asked Dr. DiCowden to recommend a neurologist who practiced in South Florida. In response, Dr. DiCowden gave Ms. Beckman the names of three neurologists, one of whom was Dr. Paul Wand. Ms. Beckman authorized Dr. Wand to provide services to the claimant. Dr. Wand prescribed continued rehabilitation services for the claimant at Petitioner’s facility. The services at issue in this proceeding were provided by Petitioner pursuant to prescriptions from Dr. Wand.5 Prior to accepting the claimant, Dr. DiCowden informed a representative of the carrier that Petitioner would accept the claimant as a patient in its brain injury program and estimated the annual costs to be $200,000.00. The claimant began receiving rehabilitation services from Petitioner five days a week beginning August 1, 1996. The claimant received from Petitioner’s staff physical therapy, occupational therapy, cognitive retraining, speech training, language training, psychological services, art therapy, music therapy, and yoga therapy. The claimant continued to receive those rehabilitation services from Petitioner (five days a week) from August 1996 to the date of the hearing (and presumably to date). The authorization for the provision of rehabilitation services to the claimant was periodically reviewed by the carrier. In November 1998, the carrier had the claimant examined by Dr. Richard Bailyn (a neurologist) and by Dr. Kevin Lapinski (a neuropsychologist). Those doctors opined that the claimant was not benefiting from cognitive retraining, occupational therapy, speech therapy, or language therapy at Petitioner’s facility. They further opined that the claimant required an activity program to satisfy his recreational and stimulation needs, but that such a program did not require Petitioner’s facility since the claimant’s aide could be trained to provide those services. Dr. Bailyn was of the opinion that as of November 1998 the various therapies provided by Petitioner’s facility to the claimant were not reasonable and were not medically necessary. Section 440.13(6), Florida Statutes, requires a carrier to review bills by providers of medical services as follows: (6) UTILIZATION REVIEW.--Carriers shall review all bills, invoices, and other claims for payment submitted by health care providers in order to identify overutilization and billing errors, including compliance with practice parameters and protocols of treatment established in accordance with this chapter, and may hire peer review consultants or conduct independent medical evaluations. Such consultants, including peer review organizations, are immune from liability in the execution of their functions under this subsection to the extent provided in s. 766.101. If a carrier finds that overutilization of medical services or a billing error has occurred, or there is a violation of the practice parameters and protocols of treatment established in accordance with this chapter, it must disallow or adjust payment for such services or error without order of a judge of compensation claims or the agency, if the carrier, in making its determination, has complied with this section and rules adopted by the agency. As required by Section 440.13(6), Florida Statutes, the carrier conducted a utilization review of the services provided by Petitioner to the claimant beginning in late 1999. The carrier retained Dr. Thomas G. Hoffman to review the claimant’s medical records and to express opinions pertaining to the services provided to him by Petitioner. On April 10, 2000, Dr. Hoffman submitted a report that included several conclusions, including those that follow. The claimant has severe, residual deficits as a result of his accident. He requires 24-hour attendant care. There is no reasonable expectation for further improvement. The therapy he was receiving at that time (and still receives) was not reasonable or medically necessary. The therapy was excessive in frequency and duration. Dr. Hoffman’s deposition testimony was consistent with his written report. The carrier retained Dr. Victor B. Robert to review the claimant’s medical records and to express opinions pertaining to the services provided to him by Petitioner. On June 19, 2000, Dr. Robert submitted a report that included several conclusions, including those that follow. The treatment rendered by Petitioner was excessive in frequency and duration. The claimant reached an improvement plateau in early 1997 and therapy was thereafter needed only for maintenance reasons. Dr. Robert’s testimony was consistent with his written report. The carrier retained International Assessment Systems, Inc. (IAS), a professional association of various medical practitioners, to conduct an independent neurological, neuropsychological, and psychological examination of the claimant. On September 22, 2000, IAS submitted a report (Intervenors’ Exhibit 8) based on the examinations of claimant and the review of his medical records by Dr. Kenneth C. Fischer, Dr. Alan J. Raphael, and Dr. Charles J. Golden. The report included several observations and conclusions, including those that follow. The testimony of Drs. Fischer, Raphael, and Golden was consistent with the written report they prepared for IAS. Pages 12-13 of the IAS report contain the following: [The claimant] was oriented to person, but not to place or time. He did not know the current day, date, month, or year. His sensorium was significantly impaired. His mood was volatile, ranging from normal to agitated. His affect was similarly labile, at times he was placid, laughing, and able to converse at a basic level, however he was also quite violent. Attention and concentration were significantly impaired. His receptive, expressive and fluency language capabilities were similarly impaired, although, as noted, he was capable of basic/functional [sic] communication. There were no direct indications of hallucinatory or delusional phenomena, however, based on his behavior, it is likely that some hallucinatory or delusional phenomena were present. His reality testing and insight were significantly impaired. During his repeated fits of anger, he often uttered suicidal and homicidal threats, however there was no evidence of actual intent or plan. He showed no ability to monitor his own safety. Page 15 of the IAS report contains the following: From a neuropsychological and psychological perspective, there were gross impairments noted in his cognitive abilities and emotional functioning. . . . He has been afforded considerable time to maximize his cognitive recovery at this point. It is clear that he has plateaued with regard to cognitive improvement. He will not benefit from continued rehabilitation efforts, although he will require continued stimulation to avoid further cognitive decline. His mood and labile affect may also be benefited by continued stimulation in terms of recreational activities to provide appropriate quality of life.6 Page 17 of the IAS report contains the following under the heading “Neurologic Impression”: . . . I [Dr. Fischer] would recommend that he be placed in a supervised residential setting which will give better protection for him and his caregivers than his present home setting. As the patient is four and a half years status post-injury, specific rehabilitative and therapeutic endeavors will have no benefit and are unwarranted. This would relate to hyperbaric oxygen and cognitive rehabilitation was well as any form of physical, occupational, or speech therapies. Page 19 of the IAS report contains the following: [The claimant] was certainly aided by initial removal from the nursing home and receiving cognitive and physical therapies at Biscayne. However, he has long since reached a plateau in his improvement and no further improvement can be expected at this time. Maximum medical improvement should have been reached within 18 to 24 months post-injury. Any treatment after that time would be palliative or maintenance-oriented (sic). Therefore, the treatment prescribed by Dr. Wand became unreasonable and medically unnecessary several years ago. Page 20 of the IAS report reflects the opinion that while the treatments at Petitioner’s facility were excessive in all respects, the claimant does require maintenance rehabilitation services. It is opined that cognitive retraining is no longer appropriate, but that cognitive tasks and games are appropriate in a recreational setting. By letter dated October 27, 2000, the carrier, through its counsel, advised Petitioner that based on its Utilization Review investigation, it had concluded that as to the identified dates of service “. . . there has been overutilization and/or misutilization since the treatment has been excessive and not medically necessary.” This Letter of Disallowance was the first of a series of letters sent by counsel for the carrier to Petitioner, and frames the issues for all of the disallowances at issue in this proceeding. Thereafter, Petitioner timely disputed the carrier’s basis for disallowing its services to the claimant and petitioned the Respondent to resolve the dispute. The total amount disallowed and at issue in this consolidated proceeding is $615,587.00. Respondent employed four Expert Medical Advisors (EMAs) to perform peer review and assist it in resolving the dispute involving the rehabilitation services provided the claimant by Petitioner. Respondent employed Dr. Fernando G. Miranda, Dr. Jorge Villalba, Dr. Gerard P. Garcia, and Dr. David McCraney to serve as EMAs.7 Each of these doctors prepared a report following his review and each sat for deposition. Dr. Miranda’s report, dated September 17, 2001, is attached to his deposition (Intervenors’ Exhibit 17). The report included several conclusions, including those that follow. The referral for intensive multi-disciplinary treatment at Petitioner’s facility is no longer medically necessary. The services provided by Petitioner are excessive in frequency and duration and he will not further improve with speech therapy, cognitive retraining, occupational therapy, or individual psychotherapy. Maintenance physical therapy is recommended. Dr. Miranda testified in his deposition that the recommended physical therapy could be performed by the claimant’s attendant. Dr. Miranda’s deposition testimony was consistent with his written report. Dr. Villalba’s report dated October 15, 2001, is attached to his deposition (Intervenors’ Exhibit 19). The report included several conclusions, including those that follow. The claimant reached maximum medical improvement between February 1996 and October 1997. Dr. Villalba described the services provided by Petitioner to claimant “clearly not medically necessary” after October 1997. He also opined that the claimant will require maintenance physical therapy, occupational therapy, and speech and language therapy on a continuing basis. Dr. Villalba’s deposition testimony was consistent with his written report. Dr. Garcia’s undated report was prepared during the second week of October, 2001, and is attached to his deposition (Intervenors’ Exhibit 16). The report included several conclusions, including those that follow. The claimant should be on a maintenance program and Petitioner’s treatment was excessive. The claimant is unlikely to make further neuropsychological improvement, but he should be treated by a psychiatrist for his schizophrenia. Dr. Garcia’s deposition testimony was consistent with his written report. Dr. McCraney’s report dated November 18, 2001, is attached to his deposition (Intervenors’ Exhibit 18). The report included several conclusions, including those that follow. While the care provided Petitioner appears to be excellent, the claimant is far beyond the point where Petitioner’s therapies would be reasonable or medically necessary. Dr. McCraney’s deposition testimony was consistent with his written report. Dr. DiCowden testified at length about the various services her facility provides the claimant and the records her staff generates as a result of those services. Dr. DiCowden testified that her staff is well-trained in assessing the functional status of rehabilitation patients using nationally recognized assessment methodologies. FIN-FAM, acronyms for “Functional Independence Measures” and “Functional Assessment Measures” is one assessment measure used by Petitioner’s staff. The FIN-FAM measure purports to quantify a patient’s progress or lack thereof and can be used by staff as a tool in developing treatment strategies. Dr. DiCowden presented a chart of the FIN-FAM scores for the claimant for the periods at issue in this proceeding. The chart, prepared for this litigation, reflects steady functional improvement of the claimant. Dr. DiCowden further testified that Petitioner’s staff uses a scale of cognitive functioning developed by a rehabilitation facility known as Rancho Los Amigos Hospital, which measures a patient’s response to stimuli on a scale of Ranch Level I (no response) to Ranch Level VII (appropriate response). She asserts that the measurement of the claimant’s status using the Rancho methodology reflect that the claimant has improved over the years. In support of its position that the claimant steadily progressed while undergoing therapy at its facility, Petitioner presented the testimony of Drs. Antonio Puente, Vernando Batas, and Richard Kishner who observed the claimant at Petitioner’s facility on June 23, 2003, September 13, 2003, and February 24, 2004, respectively. Each of these witnesses had the subjective impression that the claimant was benefiting from therapy at Petitioner’s facility. Petitioner asserts that the FIN-FAM scores, the Rancho Levels, and the testimony of its experts establish that the claimant is benefiting from therapy. That assertion is rejected as being contrary to the greater weight of the credible evidence. The FIN-FAM scoring and the Rancho scale depend on the subjective impressions of the various therapists who treat the claimant at Petitioner’s facility and the record reflects that the scoring was done on an irregular basis.8 Dr. DiCowden adamantly disagreed with the contention that the rehabilitation services provided by her facility is not reasonable or medically necessary. All evidence presented by Petitioner, including Dr. DiCowden’s testimony, has been carefully considered by the undersigned in resolving the conflicts in the evidence. At best, Petitioner established that the claimant made some unquantified amount of progress in the highly structured therapeutic setting at Petitioner’s facility. Intervenors’ experts clearly established that any progress made by the claimant in therapy did not transcend that therapeutic setting to the real world. Petitioner failed to establish by a preponderance of the evidence that the rehabilitation services it provided the claimant were appropriate and medically necessary. To the contrary, the greater weight of the credible evidence established that at all times relevant to this proceeding the rehabilitation services provided by Petitioner to the claimant have been excessive and that those excessive services have been neither reasonable nor medically necessary.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration issue a final order that sustains the disallowances at issue in this consolidated proceeding. DONE AND ENTERED this 15th day of June, 2004, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of June, 2004.
The Issue The issue is whether Petitioner's request for an exemption from disqualification from employment in a position of special trust should be granted.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: This case involves a request by Petitioner, Sylvan L. Stahl, Jr., for an exemption from disqualification from employment in a position of special trust. If the request is approved, Petitioner's wife would be allowed to operate a child day care center in her home, a position she is now barred from holding because her husband has a disqualifying offense and lives in the same household. Respondent, Department of Children and Family Services (DCFS), is the state agency charged with the responsibility of approving or denying such requests. In a preliminary decision entered on February 13, 1998, a DCFS committee denied the request. Petitioner is now barred from employment in which he would have contact with children because of a disqualifying offense which occurred in September 1989. At that time, Petitioner was arrested in Citrus County, Florida, for the offense of armed robbery, a felony under Chapter 812, Florida Statutes (1989). Although the documents pertaining to the offense were not made a part of this record, Petitioner established that in September 1989, he attempted to rob a bank with a firearm. Under a plea bargain arrangement with the prosecutor, he pled guilty to the charge and was sentenced to four and one-half years in prison, to be followed by ten years of supervised probation. Petitioner served only the three-year mandatory minimum sentence, and he then successfully completed his probation after only three years. No person was injured during the incident. After being released from prison, Petitioner worked for three years with a pallet firm owned by his father, rising to the position of supervisor. During his three-year tenure with the firm, Petitioner increased the size of the company from five to twenty employees. For the last six months or so, Petitioner has been employed by Emergency One, an Ocala firm which manufactures fire trucks. He also has a second job with his brother-in-law's landscaping firm. The two jobs require that Petitioner begin his work day at 7:00 a.m. and that he continue working until 1:30 a.m. Petitioner's wife intends to operate a small day care center out of the family home. It is fair to infer that due to Petitioner's lengthy working hours, he will spend little, if any, time at his home while the children are entrusted to his wife's care. Since his arrest and plea of guilty almost nine years ago, Petitioner has had no other blemishes on his record. He has been steadily employed since 1994 in positions of responsibility. Petitioner is married to a minister's daughter, has a young child, and has recently purchased a new home. Letters received in evidence corroborate the testimony of him and his wife that he will pose no threat to children if the exemption is granted. Petitioner expressed remorse for his actions in 1989, calling his conduct "stupid," and indicating he was "confused" at that time. Given his continuous employment history, good conduct during his shortened probation period, stable family life, and the time elapsed since the disqualifying offense, it is found that Petitioner is sufficiently rehabilitated to justify granting the exemption.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Children and Family Services enter a final order granting Petitioner's request for an exemption from disqualification from employment in a position of special trust. DONE AND ENTERED this 14th day of May, 1998, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 1998. COPIES FURNISHED: Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204Z 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard A. Doran, Esquire Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Sylvan L. Stahl, Jr. 11848 Southeast 71st Avenue Road Belleview, Florida 34420 Ralph J. McMurphy, Esquire Department of Children and Family Services 1601 West Gulf Atlantic Highway Wildwood, Florida 34785
The Issue The issue is whether Petitioner is qualified to take the examination for licensure as a mental health counselor.
Findings Of Fact Petitioner executed an application for licensure as a mental health counselor on June 13, 1989. He filed the application with the Board of Clinical Social Workers, Marriage & Family Therapists, and Mental Health Counselors on July 6, 1989. The application was accompanied by the appropriate fee and disclosed that Petitioner satisfied all of the educational requirements for taking the examination. However, Respondent determined that the application was incomplete because Petitioner failed to show that he had had the requisite clinical experience under the supervision of a qualified person. By letter dated July 17, 1989, Respondent informed Petitioner that his application was incomplete pending receipt of, among other things, documentation of the requisite clinical experience under the supervision of a qualified person. A second letter dated January 17, 1990, from Respondent to Petitioner restated that the application was still missing the items set forth in the prior letter. By Order of Intent to Deny filed April 12, 1990, Respondent informed Petitioner that it was denying his application on the grounds set forth above. Petitioner obtained a master's degree in clinical psychology from the University of Central Florida on December 20, 1985. From October 4, 1985, through October 20, 1988, Petitioner worked full- time as a psychological specialist at the Polk Correctional Institution under the supervision of Gerd Garkisch, Ph.D., who was head of the mental health department at the prison. Petitioner's work qualifies as clinical experience in mental health counseling. Dr. Garkisch does not hold any Florida professional licenses, such as a mental health counselor or psychologist. He is not so licensed in any other state, although he is licensed as a psychologist in Puerto Rico. Dr. Garkisch does not meet the education criteria required for licensure as a mental health counselor. Dr. Garkisch earned a master's degree in clinical psychology, which would otherwise satisfy the educational requirement for licensure as a mental health counselor. However, he received his degree from the Pontifical Catholic University of Rio Grande do Sul, Institute of Psychology, which is located in Brazil. The school is not accredited by an accrediting agency approved by the U.S. Department of Education, Council on Postsecondary Accreditation, or Association of Universities and Colleges of Canada.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Professional Regulation deny Petitioner's application for licensure as a mental health counselor. ENTERED this 11th day of October, 1990, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 11th day of October, 1990. COPIES FURNISHED: Kenneth E. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Linda Biederman, Executive Director Board of Mental Health Counseling 1940 North Monroe Street Tallahassee, FL 32399-0792 Vytas J. Urba, Staff Attorney Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Suresh Paul Pushkarna, pro se 309 Hidden Hollow Court Sanford, FL 32773
Findings Of Fact In his application for licensure dated September 6, 1990, Petitioner answered question 7 pertaining to conviction of a crime in the affirmative, and submitted an attached list showing: Hammond, Louisiana, February 1977. Possession of marijuana with intent to distribute. Guilty plea, one year sentence. Tallahassee, Florida, November 30, 1977. Possession of marijuana: Guilty plea. One year sentence. Tallahassee, Florida, November 30, 1977. Possession of marijuana and conspiracy to possess marijuana with intent to distribute. Ten year sentence to be served concurrently. Tallahassee, Florida, September 11, 1986. Failure to appear. Guilty plea. Five year sentence, to be served consecutively. Tallahassee, Florida, December 19, 1986. Possession of marijuana with intent to distribute. Guilty plea. Eight year concurrent sentence. I served a total of 61 months in federal prison of an aggregate 15 year sentence from March 27, 1986 to August 3, 1990. Petitioner's FBI rap sheet shows: Arrested 2/22/77 arrested and charged in Louisiana with possession of marijuana with intent to distribute. Arrested 11/4/77 Pensacola on charge of conspiracy to possess with intent to distribute marijuana. Sentence 60 months confinement, $15,000 fine. Arrested 3/27/86 on charge of failure to appear. Arrested 5/26/86 on charge of unlawful possession of marijuana. Sentence one year confinement. Arrested 11/21/86 on charge of possession with intent to distribute marijuana. Sentence 8 year confinement. Following his conviction on November 30, 1977, Petitioner was released on bail and failed to appear for sentencing. He remained a fugitive until he was apprehended on 3/27/86 and incarcerated in a federal correction institution. The 6/25/86 entry on the rap sheet relates to the 1977 convictions and five year sentence Petitioner failed to serve. Petitioner correctly included all convictions on his application for licensure. While serving his 15 year accumulated sentence, Petitioner decided to turn his life around. During his last three years in prison, Petitioner took college courses and correspondence courses in real estate (Exhibit 2). Petitioner received a three month credit on his presumptive parole date for superior program achievement; specifically: completed vocational training in electronics; completed an extension course in real estate appraisal; and completed an associate degree in real estate appraisal. Petitioner's sister, who testified in these proceedings, is a real estate broker and encouraged Petitioner to study for and enter the real estate field. While in federal prison, Petitioner received a Jaycees Presidential Award of Honor in June 1988 in acknowledgment of his support in community fund raising projects. Subsequent to his release from prison on August 3, 1990, Petitioner worked as an assistant in two real estate offices, served as a volunteer handler of search dogs used in law enforcement and search and rescue missions, worked with the guardian ad litem program and with project PET where he takes dogs into nursing homes to serve as temporary pets for elderly patients. Although Respondent is on five years probation and will be eligible for release from parole in 1993, he has complied with all terms of his parole, including the monthly payments on the fine assessed against him. Petitioner exhibited a sincere interest in working in the real estate field and has at least two real estate firms willing to employ him as a salesman once he is licensed.
The Issue The issue in this case is whether Respondent, Jeffrey R. Baxter (Mr. Baxter) is eligible for vocational training and education at Petitioners’ expense to allow for him to return to suitable gainful employment.
Findings Of Fact The Department of Financial Services, Division of Workers’ Compensation, is the agency of the state of Florida charged with administration of medical care coordination and reemployment services that are necessary to assist employees injured in the workplace to return to suitable gainful employment. Mr. Baxter was, at the time of the hearing, 45 years of age. During the periods relevant to this proceeding, he was five feet, seven inches in height, and his weight ranged from 285 to 307 pounds. Mr. Baxter was employed by Ring Power as a mechanic from June 2006 until July 2011. In July, 2008, Mr. Baxter suffered a non-compensable injury while at home. He was seen by Dr. Phil Riddlehoover, a primary-care orthopedist practicing with The Orthopaedic Institute, who noted that Mr. Baxter complained of a sudden onset of lower-back, left buttock, and left hip pain. Dr. Riddlehoover related that Mr. Baxter had experienced similar back pain problems on several occasions over the past “couple of years,” for which he received chiropractic treatment. Mr. Baxter related to Dr. Riddlehoover that he had some lessening of pain with the chiropractic treatments, but still had significant limitation of range of motion and spasm. During his examination, Dr. Riddlehoover noted that Mr. Baxter had “marked limitation of range of motion in flexion and extension as well as side-to-side rotary movements.” An X- ray was taken, which showed minimal osteophyte formation in the lumbar spine, with well-maintained vertebral body heights and normal disk spaces. Dr. Riddlehoover’s assessment was low back pain, for which he recommended physical therapy for three weeks, prescribed medications, and “encouraged . . . light duty activity.” Based on stipulated facts submitted by the parties, the following findings are made: Mr. Baxter was involved in a compensable work- related accident while employed with the employer, Ring Power, on or about September 18, 2008. Petitioners accepted the September 18, 2008, work- related accident as compensable and provided medical treatment for same. Mr. Baxter was treated by Dr. Edward Samby, an authorized treating physician, for the September 18, 2008, work- related accident. On October 7, 2008, Dr. Samby opined that Mr. Baxter had reached MMI as a result of the September 18, 2008, workplace accident with a zero percent PIR. At that time, Dr. Samby released Mr. Baxter to full duty with no restrictions. Despite the foregoing stipulated facts, there is not an iota of competent substantial evidence in the record of this proceeding of the nature of the September 18, 2008, work-related accident, whether it involved or affected Mr. Baxter’s back, or whether it has any bearing whatsoever on any issue in this proceeding. Therefore, other than the bare stipulations, no findings regarding that purported accident are or can be made. On August 24, 2010, Mr. Baxter suffered a workplace injury that was determined to be compensable under the Florida Workers’ Compensation Act. Mr. Baxter’s injury was to his lower back. On September 16, 2010, Mr. Baxter was again seen by Dr. Riddlehoover. Dr. Riddlehoover related that Mr. Baxter experienced a sudden onset of lower-back discomfort while lifting and twisting a heavy object that was exacerbated when he twisted. Dr. Riddlehoover noted that Mr. Baxter “has a significant history of low back pain complaints within the last two to three-year time frame.”1/ Dr. Riddlehoover noted limitation to Mr. Baxter’s range of motion and tenderness to palpation. X-rays of Mr. Baxter’s back were taken in the office, and compared to previous X-rays. Dr. Riddlehoover noted that there was “a transitional vertebra at L5,” and in comparison with previous X-rays, there was “some loss of disk space height at L5-S1 with some scoliosis of the endplates. There are also some small posterior osteophytes that seem to have developed at L4-5 and L5-S1 as well.” Mr. Baxter was thereupon placed on light-duty status, and referred for physical therapy. On October 7, 2010, Mr. Baxter had a follow-up visit with Dr. Riddlehoover. Mr. Baxter stated that he had no improvement from his physical therapy, though Dr. Riddlehoover noted that “[i]t seems as though the physical therapy note that accompanies him from Health Works indicates to the contrary.” Since Mr. Baxter continued to complain of intermittent sharp pains, Dr. Riddlehoover ordered a MRI “as there seems to be a discrepancy as far as what the patient is reporting with his low back pain and what the physical therapist is reporting.” Physical therapy was discontinued. On October 8, 2010, Mr. Baxter underwent a MRI of his lumbar spine. The MRI, as interpreted by Dr. Riddlehoover, showed a disk herniation at L4-5, and a disk bulge at L5-S1. He determined the most significant problem was related to the disk bulge at L5-S1. Dr. Riddlehoover referred Mr. Baxter for a series of epidural steroid injections. By November 9, 2010, Mr. Baxter reported modest improvement from the epidural injections. Dr. Riddlehoover decided to wait three to four weeks in order to determine whether Mr. Baxter was responding to treatment. Mr. Baxter was provided with a note reiterating his work limitations. On December 2, 2010, Mr. Baxter reported to Dr. Riddlehoover that he continued to show improvement. Dr. Riddlehoover referred him for a repeat epidural injection, and refilled his medication prescription. On February 2, 2011, Dr. Riddlehoover reported that Mr. Baxter continued to have ongoing discomfort in his back that required continued use of narcotic analgesics. Dr. Riddlehoover further reported that Mr. Baxter was “unable to do a hard days labor and place high demands on his back without serious discomfort.” He refilled Mr. Baxter’s medication prescription, and referred Mr. Baxter to Dr. Troy Trimble, an orthopedic surgeon practicing with The Orthopaedic Institute, to determine his suitability for surgical relief. On March 9, 2011, Dr. Trimble diagnosed Mr. Baxter with low back pain to the left leg, lower thorasic right side back pain, and morbid obesity. He recommended physical therapy, medication refills, and possibly a L3 selective nerve block. He suggested that Mr. Baxter’s symptoms would improve with aggressive physical therapy and weight loss, and concluded that Mr. Baxter was not a surgical candidate. Dr. Riddlehoover relied upon Dr. Trimble’s report in the development of his opinions. At some time prior to March 25, 2011, Mr. Baxter suffered a separate back injury that occurred while he was getting out of a truck. It resulted in a sudden onset of discomfort that caused him to go to an emergency room. The emergency room referred Mr. Baxter back to Dr. Riddlehoover for further evaluation and management. By the time of his visit with Dr. Riddlehoover on March 25, 2011, the discomfort from that injury was completely gone. Dr. Riddlehoover placed Mr. Baxter at MMI with a PIR of zero percent for that claim, but noted that Mr. Baxter was to follow up with him to assess his consultation with Dr. Trimble. On April 26, 2011, Mr. Baxter followed up with Dr. Riddlehoover, continuing to complain of lower-back discomfort from time-to-time. Dr. Riddlehoover extended physical therapy for an additional period of four weeks, and refilled Mr. Baxter’s medication prescription. On June 1, 2011, Mr. Baxter returned to Dr. Riddlehoover, and indicated no improvement with his lower- back and spine pain after six weeks of physical therapy. Dr. Riddlehoover referred Mr. Baxter back to Dr. Trimble for further assessment as to whether he was an operative candidate, and refilled Mr. Baxter’s medication prescriptions. On June 9, 2011, Ring Power determined it was no longer able to employ Mr. Baxter within the light duty restrictions assigned by Dr. Riddlehoover, and therefore terminated his employment. On June 20, 2011, Dr. Trimble reevaluated Mr. Baxter. He again diagnosed Mr. Baxter with lower-back pain to the left leg, and noted evidence of L5-S1 disc degeneration. Dr. Trimble reiterated that Mr. Baxter was not a surgical candidate, and recommended pain management and weight loss. On June 29, 2011, Mr. Baxter returned to Dr. Riddlehoover, who thereupon placed Mr. Baxter at MMI and assigned a seven percent PIR. Dr. Riddlehoover assigned permanent work restrictions that allowed Mr. Baxter to lift no more than 10 pounds, and instructed Mr. Baxter to follow up as needed. As to the cause of the disk abnormalities, Dr. Riddlehoover testified that “I can only assume that [the herniation and bulge] were related to the workplace accident because I had no prior MRIs.” Dr. Riddlehoover concluded that the workplace injury was the major contributing cause of the PIR, based upon the history of the injury; his reading of the October 2010, MRI results; and subsequent treatment. The PIR and work restrictions were not based on a functional-capacity examination or other objective measure, but relied entirely on Mr. Baxter’s relation of his subjective impression as to what he could withstand without discomfort. On August 31, 2011, Mr. Baxter requested vocational screening from DOE. In mid-2011, DOE vocational rehabilitation funding was cut. Thereafter, processing of applications for vocational training and education, including that of Mr. Baxter, was slowed. In the Medical Update Questionnaire that accompanied his request for vocational screening, Mr. Baxter noted that he had completed all medical treatment, but requested a second opinion. On January 5, 2012, at Mr. Baxter’s request, he was evaluated by Dr. Troy Lowell, a board-certified orthopedic surgeon. Dr. Lowell reviewed Mr. Baxter’s 2010 X-ray and MRI, and performed a physical examination. Although Dr. Lowell testified that he did not recall having seen any X-ray other than that taken in 2010, his office visit report indicates that Mr. Baxter “presents with x-rays from that time,” and that “[c]ompared to 2008 films there is no significant change.” Mr. Baxter told Dr. Lowell that he had experienced back pain since 2008. However, Dr. Lowell was unaware of the accident that occurred in 2008 or, seemingly, of the earlier incidents of lower-back pain previously related by Mr. Baxter to Dr. Riddlehoover. Dr. Lowell analyzed the 2010 MRI, and saw no evidence of the disk herniation noted by Dr. Riddlehoover. Rather, his reading of the MRI showed a slight degenerative bulge at L4-5, and severe degenerative disk disease at L5-S1. Dr. Lowell concluded that the severe degenerative disk disease at L5-S1 was the cause of Mr. Baxter’s ongoing symptoms. Dr. Lowell testified that that it was possible that an injury occurring prior to 2010 could have led to the observed degree of degenerative disk disease in 2012, but that he did not have sufficient information to draw a conclusion as to whether the 2008 injury in particular was the cause. However, he was confident that the level of degeneration could not have resulted from a 2010 traumatic injury. Based on his office examination and review of the X- ray and MRI, Dr. Lowell placed Mr. Baxter at MMI and assigned a zero percent PIR. His assignment of a zero percent PIR was based on his understanding that Mr. Baxter may have had “an exacerbation of symptoms as a result of his work injury,” but that there was no objective evidence of any worsening or aggravation of the preexisting condition, nor was there any evidence of any new injury resulting from the August 24, 2010, workplace accident. In Dr. Lowell’s opinion, it is Mr. Baxter’s preexisting, severe degenerative disk disease that prevents his ability to work at his previous position and duties. At about the time that Dr. Lowell’s report was received, DOE staff was advised that section 440.491 was likely to be repealed during the 2012 legislative session. In response, DOE did nothing to advance any training and education screenings or referrals. Section 440.491 was not repealed during the 2012 legislative session. Rather, duties and responsibilities for the administration of training and education screenings, reemployment assessments, vocational evaluations, and reemployment services that had been the responsibility of the DOE were transferred to the Department. The transfer of duties from DOE to the Department was approved on April 20, 2012, but did not become effective until July 1, 2012. DOE personnel did not act on requests for retraining in the interim because they did not want to obligate funds to be applied to the Department’s budget after the transfer of responsibilities. Given the disruption that resulted from the transfer of duties and staff to the Department, a vocational evaluation for Mr. Baxter was not arranged until October 2012. The vocational assessment of Mr. Baxter was performed on November 2, 2012, by Karla Wooten, pursuant to a contract with the Department. The evaluation resulted in the submission of a Vocational Evaluation Final Report to the Department on November 20, 2012. The Final Report recommended that Mr. Baxter be afforded the opportunity to continue his education through the Computer Information Technology, A.S.-degree program at Florida Gateway College. On December 3, 2012, the Department issued its notice approving vocational education, which determined that the best way to return Mr. Baxter to suitable gainful employment was through the Computer Information Technology, A.S.-degree program at Florida Gateway College. When it made its decision, the Department had the office-visit evaluation reports from Dr. Riddlehoover and Dr. Lowell, along with the information submitted with the Request for Screening and the completed forms and file materials from USIS. The Department accepted Dr. Riddlehoover’s assessment of Mr. Baxter’s injury as carrying more weight because he had seen Mr. Baxter on 10 occasions going back to his 2008 injury, and had authorized treatments over an eight to ten- month period. Ring Power and USIS filed a petition disputing the Department’s notice of approval on the basis that Mr. Baxter does not meet the qualifications for retraining. The vocational education program itself was not disputed. On December 18, 2012, Mr. Baxter was again seen by Dr. Lowell. The visit was apparently non-eventful, as Dr. Lowell had no memory of it until presented with his report at his April 16, 2013, deposition. However, the report indicated no change in Mr. Baxter’s symptoms, and resulted in no change of his diagnosis or opinion. There is no question but that Dr. Riddlehoover was more familiar with Mr. Baxter’s symptoms as a result of his multiple office visits. However, testimony of Dr. Riddlehoover and Dr. Lowell regarding the cause of those symptoms, i.e., disk herniation versus disk degeneration, was based entirely on their reviews of the same MRI and X-rays. Dr. Riddlehoover had been practicing orthopedics for six years at the time of his May 7, 2013, deposition testimony. He is not board certified in any area. His residency was in family practice, and his professional experience prior to his October 2007, association with The Orthopaedic Institute in Lake City, Florida, was exclusively as an Emergency Department Physician. Dr. Lowell has specialized in orthopedics for the entirety of his professional career. He has been certified since 1996 in orthopedic surgery by the American Board of Orthopaedic Surgery. Dr. Lowell has published and presented on topics directly related to issues relevant to this proceeding, including disk herniations and epidural steroid treatments. To be clear, the undersigned in no way discounts or denigrates Dr. Riddlehoover’s record of medical training, experience, and service, which appears to be exemplary. However, based on Dr. Lowell’s depth of specialized knowledge, and the substance and certainty of his testimony regarding the cause of Mr. Baxter’s inability to continue working at his previous level of exertion, the undersigned accepts Dr. Lowell’s conclusion that Mr. Baxter’s medical condition is the result of degenerative conditions that predate the workplace injury as being the most persuasive evidence on that issue.
Recommendation Upon consideration of the above findings of fact and conclusions of law, it is RECOMMENDED that the Department of Financial Services, Division of Workers’ Compensation, enter a final order determining that Respondent, Jeffrey R. Baxter, is not eligible for reemployment services at Petitioners’ expense. DONE AND ENTERED this 3rd day of July, 2013, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 3rd day of July, 2013.
Findings Of Fact At all times material hereto, Petitioners were inmates incarcerated at Union Correctional Institution in Raiford, Florida. As of the date of final hearing in this cause, Petitioner Durham was classified as "close" custody pursuant to Rule 33-6.09, Florida Administrative Code. Although Petitioner Durham's reclassification questionnaire score was initially five points, which would have qualified him for classification as "medium" custody, Respondent used the override provision contained in Rule 33-6.09 to classify Petitioner Durham as "close" custody by virtue of his poor institutional adjustment. Petitioner Adams was likewise classified as "close" custody at the time of final hearing. Petitioner Adams' numerical score on the inmate reclassification questionnaire would have classified him as "medium" custody, but the override provisions of Rule 33-6.09 were utilized in Mr. Adams' case to reclassify him as "close" custody by virtue of the fact that his sentence expiration date is 1990, and at the time of his reclassification he had not served 20 percent of his sentence. Petitioner Piccirillo was classified as "medium" custody at the time of final hearing. His numerical score on his inmate reclassification questionnaire was three points, which would have qualified him for "minimum" custody had this score not been overridden by virtue of the fact that Petitioner Piccirillo escaped from Department of Corrections custody on November 17, 1979, while in a minimum custody setting. Petitioner Farrell was classified as "minimum" custody at the time of final hearing in this cause, and his presumptive parole release date is set for July 24, 1984. It was stipulated at final hearing in this cause that none of the policy and procedure directives challenged in this cause had been promulgated by Respondent as rules, pursuant to the requirements of Section 120.54, Florida Statutes. It is also apparent from the face of the various challenged policy and procedure directives that they have statewide applicability at all institutions administered by the Department of Corrections. On or about May 6, 1977, the Secretary of the Department of Corrections issued Policy and Procedure Directive No. 4.07.22, which was subsequently revised on November 30, 1979. This directive is entitled "Reclassification and Progress Reports," and purports to be issued pursuant to the authority contained in various sections of Chapters 921, 944, 945, and 947, Florida Statutes, and Chapter 33-6, Florida Administrative Code. Petitioners in this cause challenge two sections of this directive as unpromulgated rules. The first of these is contained in Section X, entitled "Sources of Information," which provides as follows: It is essential that Progress Reviews Reports be accurate, concise and usable. Compiling up-to-date information to go into the report is as important as writ- ing the report. The following source of information should be utilized by the Classification Team in compiling information for the report. Various evaluation Reports (verbal or written) to include work super- visors, medical, dental, education, recreation, quarters, religious, per- sonal observations, etc Nowhere in either the cited chapters of the Florida Statutes or Chapter 33-6, Florida Administrative Code, are there any specific requirements for information to be considered by the Classification Team in compiling an inmate progress report. Department personnel utilized the above quoted section of the challenged directive in preparing reports on inmate progress. The second section of Policy and Procedure Directive 4.07.22 challenged in this proceeding is XVI, entitled "Recommendations for Parole or Pre-Parole Work Release," which provides as follows: The Department may in selected cases recom- mend to the Florida Parole and Probation Commission that an inmate be placed on parole or pre-parole work release. How ever, note should be made of an inmate's Presumptive Parole Release Date(PPRD) when considering such possibilities. If it is felt that such significant progress has taken place since the setting of the PPRD that it should be moved forward to an earlier date, then such recommendations should be made to the Parole Commission in a full Progress Report setting forth the basis for recommending a change in the PPRD. If at the time of the Progress Review/Report the team does not see the justification in recommending the PPRD be changed then no comment will be required. All reports contaning [sic] parole or pre-parole work release recommendations will be reviewed and signed by the Classification Supervisor and forwarded to the Superintendent for his concurrence or disapproval. The Superintendent will indicate his decision by placing his signature on the appropriate line of the block to be added at the close of the Progress Report format. Upon approving a parole or pre-parole work release recommendation, the Superintendent will prepare a cover letter of endorsement which will be attached to the normal distribution of the Progress Report and for warded directly to the Parole Commission. The above-quoted language from Section XVI of Policy and Procedure Directive No. 4.07.22 is virtually identical to the language contained in Rule 33-6.09(7)(m) , Florida Administrative Code. On or about September 30, 1977, the Secretary of the Department of Corrections issued Policy and Procedure Directive 4.07.31, entitled "Community Study and Volunteer Service." This directive purports to be issued pursuant to the authority contained in Section 945.091, Florida Statutes, and Chapter 33-9, Florida Administrative Code. Petitioners in this cause challenge as rules the following provisions contained in Section III, entitled "Selection": C. The Classification Team should determine if the inmate meets criteria for eligi- bility described in the Program Directive Community Services Programs. When com- parable study programs are available at the institution, community study should not be considered. On-the-job training programs which are limited in scope are not considered comparable. The educational personnel of the Depart- ment should be Particularly involved in referring inmates for community study since they are in a position to evaluate the inmate's desire, ability, and past performance in the education program. The educational personnel will ensure the availability of the requested course of study or training prior to Classification Team action. Inmates considered for community study must have financial assistance from one or more of the following sources for tuition, books and clothing: Vocational Rehabilitation Veterans benefits Personal finances Committed support by the inmate's family Approval for a government grant Proof of financial support must accompany each application. Inmates are not to borrow money from any university, college or private organiza- tion for the purpose of financing their education. Nowhere in either Section 945.091, Florida Statutes, or Chapter 33-9, Florida Administrative Code, are the above-cited requirements of Policy and Procedure Directive 4.07.31 contained. On or about April 27, 1977, the Secretary of the Department of Corrections issued Policy and Procedure Directive No. 4.07.40, which was subsequently revised on March 10, 1982. This directive, entitled "Community Work Release general Policies and Procedures" purports to be issued pursuant to the authority contained in Section 945.091, Florida Statutes, and Chapter 33-9, Florida Administrative Code. Petitioners in this cause challenge as an umpromulgated rule Section IXB of the directive which provides, in pertinent part, as follows: The Department will permit consideration for work release 18 months prior to release. However, normally such consideration will be given within the last nine months prior to the presumptive parole release date or expiration or[sic] sentence. Should special cases arise which warrant attention prior to the nine months remaining, consideration will be given on an individual basis when there appears[sic] to be appropriate reasons for such. Special cases must be recommended by the Classification Team, approved by the Superintendent and Regional Director, and then forwarded to the Central Office where a Special Review Committee will make the final decision. . . . (Emphasis added) The underlined portion of Section IXB quoted above appears nowhere in either Section 945.091, Florida Statutes, or in Chapter 33-9, Florida Administrative Code. On or about November 30, 1979, the Secretary of the Department of Corrections issued Policy and Procedure Directive No. 4.07-90, entitled "Inmate Participation in Outside Activities." This directive purports to be issued pursuant to authority contained in Section 945.21, Florida Statutes. Petitioners in this cause challenge as an umpromulgated rule Section IV of the directive, entitled "Distance Limitations," which provides as follows: The following distance limitations are established as maximums but may be reduced by the Superintendent: Travel to attend civic or religious meeting except the annual statewide meetings will be limited to 100 miles one way. Travel for fund raising projects will be limited to 35 miles one way. Travel to all statewide meetings will be approved by the Regional Director with concurrence of Assistant Secretary of Operations. Nowhere in Section 945.21, Florida Statutes, nor in validly adopted rules of Respondent do the specific requirements contained in Policy and Procedure Directive No. 4.07.90 appear. On or about January 25, 1980, the Secretary of the Department of Corrections issued Policy and Procedure Directive No. 4.07.42, which was subsequently revised on February 26, 1982. This directive, entitled "Furlough Procedures," purports to be issued pursuant to authority contained in Section 945.091, Florida Statutes, and Chapter 33.9, Florida Administrative Code. Petitioners in this cause challenge the entirety of this directive as an unpromulgated rule. The directive establishes a special review team to review furlough applications; makes Florida furlough procedures applicable to federal inmates in interstate compact cases placed with the department; establishes types of furloughs which may be granted; establishes eligibility criteria for selecting inmates for furloughs; sets time and distance limitations for furloughs; establishes the maximum number of furloughs for which inmates may be eligible; establishes verification requirements; establishes clothing requirements while inmates are on furlough; establishes types of transportation available for inmates on furlough; establishes release and check-in procedures; and, finally, establishes a procedure for termination of furloughs in the event of a violation of a furlough agreement. None of the specific requirements contained in Policy and Procedure Directive No. 4.07.42 are contained in either Section 945.091, Florida Statutes, Chapter 33-9, Florida Administrative Code, or any other properly promulgated rule of the Department of Corrections.
