Findings Of Fact Petitioner was a career service employee of Respondent at all times pertinent to these proceedings. Petitioner failed to report to work as scheduled on April 8, 11, 12, 13 and 14, 1988. Petitioner was absent from work without authorized leave for more than three consecutive work days. Petitioner was aware that after an unauthorized absence from work for three consecutive work days Respondent would consider her to have abandoned her position and to have resigned from the career service employment system of the State of Florida. Petitioner was duly notified by Respondent that she had been deemed to have abandoned her position.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered by the Department of Administration concluding that Petitioner abandoned her position in the career service due to her failure to report to work, or request leave for the period of April 8-14, 1988. DONE AND ENTERED this 28th day of September, 1988, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 28th day of September, 1988. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by Respondent. Petitioner did not submit proposed findings. RESPONDENT'S PROPOSED FINDINGS Adopted in finding 1. Addressed in finding 2. Addressed in finding 3. 4.-5. Addressed in findings 3-5. COPIES FURNISHED: Larry D. Scott, Esquire Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Kimberly L. Thomas 15025 Southwest 106th Avenue Miami, Florida 33176 Vernon L. Whittier, Jr., Esquire Department of Transportation 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 Adis Vila Secretary Department of Administation 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Kaye N. Henderson, P.E. Secretary Department of Transportation (Attn: Eleanor F. Turner, M.S. 58) Haydon Burns Bldg. Tallahassee, Florida 32399-0450
The Issue The issue is to determine the amount payable by Petitioner, Devin F. Price (“Petitioner”), to Respondent, Agency for Health Care Administration (“AHCA”), out of the $3,025,000 gross personal injury settlement proceeds, as reimbursement for past Medicaid expenditures pursuant to section 409.910, Florida Statutes.
Findings Of Fact On August 20, 2019, Petitioner was catastrophically injured when the motorcycle he was operating collided with an automobile. In this accident, Petitioner suffered a traumatic brain injury, multiple fractures to his upper and lower extremities, a degloving injury to his right arm, and injury to his lower left arm. Petitioner had multiple surgeries as a result of the accident. He is now unable to use his right arm and has only limited use of his left hand. Petitioner’s medical care related to the injury was paid by Medicaid. Medicaid, through AHCA, provided $215,250.64 in benefits, and Medicaid, through a Medicaid Managed Care Organization known as WellCare of Florida, provided $11,625.08 in benefits. The sum of these benefits, $226,875.72, constituted Petitioner’s entire claim for past medical expenses. Petitioner pursued a personal injury action against the parties allegedly liable for his injuries (“Defendants”) to recover all his damages. Because of issues pertaining to liability and limited insurance coverage that was available, Petitioner’s personal injury action was settled through a series of confidential settlements in a lump-sum unallocated amount of $3,025,000. During the pendency of Petitioner’s personal injury action, AHCA was notified of the personal injury action and AHCA asserted a $215,250.64 Medicaid lien against Petitioner’s cause of action and settlement of that action. AHCA did not commence a civil action to enforce its rights under section 409.910 or intervene or join in Petitioner’s action against Defendants. By letter, AHCA was notified of Petitioner’s settlement. AHCA has not filed a motion to set-aside, void, or otherwise dispute Petitioner’s settlement. The Medicaid program, through AHCA, spent $215,250.64 on behalf of Petitioner, all of which represents expenditures paid for Petitioner’s past medical expenses. Petitioner’s taxable costs incurred in securing the settlement totaled $65,366.96. Application of the formula in section 409.910(11)(f) to Petitioner’s $3,025,000 settlement requires payment to AHCA of the full $215,250.64 Medicaid lien. Petitioner has deposited the (11)(f) formula amount in an interest- bearing account for the benefit of AHCA pending an administrative determination of AHCA’s rights, and pursuant to section 409.910(17), this constitutes “final agency action” for purposes of chapter 120, Florida Statutes. At the hearing, Petitioner presented the expert testimony of attorney Jeanmarie Whalen, who represented Petitioner throughout the underlying action against the Defendants. Ms. Whalen has been an attorney for 30 years and devotes a substantial portion of her practice to plaintiff’s personal injury and bad faith cases. She is a partner with the law firm of Domnick Cunningham and Whalen, P.A., in Palm Beach Gardens, Florida. Ms. Whalen is a member of numerous trial attorney associations, including the Florida Justice Association, Palm Beach County Justice Association, and the American Association for Justice. Ms. Whalen serves as a member of the Board of Governors with both the Florida Justice Association and the American Association for Justice, and routinely lectures throughout Florida and the nation regarding civil litigation matters. Ms. Whalen has successfully handled jury trials, and stays abreast of jury verdicts on other personal injury cases in her area. Ms. Whalen frequently represents plaintiffs who have been catastrophically injured in motorcycle accidents. As a routine part of her practice, Ms. Whalen makes assessments concerning the value of damages suffered by her clients. She is very familiar with, and routinely participates in, allocation of settlements in the context of health insurance liens, workers’ compensation liens, Medicare set-asides, and the reduction of jury verdicts by trial judges post-verdict. As lead attorney on Petitioner’s case, Ms. Whalen was familiar with the circumstances surrounding Petitioner’s injury, claims, and current condition, and gave a detailed explanation of them. Ms. Whalen met with Petitioner on many occasions; reviewed Petitioner’s medical records; a life care plan, which details Petitioner’s future medical needs; and an economist's report, which calculated the present value of Petitioner’s future medical care and present value of Petitioner’s lost future earnings. Based upon Petitioner’s life care plan summary and the economist report, Ms. Whalen testified that the probable present value of Petitioner’s past lost wages and future earnings is $1,660,380, and that the present value of future medical expenses is $2,686,295. According to Ms. Whalen, the past medical expenses of $226,875.72 would also be added to arrive at the full value of Petitioner’s economic damages. Ms. Whalen testified that in addition to economic damages, a jury would also be asked to assign a value to past and future noneconomic damages (i.e., pain and suffering and loss of enjoyment of life). Ms. Whalen testified that Petitioner’s claim for noneconomic damages would be significant and “dwarf” the total value of all economic damages because Petitioner would make a very good witness and had a strong story. Ms. Whalen persuasively and credibly testified that the total value of all of Petitioner’s damages would be in excess of $10,000,000, and that valuing Petitioner’s damages at $10,000,000 is a very conservative and low valuation of his damages. Using the pro rata allocation methodology, Ms. Whalen persuasively and credibly testified that the $3,025,000 settlement did not fully compensate Petitioner for the full value of his damages, and that based on a conservative value of all of Petitioner’s damages of $10,000,000, the $3,025,000 settlement represents a recovery of 30.25 percent of the value of his damages. Ms. Whalen persuasively and credibly testified that because Petitioner only recovered in the settlement 30.25 percent of the full value of his damages, he only recovered 30.25 percent of his $226,875.72 claim for past medical expenses, or $68,629.90, and that it would be reasonable to allocate $68,629.90 of the settlement to past medical expenses. Petitioner also presented the expert testimony of R. Vinson Barrett. Mr. Barrett has been a trial attorney for over 43 years and is a partner with the law firm of Barrett Nonni Homola & Ferraro, P.A., in Tallahassee, Florida. His practice is devoted to plaintiff’s personal injury and wrongful death cases. He has handled cases involving catastrophic injury and routinely handles jury trials. He is a member of the Florida Justice Association and the Capital City Justice Association. Mr. Barrett is familiar with reviewing medical records, life care plans, economist reports, and preparing and evaluating plaintiff’s personal injury cases for trial. Mr. Barrett testified that as a routine part of his practice, he makes assessments concerning the value of damages suffered by injured parties and he explained his process for making these assessments. Mr. Barrett testified that it has been part of his law practice to, and he is familiar with, settlement allocation in the context of health insurance liens, Medicare set-asides, and workers’ compensation liens. He further testified that he is familiar with the process of allocating settlements in the context of Medicaid liens and he described that process. Mr. Barrett has been accepted as an expert in the valuation of damages and has testified regarding the pro rata methodology in numerous Medicaid Third-Party Reimbursement (“MTR”) administrative hearings at DOAH. In addition, Mr. Barrett’s expert testimony at DOAH was quoted with approval in Eady v. Agency for Health Care Administration, 279 So. 3d 1249 (Fla. 1st DCA 2019). Prior to testifying, Mr. Barrett familiarized himself with the facts and circumstances of Petitioner’s injuries. He reviewed Petitioner’s medical records, exhibits, the economist's report, and testified regarding the nature and extent of Petitioner’s injuries. Mr. Barrett testified that the full value of Petitioner’s economic damages for loss of earning capacity and future medical expenses is in the range of $5,963,801 to $7,435,147, and that Petitioner’s claim of noneconomic damages would have a significantly high value. Mr. Barrett persuasively and credibly testified that the full value of Petitioner’s damages exceeded $10,000,000, and that valuing Petitioner’s damages at $10,000,000 is conservative and a low valuation of his damages. Using the pro rata allocation methodology, Mr. Barrett persuasively and credibly testified that the $3,025,000 settlement did not fully compensate Petitioner for the full value of his damages, and that based on a conservative value of all of Petitioner’s damages of $10,000,000, the $3,025,000 settlement represents a recovery of 30.25 percent of the value of his damages. Mr. Barrett persuasively and credibly testified that because Petitioner only recovered in the settlement 30.25 percent of the full value of his damages, he only recovered 30.25 percent of his $226,875.72 claim for past medical expenses, or $68,629.90, and that it would be reasonable to allocate $68,629.90 of the settlement to past medical expenses. AHCA did not call any witnesses, present any evidence as to the value of damages, propose a different valuation of the damages, or present evidence contesting the methodology used by the Petitioner’s experts to calculate the $68,629.90 allocation to past medical expenses. The testimony of Petitioner’s expert witnesses regarding the value of the case and the use of the pro rata methodology was not persuasively rebutted or contradicted by AHCA’s counsel on cross-examination, or by any other evidence. In sum, Petitioner proved by clear and convincing evidence that 30.25 percent is the appropriate pro rata share of Petitioner’s past medical expenses to be applied to determine the amount recoverable by AHCA in satisfaction of its Medicaid lien. Following Ms. Whalen’s and Mr. Barrett’s methodology and applying the $10,000,000 valuation to the total past medical expenses of $226,875.72, the settlement portion properly allocable to Petitioner’s past medical expenses to satisfy AHCA’s lien is $68,629.90 ($226,875.72 x 30.25 percent = $68,629.90).
The Issue Whether Petitioners are liable for the payment of amounts set forth in Respondent's Notice of Assessment for fiscal fund years 1977-78, 1979-80, 1980- 81, and 1981-82, dated November 9, 1984, pursuant to Chapter 768, Florida Statutes. This proceeding arose as a result of petitions filed by two groups of hospitals contesting Notice of Assessment issued by the Department of Insurance on November 9, 1984, based upon the certification by the Board of Governors of the Florida Patient's Compensation Fund to the Insurance Commissioner of a deficiency in the amount of money available to pay claims for the 1977-78, 1979- 80, 1980-81, and 1981-82 fiscal Fund Years. The proposed assessment seeks payment of the alleged deficiency in the total amount of some 57 million dollars from health care providers who were members of the Fund during the fund years in question, pursuant to Section 768.54, Florida Statutes. Two groups of hospitals subsequently filed petitions contesting the proposed assessment. They consist of Tallahassee Memorial Regional Medical Center and 42 other hospitals (Case No. 34-4398), and Southeast Volusia Hospital District and 64 other hospitals (Case No. 85-4399). A third petition was filed by Miami General Hospital, Inc. shortly before the final hearing herein (Case No. 85-0992). The three cases were consolidated for hearing. An additional petition filed by Harborside Hospital was merged with the petition of Tallahassee Memorial Regional Hospital, et al. Mount Sinai Medical Center of Greater Miami, Inc., one of the petitioners in Case No. 84-4398, filed a "Supplemental Petition" raising additional disputed issues, including the question of whether the Department of Insurance was required to consider the impact of the loss of Medicare reimbursement on individual member hospitals in allocating the proposed assessment to such hospitals. Intervention as a party respondent was granted to the Florida Patient's Compensation Fund. By prehearing orders, it was determined that questions involving Medicare reimbursement, the setting of fees for various classes of health care providers, and the repeal of the "statutory cap" by Chapter 83-206, Laws of Florida, amending Section 768.54, Florida Statutes, were not properly in issue in this proceeding. The parties entered into a prehearing stipulation that set forth certain agreed facts. However, Respondents reserved the right to object to their relevance or materiality. Such of the agreed facts as are deemed relevant are included hereinafter. The following issues of law remain for determination: Whether the Fund and the Department properly applied Section 768.54, Florida Statutes, in certifying and approving a deficit and assessment for each of the subject Fund years based on the reserving practices and procedures employed by the Fund; particularly: (a) in failing to adjust or write down reserves to reflect the amounts of known settlements and verdicts, plus accrued interest as of the certification date. (b) by the manner in which claims supervisors and the claims committee for the Fund posted or set reserves on individual cases. (c) in that the reserves set by the Fund on known cases are redundant. Whether the Fund and the Department properly applied the $15 million maintenance cap with respect to the actual assessment for each Fund Year. At the hearing, Petitioners presented the testimony of Lee M. Smith, who was accepted as an expert in actuarial science, and Catherine M. Sims, Administrative Manager of the Florida patient's Compensation Fund. Additionally, petitioners submitted deposition testimony of Michael Rinehart, Administrator for Automobile and General Liability Claims for the Division of Risk Management, Department of Insurance, and excerpts of prior testimony of John W. Odem. Petitioners submitted 16 exhibits in evidence which are numbered according to the exhibit list contained in the Prehearing Stipulation. Respondents presented the testimony of Ms. Sims, Charles Portero, Claims Manager of the Florida Patient's Compensation Fund, who was accepted as an expert in claims handling and reserving practices, and Jerome Vogel, an actuary with the Department of Insurance who was accepted as an expert in that field. Respondents also submitted the deposition testimony of Ward Johnson, Vice President of Claims for Alexsis Risk Management, and James O. Wood, a Consultant Actuary employed by Tillinghast, Nelson and Warren, Inc. Respondents submitted 18 exhibits, including supplemental excerpts of the prior testimony of John W. Odem and Michael Rinehart. Respondents' exhibits also follow the numbers set forth in the Prehearing Stipulation, except for exhibits which were not listed therein. At the conclusion of the hearing, certain of Respondents' answers to Petitioners' request for admissions were received in evidence. Certain other answers were proffered, as were a number of Petitioners' exhibits, as reflected on the record. The parties have submitted proposed recommended orders that have been fully considered. All matters therein have been ruled on directly or indirectly herein, except for proposed findings of fact that have been rejected as subordinate, cumulative, immaterial, or unnecessary.
Findings Of Fact The Florida Patient's Compensation Fund (Fund) is established under Chapter 768, Florida Statutes, for the purpose of paying claims against member health care providers, including hospitals, in amounts exceeding statutory limits which must be maintained by the health care provider as primary coverage. The Fund is operated subject to the supervision and approval of a Board of Governors which consists of members representing the insurance industry, the legal and medical professions, hospitals and the general public. Annually, each health care provider electing to become a member of the Fund pays certain fees established by statute for deposit into the Fund. Each fiscal year of the Fund operates independently of preceding fiscal years and participants are only liable for assessments for claims from years during which they were members of the Fund. If the Fund determines that the amount of money in an account for a given fiscal year is insufficient to satisfy claims, it certifies the amount of projected excess or insufficiency to the Insurance Commissioner with a request that he levy an assessment against Fund participants for that fiscal year. Subsection 768.54(3)(c), Florida Statutes (1981), which was the statutory language applicable during all fund years in question, provides that the Insurance Commissioner shall levy such assessment against the participants in amounts that "fairly reflect the classifications prescribed above and are sufficient to obtain the money necessary to meet all claims for said fiscal year." For all years at issue in this proceeding, a statutory limitation was in effect on the amount physician members of the Fund could be assessed. Petitioner hospitals were members of the Fund during one or more of Fund Years 1977-78, 1979-80, 1980-81, and 1981-82 (Stipulation). Each month, the Administrative Manager of the Fund follows a prescribed procedure to determine if an assessment is required for a particular Fund Year, utilizing what is termed a "retrospective rating plan." The plan provides that assessments will not be levied in any year until the cash available for paying claims in that membership year is down to 33 percent of the loss and expense reserves for all known losses. It further provides that the amount should be sufficient to create enough cash flow to pay known reserved claims for the year showing such deficit. In reviewing the Fund's monthly financial report of March 31, 1984, it was determined that a sufficient deficit existed to warrant the levy of an assessment. Thereafter, an outside audit of the Fund accounts was conducted and presented to the Fund Board for certification. At a meeting of the Fund Board of Governors on May 12, 1984, the Board approved the verifications that assessments had been triggered for the 1978, 1980, 1981, and 1982 fiscal years and voted to submit the deficit certification to the Insurance Commissioner for assessment. Thereafter, by letter of May 23, 1984, the proposed assessment was certified to the Insurance Commissioner. (Respondents' Exhibits 2 a, b, c, 4-5, 7, 9, 17; Testimony of Sims.) Prior to the issuance by the Department of an assessment order, the 1982 Fund Year triggered an additional deficit in excess of nine million dollars. The Fund's Board of Governors, at their October 25, 1984 meeting, accepted the audit substantiating the need for the additional amount to be added to the 1982 Fund Year assessment. On November 9, 1984, the Department issued a Notice of Assessment for Fund Years 1977-78, 1979-80, 1980-81, and 1981-82. The Notice of Assessment announced that the Insurance Commissioner intended to levy and authorized the Fund to collect an assessment in accordance with the Fund's certification of deficits as follows: 1977-78 Membership Year $ 7,467,603.00 1979-80 Membership Year 3,952,812.00 1980-81 Membership Year 18,448,460.00 1981-82 Membership Year 16,154,699.00 (amount certified May 23, 1984) 1981-82 9,047,785.00 (amount certified October 29, 1984) The Notice of Assessment of November 9, 1984, further provided that the assessment shall be divided among the various classes of health care providers for each year as follows: CLASS OF HEALTH CARE PROVIDERS AMOUNT OF ASSESSMENT Class 1977-78 1979-80 1980-81 1981-82 Physicians & Surgeons (a) Class 1 0 0 0 $ 1,370,677 (b) Class 2 0 0 0 1,974,946 (c) Class 3 0 0 0 6,476,422 2. Hospitals 7,467,603 3,924,941 18,309,420 14,668,665 3. HMO 0 9,764 44,203 97,207 4. Ambulatory Surg. Center 0 18,107 94,837 38,555 5. Professional Assoc. 0 0 0 576,012 The notice further provided that each health care provider that was a member of the Fund during one or more of the specified Fund Years shall pay a pro rata portion (based on premium paid) of the total amount assessed against the class of health care providers for each year of which the health care provider was a member. It further stated that each health care provider failing to pay its share of the assessment within 21 days of date of receipt of the order or its publication in the Florida Administrative Weekly, whichever date is earlier, shall pay an additional amount in interest of 12 percent per year. (Respondents' Exhibits 3 a-d, 6, 11-12, Stipulation, Testimony of Sims.) The Fund used the same procedure in preparation of Certification to the Department in this fifth assessment since the inception of the Fund as it used in the first four assessments. The Department used the same procedure and methodology (indicated rate method), in allocating the assessment among the various classes as it used in the first four assessments. The Fund levies assessments based on the amount needed to pay known claims. Usually, the Fund becomes aware of a claim by service of process incident to a civil action. The Fund's reserves are estimates of the amount needed to pay known claims. The Fund follows standard industry reserving practices, as modified in several respects by its particular needs and procedures. Each claim is assigned to a claims supervisor who obtains information concerning the claims incident from the primary insurance carrier. The initial reserve on a claim is based on a variety of factors, including the type of injury, potential damages, liability considerations, geographic location, and the particular attorney for the claimant. After a determination that a reserve is needed on the file, the claims supervisor makes an initial determination of the amount which is referred to the claims manager for approval. Final approval of the posted reserve lies in the hands of the Claims Committee of the Fund. The figure is usually fixed at a sum for which it is believed that the claim could be settled and the potential liability arising from a jury verdict. The necessity of obtaining approval of the Claims Committee for the initial reserve and any subsequent changes creates a certain amount of delay in obtaining such decisions. Changes may be effected in the reserve when injuries are found to be greater than anticipated, or because of the discovery of additional facts affecting potential liability. It is not unusual for a particular claim to be submitted three or four times to the Claims Committee before it is settled. In recent years, the Fund has not had sufficient cash available to pay all the required settlements or verdicts due to the lack of ability to collect prior assessments which have been in litigation. The Fund has found that such delays have increased the settlement value of claims, and plaintiffs unwilling to wait for payment of a settlement amount have gone on to trial and obtained verdicts in excess of what the case could have been settled for if the funds had been available. The reserve for a particular case is normally adjusted following settlement or verdict within a period of approximately 90 days. Although such an adjustment includes anticipated interest, interest is not taken into consideration in setting initial reserves. Past experience has shown that a lag time of about two years will elapse before funds are available to pay settled claims and, accordingly, interest is projected for a substantial period when reserves are adjusted. (Testimony of Portero.) Although individual claims have been found to be "over-reserved" at a particular point in time, it is also true that other claims are sometimes "under-reserved." The setting of reserves is based upon past experience and is necessarily subjective to a certain extent. As indicated above, changes in the status of a claim may require an increase or decrease in the amount of reserve. Additionally, a number of claims settled shortly before certification of the deficit for the assessment herein reflected that the Fund did not reduce the reserves to the amount of settlement prior to the certification dates. Several such instances were brought to the attention of the Fund in a claims audit made by an independent firm in March 1984. However, the audit report also noted that although the claims staff recognized the potential of large exposure claims, the Claims Committee was not allowing them to set a sufficient reserve on the "million dollar plus exposure claims." The auditor found that overall, the file reserves were in line by the time a case went to trial, but that the reserves could probably have been established more promptly if traditional claims handling procedures had been employed. The report found that there were many cases of reserve requests being made by the claims personnel which were turned dawn or drastically cut by the Claims Committee, and recommended that the claims staff should be allowed to set the reserves to properly reflect the exposure that the claim had at the time the file is examined. It was the opinion of the individual who conducted the claims audit, Ward W. Johnson, Vice President Of Claims, Alexsis Risk Management Services, Inc., that the number of cases that were under-reserved exceeded the cases that had potential of being over- reserved. He was of the further opinion that generally the Fund did a "good job of reserving." (Respondents' Exhibits 13, 23, (Deposition of Ward Johnson); Petitioners' Exhibits 23, 58.) Conflicting expert testimony and statistical data concerning the reasonableness of the Fund's reserving practices in general and for the Fund Years in question were presented by the parties at the hearing. Based on the totality of the evidence presented, it is found that the Fund's procedures conform generally to standard insurance industry practices. Although there is evidence as indicated heretofore that individual cases have been both "over- reserved" and "under-reserved," and that required adjustments to reserves have not always been made in a timely manner, the evidence does not show that the reserves as a whole or as to the instant assessment are unreasonable. (Petitioners' Exhibits 10-13, 62-63; Respondents' Exhibits 13, 18, 20-24; Testimony of Wood (deposition), Johnson (deposition), Vogel, Smith, Portero, Rinehart (deposition), Odem (prior testimony).) It is further found that the present assessment was prepared in accordance with standard procedures, that the amounts proposed to be levied as an assessment for each Fund Year in question represent a deficiency in the Fund Account for such years, and that the proposed allocations of such amounts among the specified health care providers are appropriate. (Respondents' Exhibits 2- 3, 5-7, 9, 11-12, 17, 29; Joint Exhibit 1 (Stipulation) testimony of Sims, Vogel.) 12. During Fund Years 1979-80, 1980-81, and 1981-82, Section 768.54, Florida Statutes, provided that the Fund shall be "maintained" at no more than $15 million per fiscal year. There was a $25 million maintenance cap applicable to Fund Years prior to 1979-1980. The limitation was removed by statutory amendment in 1982 (Chapter 82-236, Laws of Florida). Petitioners contend that the present assessment exceeds the $15 million "can" for Fund Years 1980-81 and 1981-82, but failed to submit competent substantial evidence to support such contention. The Fund apparently used the limitation as applicable to membership fees and not to assessments. The letter of the Fund to the Department, dated May 23, 1984, certifying the assessment, stated in part as follows: During the 1981-82 membership year the Fund's membership fees exceeded the $15 million cap and, by your Order, the excess was returned to those members. We are requesting that your Order of Assessment for the 1982 membership year include an Order for the overage refunds to be repaid to the Fund. In any other respects, the Fund did not take the monetary limitation into consideration with regard to the present assessment. (Petitioners' Exhibit 24; Respondents' Exhibit 2b; Testimony of Sims, Vogel.)
Recommendation In view of the foregoing, it is recommended that a final order be entered by the Department of Insurance levying assessments in accordance with the Notice of Assessment, dated November 9, 1984, for the Fund Years specified therein. DONE and ENTERED this 9th day of May, 1985, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of May, 1985. COPIES FURNISHED: Honorable William Gunter Treasurer and Insurance Commissioner The Capitol Legal Division Tallahassee, Florida 32301 William C. Owen and Doug Hall, Esquires Carlton, Fields, Ward, Emmanuel, Smith and Cutler Post Office Drawer 190 Tallahassee, Florida 32302 Cathi C. O'Halloran, Esquire Pennington, Wilkinson and Dunlap Box 3985 Tallahassee, Florida 32315-0985 James Wing, Esquire Myers, Kenin, Levingson, Frank and Richards 1428 Brickel Avenue Miami, Florida 33131 Louis F. Robinson, III, Esquire Barnett and Alagia 250 South County Road Suite 201 Palm Beach, Florida 33480 David A. Yon and Dennis S. Silverman, Esquires Department of Insurance Legal Division Room 413-B Larson Building Tallahassee, Florida 32301 E. Clay McGonagill, Jr., Esquire 241 East Virginia Street Tallahassee, Florida 32301
Findings Of Fact On January 26, 1979 Dr. Eduardo A. Liriano was licensed to practice medicine in the State of Florida by endorsement as provided in Section 458.313, Florida Statutes. At the time of his request for an application for such licensure and at the time his certificate to practice was issued Dr. Liriano was informed that Section 458.313, Florida Statutes requires him to begin practicing medicine in the State of Florida within three years for a minimum period of one year and to give notice that he has fulfilled this requirement to the Petitioner. Petitioner has received no notice from Dr. Liriano that he has met the foregoing terms and conditions of his licensure. On October 20, 1981 Petitioner sent correspondence to Dr. Liriano indicating that his license file failed to disclose any information to substantiate his compliance with the foregoing terms and conditions. Subsequently on November 20, 1981 Petitioner again sent the same correspondence to Dr. Liriano, this time by certified mail, to his home address of 115 Dyer Court, Norwood, New Jersey. A certified mail receipt indicates that Dr. Liriano signed for that correspondence on February 9, 1982. No explanation for the delay between mailing and receipt appears in this record. Because Dr. Liriano had failed to respond to the Board's inquiries about his fulfillment of the terms and conditions for his licensure the Board on February 12, 1982, entered an Order declaring his license void. By a letter received at the Board on February 26, 1982, Dr. Liriano requested the instant proceedings. In his request for proceedings he noted that he was looking forward to the possibility of moving to Florida and keeping his license active until he made a final decision. Subsequent to the forwarding of this case to the Division of Administrative Hearings an Order dated March 16, 1982 was entered by the Hearing Officer. That Order required the parties to inform the Hearing Officer of the estimated length of time necessary to conduct the final hearing and to suggest a location most convenient for the parties and witnesses. No response to that Order was received from Dr. Liriano. On May 10, 1982 the instant proceedings were noticed for October 7, 1982, at 10:00 a.m., in Tallahassee, Florida. The final hearing commenced at 10:20 a.m., after the Petitioner and the Hearing Officer waited twenty minutes for the appearance of Dr. Liriano. He did not appear. From the foregoing it is found that Dr. Liriano has not used his license to actively engage in the practice of medicine in the State of Florida within three years from January 26, 1979. Furthermore, he has failed to demonstrate that he has been in the military service of the United States during that time.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Board of Medical Examiners enter a Final Order declaring void and of no force and effect, Dr. Liriano's license. DONE and RECOMMENDED this 8th day of October, 1982, in Tallahassee, Florida. MICHAEL P. DODSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of October, 1982. COPIES FURNISHED: Chris D. Rolle, Esquire Assistant Attorney General Department of Legal Affairs The Capitol, Room 1602 Tallahassee, Florida 32301 Eduardo A. Liriano, M.D. 115 Dyer Court Norwood, New Jersey 07648 Dorothy J. Faircloth, Executive Director Florida Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32301 Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact At all times pertinent to the issues herein, the Respondent, Edith Rogers, was employed as a data operator with the Indian River County Health Unit, a sub-unit of the Department. She was hired by the Department on January 4, 1988 and began working for Gerry L. Waite as a data operator in October, 1988. When employees are hired by the Health Unit, they are briefed on the unit's leave policies and procedures and are given a copy of the unit's personnel policies for which each employee is obligated to sign a receipt. That portion of the handbook dealing with absences provides that when possible, employees requesting to be absent should request authorization from their supervisor in advance. If prior application is not possible, and absence is necessary, the employee is to call in at the earliest possible moment to let the supervisor know what is going on and approximately how long the employee will be absent. Respondent has complied with these policies on several occasions in the past. On July 26, 1991, a Friday, the Respondent was at her place of employment and there was no indication given that she was experiencing any difficulty. The following Monday, however, July 29, 1991, she did not report for work and Ms. Waite, her supervisor, knew from an article which had appeared in the prior day's newspaper, that Respondent had been arrested. Respondent did not call in on that day, nor did anyone else call in for her. Respondent remained in jail until August 19, 1991. Subsequent to Monday, July 29, 1991, Ms. Waite called the jail twice a week to check on the Respondent's statue. Each time the Respondent was there. At no time during that period did Respondent, or anyone else on her behalf, call her duty section and speak with her supervisor regarding the basis for her absence, nor did Respondent write a letter to explain, though she was able to do so. Mrs. Rogers did not come to work on August 20, 1991, a Tuesday and the day after her release from jail, nor did she come in on August 21 or 22, 1991, the following Wednesday and Thursday. There was no contact from the Respondent, and her absence subsequent to her release had not been authorized. Ms. Waite is satisfied that Respondent knew the abandonment provisions and the potential results of failing to appear for several days without authority since, in 1984, a similar action was taken regarding her employment with the Department in St. Lucie County, and she was deemed to have abandoned her position at that time. Respondent was seen in Walmart by another Department employee on the morning of Tuesday, August 20, 1991. At that time she was buying clothes for her 13 year old son preparatory to getting him enrolled in middle school. She admits she did not call her office on that day, however, on Wednesday, August 21, 1991, after arranging to have the power to her residence turned on and taking care of some other personal affairs, she called a friend of hers, Mrs. Brenda Troutman, who works for the Health Unit in its vital statistics division, and explained where she was. Ms. Troutman, however, was not working in Respondent's division nor was she in any supervisory capacity over her. Though Ms. Rogers claims she asked Ms. Troutman to notify Ms. Waite of her status for her, Ms. Troutman declined to do so, suggesting Ms. Rogers make the contact herself. On Thursday, August 22, 1991, Respondent did call her office and asked to speak with Ms. Waite. Unfortunately, she called at lunchtime, sometime between 1 and 1:15 PM, and neither Ms. Waite, nor anyone else in authority was there to speak with her. Respondent admits she did not leave her name at the time of that call. The evidence is clear that at no time, from the time Ms. Rogers was placed in jail in July until Ms. Waite spoke with her on the evening of Friday, August 23, 1991, did Respondent, or anyone on her behalf, make any sincere effort to contact the Unit to explain, officially, to anyone in authority where she was, the reason for her absence, and when she would be back. At that time, Ms. Rogers advised Ms. Waite that she would be back to work on August 26, 1991, but Ms. Waite told her then it was too late as she had already been processed for abandonment of her position. Ms. Waite is quite certain that Ms. Rogers is and was aware of the procedures to be used when an absence is anticipated or when it was unavoidable, because Respondent has taken advantage of these procedures and utilized them several times in the past during the period she has been working for the Department. According to Ms. Register, the employee specialist with the Department's District office, there is a difference between an abandonment action and a termination for cause. The latter is a disciplinary action and is appealable through the Public Employees Relations Commission or through union grievance procedures. The abandonment is a determination made after an unauthorized absence with a provision for review, and is more a constructive action determined on the basis of the employee's failure to appear. Respondent is quite insistent that she did not intend to abandon her position and intended to come back to work the Monday following her release, (August 26, 1991). She claims one of the reasons for her delay in going back to the office was her embarrassment in going back and facing her coworkers after having been in jail, but she contends that at all times she wanted her job back. She differentiates her situation in this case from that in the 1984 abandonment action. Then, she admits, she walked away from her job because of her addiction to cocaine. Here, she claims, this was not her intent, and she fully intended to go back to work just as soon as she was able to do so.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore recommended that a Final Order be entered finding that Respondent, Edith Rogers, abandoned her position with the Indian River County Health Unit and resigned from the Career Service. RECOMMENDED in Tallahassee, Florida this 24th day of January, 1992. ARNOLD H. POLLOCK 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 24th day of January, 1992. COPIES FURNISHED: Karen M. Miller, Esquire DHRS, District 9 111 Georgia Avenue West Palm Beach, Florida 33401 Charles A. Sullivan, Jr., Esquire Post Office Box 2620 Vero Beach, Florida 32961-2620 John Slye General Counsel DHRS 1323 Winewood Blvd. Tallahassee, Florida 32399-0700 Sam Power Agency Clerk DHRS 1323 Winewood Blvd. Tallahassee, Florida 32399-0700
The Issue The issue for consideration in this case is whether Respondent's license as a legal expense agent in Florida should be disciplined in some manner as a result of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, Petitioner, Department of Insurance (Department) was the state agency in Florida responsible for the licensing of insurance agents and the regulation of the insurance profession in this state. Respondent either was licensed or had applied for licensure as a legal expense agent in Florida. On or about May 29, 2000, Respondent filed an application for licensure as a legal expense agent with the Department. In Section 9 of the application form, that section in which the Department asks the applicant certain questions about his or her background, at question 3, the form reads: Have you ever been convicted, found guilty, or pleaded guilty or nolo contendere (no contest) to a felony under the laws of any municipality, county, state, territory, or country, whether or not adjudication was withheld or a judgement of conviction was entered? Respondent checked the "No" block in answer to that question. In that same section of the application form, the Department also asks the question: Have you ever been convicted, found guilty, or pleaded guilty or nolo contendere (no contest) to a crime punishable by imprisonment of one (1) year or more under the laws of any municipality, county, state, territory, or country, whether or not adjudication was withheld or a judgement of conviction was entered? Respondent checked the "No" block in answer to that question as well. Notwithstanding her answers to the questions cited, the evidence of record indicates that on May 26, 1998, Respondent pleaded nolo contendere to a charge of Obtaining Property by Worthless Check, a felony, in Case No. 96-01386, in the Circuit Court for the Thirteenth Judicial Circuit, in and for Hillsborough County, Florida. Adjudication of guilt was withheld by the court. In reliance, at least in part, on Respondent's denials on her application for licensure that she had pleaded guilty or pleaded nolo contendere to a felony charge, on July 7, 2000, the Department issued Respondent a license as a legal expense agent. Respondent admits to having plead nolo contendere to the worthless check felony charge, but because adjudication of guilt was withheld, she believed the action would not be on her record. She also admits to having recognized the nature of the questions she answered in the negative but indicated she did so because she believed the case was closed and her record would not show the court action. At the time she applied for licensure, Respondent was aware a background investigation would be done and contends she was not trying to do anything to obstruct it. She did not check with the court to determine the status of her case before filling out the application. She had an attorney for the criminal action and took his word that the matter was closed and would not appear on her record. Since being contacted by the Department's investigator, she has been completely forthright in her dealings with it.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Insurance enter a final order finding Respondent guilty of Misrepresentation of a Material Matter on her application for licensure, and revoking her license as a legal expense agent. DONE AND ENTERED this 29th day of January, 2001, in Tallahassee, Leon County, Florida. ___________________________________ ARNOLD H. POLLOCK 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of January, 2001. COPIES FURNISHED: Anoush A. Arakalian, Esquire Department of Insurance Division of Legal Services 612 Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0333 Dirk R. Weed, Esquire 4504 North Armenia Avenue Tampa, Florida 33603 The Honorable Bill Nelson Insurance Commissioner Department of Insurance The Capitol, Plaza Level 02 Tallahassee, Florida 32399-0300 Daniel Y. Sumner, General Counsel Department of Insurance The Capitol, Lower Level 26 Tallahassee, Florida 32399-0307
