Findings Of Fact Petitioners', Joseph and Shelly Grainger, are husband and wife. They have one five year old son, Christopher Grainger. Joseph Grainger is the primary wage-earner for the family. At present, Joseph Grainger is unemployed due to a back problem. His previous employment was with a parcel shipping company. Due to his unemployment, Mr.Grainger is receiving approximately $653.00 a month in unemployment benefits. He will receive unemployment benefits until December, 1990, when his unemployment benefits terminate. As a recipient of unemployment benefits, Mr. Grainger must actively seek employment and is considered to be employable by the State. Proposed Rule 10C-1.11 Florida Administrative Code, implements federal and State law requiring the Department to furnish Aid to Families with Dependent children to indigent families whose principal wage-earner is unemployed (AFDC- UP). The law and the proposed Rule require the principal wage-earner to participate in the Job opportunities and Basic Skills program (JOBS). Florida has mandated that the spouse of the principal wage-earner also participate in the JOBS program, if funds are available. For AFDC-UP purposes, the Graingers constitute a three person assistance group. The assistance group determines the amount of benefits an applicant1 may receive if the applicant qualifies under the myriad eligibility requirements of the AFDC-UP program. The assistance group also sets the amount of income an assistance group may not exceed and still qualify for AFDC-UP. In this case, the Graingers' income limit is $294.00. Clearly, because of the amount of unemployment benefits Mr. Grainger is receiving, the Graingers do not now qualify for AFDC benefits and are not now receiving AFDC benefits which will be impacted by the proposed Rule. Since the Graingers are not now qualified for the AFDC-UP program and Mr. Grainger is employable, they have not established that they will suffer an injury from the proposed Rule's implementation of sufficient immediacy to entitle them to a hearing under s 120.54, Florida Statutes. See Agrico Chemical v. Department of Environmental Regulation, 406 So.2d 478 (Fla. 2d DCA 1981); Department of Health and Rehabilitative Services v. Alice P., 367 So.2d 1045, (Fla. 1st DCA 1979); Florida Department of Offender Rehabilitation v. Jerrv, 353 So.2d 1230 (Fla. 1st DCA 1978); and Village Park Mobile Home Association v. State Department of Business Regulation, 506 So.2d 426 (Fla. 1st DCA 1987). Accordingly, the Graingers do not have standing to challenge the proposed rule. Based on the foregoing Findings of Fact and Conclusions Of Law and being otherwise fully advised in the premises, IT IS ORDERED that the Petitions filed in Case Nos. 90-5157RP and 5158R are dismissed and the Division's files closed. DONE and ORDERED this 2nd day of October, 1990, in Tallahassee, Florida. DIANA CLEAVINGER 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 2nd day of October, 1990. COPIES FURNISHED: Cindy Huddleston Florida Legal Services, Inc. 2121 Delta Way Tallahassee, Florida 32303 Scott LaRue Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building 1, Suite 407 Tallahassee, Florida 32399-0700 Liz Cloud, Chief Bureau of Administrative Code The Capitol, Room 1802 Tallahassee, Florida 32399-0250 Carroll Webb, Executive Director Administrative Procedures Committee Holland Building, Room 120 Tallahassee, Florida 32399-1300
The Issue Whether an employee who has retired on ordinary early retirement and cashed more than 30 retirement checks should be heard on a claim made some two years or more after he retired that he is entitled to disability retirement benefits?
Findings Of Fact On January 15, 1983, petitioner Tommy Gene Grantham left the Escambia County Sheriff's Department after more than 14 years as a deputy sheriff. Respondent gave petitioner notice on April 27, 1983, of its intention to deny his application for disability benefits, which he had made on grounds he was "unable to lift, stand, or perform any type of physical exertion." Respondent's Exhibit No. 7. Petitioner took appropriate steps to cause his application for disability benefits to be placed on the agenda of the State Retirement Commission for its December 13, 1983, meeting. On the following day, the Commission entered a final order dismissing cause, which had the effect of denying the application. Respondent received petitioner's application for service retirement on December 4, 1986. Petitioner made this application because he needed the money. He had only recently been released from the Pavilion, a mental ward at a hospital in Pensacola, where he had been confined in a padded cell from November 15 to December 1, 1966. On December 10, 1986, respondent acknowledged receipt of the application. Respondent's Exhibit No. 4. The form acknowledgment said, "[O]nce you retire you can not add additional service nor change options. Retirement becomes final when the first benefit check is cashed." Respondent's Exhibit No. 4. By the time of the hearing in this matter, respondent had cashed more than 30 monthly retirement checks. Nancy Grantham has been married to the petitioner for 15 1/2 years although, between September 5, 1986, and February of 1987, she and her husband were legally separated. Over the years, according to Mrs. Grantham, her husband has suffered from serious mental problems. It was she who took him to the Pavilion on November 15, 1986, when, she recalls, he was "talking crazy," anxious, depressed, and apparently suicidal. At no time has any court adjudicated the petitioner incompetent. The respondent's policy is to honor elections made by retirement system members, even members seeking disability retirement on psychiatric grounds, in the absence of an adjudication of incompetency.
Recommendation It is, accordingly, RECOMMENDED: That respondent dismiss petitioner's application for disability retirement benefits. DONE and ENTERED this 21st day of November, 1989, in Tallahassee, Florida. ROBERT T. BENTON, II 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 21st day of November, 1989. APPENDIX With respect to petitioner's proposed findings of fact Nos. 1 and 6, the agency actions were not final at those times. Petitioner's proposed findings of fact Nos. 2, 4 and 5 have been adopted, in substance, insofar as material. With respect to petitioner's proposed finding of fact No. 3, it is not clear when the application was mailed. COPIES FURNISHED: Tommy G. Grantham 2266 Berrydale Road Cantonment, FL 32533 William A. Frieder, Esquire Department of Administration Carlton Building Tallahassee, FL 22399-1550
The Issue The ultimate issue is whether Coyle is eligible for vocational rehabilitation benefits. The eligibility requirements for vocational rehabilitation benefits are set forth in both federal and state law. An individual is eligible when it is certified that: A physical or mental disability is present; A substantial handicap to employment exists; and Vocational rehabilitation services may reasonably be expected to render an individual fit to engage in gainful employment. Based upon the evidence presented at the hearing, there is no viable dispute that Coyle would not benefit from the receipt of vocational rehabilitation services, or that a documented physical disability does not exist. The real factual issue presented is whether Coyle has a substantial handicap to his employment. Both parties submitted post hearing proposed findings of fact in the form of proposed recommended orders filed March 4 and March 15, 1983. To the extent the proposed findings of fact have not been included in the factual findings in this order, they are specifically rejected as being irrelevant, not being based upon the most credible evidence, or not being a finding of fact.
Findings Of Fact The Petitioner, Michael L. Coyle, applied for vocational rehabilitation services on May 28, 1982. Coyle is a 46-year-old white male who is divorced with custody of his seven-year-old daughter. Coyle worked for 14 years as a printer/compositor for the Sarasota Herald-Tribune. This job required that Coyle stand during his entire work day. Prior to working for the Sarasota Herald-Tribune, Coyle worked as an airline ticket clerk and supervised the loading of freight for an airline. These positions required that Coyle stand during much of his work day. When Coyle applied for vocational rehabilitation services, he was on medical leave from the Sarasota Herald-Tribune on advice of his personal physician. This medical leave was for the purpose of alleviating pain in Coyle's left knee. This pain had become incapacitating. When Coyle applied for vocational rehabilitation services, his medical leave was almost over, and the condition in his left knee had not improved. Coyle's employer, the Sarasota Herald-Tribune, had no positions available in which Coyle could work seated, and Coyle could not perform his duties as a printer/compositor while seated. Coyle was required to perform his duties while standing, and no opportunity existed for Coyle to be seated periodically during his work day. Coyle's application for vocational rehabilitation services was approved, and Coyle was certified as eligible on July 1, 1982. A rehabilitative plan was not prepared for Coyle by Coyle's counselor. Before a rehabilitative plan could becompleted, Coyle applied for additional benefits, to include transportation and maintenance costs. By this time, Coyle's medical studies were completed and their results available. The physicians reported that Coyle had a degenerative and chronic joint disease in his left knee; however, Coyle was able to work if he took aspirin and alleviated the strain on his knee by not standing. Based upon these reports, Coyle's request for maintenance and transportation costs were denied. Based upon the reevaluation of the medical opinions, the agency determined that Coyle was not eligible to receive any vocational rehabilitation benefits. Coyle was notified of the agency's decision to terminate his vocational rehabilitation benefits, and Coyle timely initiated administrative review of that determination. Coyle's records do not reflect that Coyle had applied for SSI and food stamps. Coyle receives some money as an insurance payment for his disability from private insurance maintained through his former employer.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, Michael L. Coyle's basic vocational rehabilitation benefits should be reinstated retroactive to the date of original termination. DONE and RECOMMENDED this 11th day of April, 1983, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 11th day of April, 1983.
The Issue The central issue for determination is whether the Petitioner is entitled to retirement benefits which she claims as surviving spouse. Although she does not provide evidence that her husband earned sufficient creditable service to vest in the system, Petitioner claims entitlement based on two alternate theories: that approximately 480 hours of sick leave accrued at the time of her husband's death should be added to his creditable service to meet the ten-year requirement; and her husband should have been eligible for disability retirement prior to his death, but was prevented by his employer from making a timely application.
Findings Of Fact Robert L. Carruthers was a member of the Florida Retirement System (FRS) at the time of his death on May 26, 1988. His membership commenced on September 13, 1979, when he was employed by the Brevard County District School Board. On June 30, 1980, he transferred to the Orange County District School Board and remained in that employment until his death. Joy Ruth Carruthers is the surviving spouse of Robert L. Carruthers. During his employment with the two school boards, Mr. Carruthers earned 8.75 years of creditable service in the FRS. Mrs. Carruthers is unaware of any other employment which might be credited as service. The Division of Retirement has no information of other employment which might be credited as service in the FRS. As the result of a complaint by Carol Stearns, the mother of Joy Carruthers, Robert Carruthers was placed on "relief of duty, with full pay and benefits" as of February 18, 1988, by the Orange County School Board. Prior to that time he had worked as an ROTC instructor at Evans High school. He was on the "relief" status at the time of his death. Sometime in late February 1988, Robert Carruthers became paralyzed from the waist down, and could not walk, as the result of a progressive illness. He had formerly walked with a cane. He had worked at the school up through the day he was given his "relief from duty" papers. Mrs. Carruthers claims that when he was placed on relief status, her husband was forbidden to go anywhere near the school or school board offices and was thus prevented from filing an application for retirement disability benefits. No witness substantiated that claim, and the letter from Dennis Reussow, Assistant to the Superintendent for Employee Relations and Administrative Services, to Mr. Carruthers states, ". . . . During this time you are directed to remain away from the Evans High School campus and to avoid contact with students assigned to the school. . . ." (Petitioner's exhibit #4.) This prohibition appears to be limited to the school and would not include the administrative offices. In early May the school board received a statement from Robert Carruthers' doctor that he would not be able to return to work indefinitely. Shortly thereafter, John B. Hawco, the Orange County School Board Administrator for Employee Relations, went to Carruthers' home with insurance forms. They were able to communicate and Carruthers signed some forms. It is not clear from the record whether a disability retirement application was completed on that occasion, but at some point a scribbled, illegible signature for Robert Carruthers was obtained on an FRS application for disability retirement. The application is dated May 25, 1988. The employer's statement of disability attached to the application was completed by John B. Hawco on May 26, 1988. When he completed the form, John Hawco did not know that Robert Carruthers had died the same day. The application form was date-stamped at the Division of Retirement on May 31, 1988. The employer's statement of disability is stamped June 6, 1988. (Petitioner's composite exhibit #3.)
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Division of Retirement enter its Final Order denying Petitioner's request for benefits. DONE and ORDERED this 28th day of June, 1989, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 1989. COPIES FURNISHED: Joy R. Carruthers Post Office Box 680-151 Orlando, Florida 32858 Stanley M. Danek, Esquire Office of General Counsel 440 Carlton Building Tallahassee, Florida 32399 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
The Issue Whether the Respondent's determination that the Petitioner is ineligible for Vocational Rehabilitation services is consistent with the adopted goals, criteria, standards, and policies of the Department.
Findings Of Fact The Petitioner initially applied for Vocational Rehabilitation services on July 11, 1983. The Petitioner was determined to be eligible for benefits and received assistance until July 17, 1984, when her file was closed at her request. The Petitioner requested the file closure because she was rehabilitated and was not currently in need of services. She was informed by the Respondent that the file could be reopened if services were needed in the future. In April of 1987, the Petitioner had surgery done on her left leg which changed the shape of her foot and created new problems surrounding her physical disability. On June 26, 1987, the Petitioner reapplied for Vocational Rehabilitation benefits. The surgery required the Petitioner to be out of work for six weeks without pay. Her employee medical insurance program did not adequately provide for the physical therapy she needed to adjust to the changes in her leg. New orthopedic inserts were needed for her shoes as the shape and size of her left foot were changed by the surgery. A new clutch apparatus was needed in her vehicle because the present clutch aggravated her foot and interfered with her recovery from the surgery. The Petitioner was also under emotional stress because she had been informed that amputation may be necessary if the recent operation is unsuccessful. Vocational Rehabilitation benefits were sought by the Petitioner to help her through the situation in which she was currently placed because of her physical handicap. During the reapplication process, the Petitioner was treated as a "new applicant" for computer purposes and as a "returning client requesting post- employment services" for processing purposes. The reason for the discrepancy was that the original file had been closed before the new computer was installed. The computer refused to accept the application as a request for post-employment services, so the Vocational Rehabilitation counselor treated the case as an initial application in order to obtain a client number. During the file review to determine if the Petitioner is eligible for services, the Vocational Rehabilitation counselor spoke with the Petitioner's supervisors at work. The purpose of the interview was to determine whether the Petitioner's physical disability prevents her from performing her job or places her job in jeopardy. There was a communication problem during the interviews between the supervisors and the Vocational Rehabilitation counselor. As a result of the misunderstandings which occurred, the application was rejected by the Respondent on November 12, 1987. The reason given for the determination that the Petitioner is ineligible for services was that the disability did not prevent the Petitioner from performing her job or maintaining employment. During the hearing, the evidence revealed that the Petitioner's disability did prevent her from performing her job as a Public Assistance Specialist II. The surgery and the physical therapy placed her employment with the Department of Health and Rehabilitative Services in jeopardy because she was unable to perform her job duties. The Petitioner was unable to work on her case load of clients. She was unable to complete home visits or work in the agency's outposts in the area hospitals. Other employees within her unit worked overtime in order to meet the duties the Petitioner was unable to fulfill. The expense of overtime payments to other workers made it impossible for the employer to continue with the arrangement over a long period of time. In addition, the extra work hours and heavier case loads negatively impacted on the unit's performance as a whole. The entire situation jeopardized the Petitioner's continued employment as a Public Assistance Specialist II. During the time period the Petitioner was recuperating from surgery, she was asked to return to the office as a switchboard operator. The purpose of the request was to help the Petitioner financially and to fill a temporary vacancy at the office. This temporary assist to the Petitioner was unsuccessful. The situation caused confusion with the clients, and the Petitioner's need to take time off for physical therapy sessions inconvenienced the office and interfered with office functions. The problems surrounding the permanent job and the temporary job were discussed with the Petitioner on different occasions by her supervisors. The supervisors did not consider these discussions to be "oral reprimands" as legally defined within the agency's personnel manual. The supervisors considered the discussions to be a preliminary attempt to resolve a personnel problem. Discussions of this nature precede oral reprimands and are not generally discussed with anyone other than the participants. Thus, when questioned by the Vocational Rehabilitation counselor about the Petitioner's job status, the supervisors' responses may have been convoluted due to the entire job situation. The Vocational Rehabilitation counselor's attempt to clarify her knowledge of the situation by inquiring about any disciplinary procedures was met with denial by the supervisors because they believed the discussions were confidential. When the Vocational Rehabilitation counselor and her supervisor sought information concerning the status of the Petitioner's employment from her supervisors misunderstandings continued to occur. The supervisors did not adequately explain the situation so that the Respondent would be able to make a just determination of the Petitioner's eligibility status. The Petitioner unsuccessfully pursued other avenues of possible assistance before she applied for benefits from the Respondent.
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 Whether or not the Department of Health and Rehabilitative Services' reduction of Petitioner's vocational rehabilitative benefits is warranted.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, the following relevant facts are found. Petitioner, Warren A. Bergman, is a fifty-two (52) year old male who has been receiving financial assistance and benefits from Respondent since early 1980, to become educated at the local vocational technical school and Manatee Junior College, such that he can become employed as an electronic technician. Petitioner has received maintenance benefits from Respondent in excess of $500.00 per month (average) since he has participated in the vocational rehabilitation program sponsored by Respondent. Petitioner has received approximately $7,283.00 in benefits from Respondent. Petitioner suffers from a chronic diabetic condition which prevents him from standing for prolonged periods of time; be is capable of only limited weight-bearing and he cannot lift or carry heavy objects. Petitioner remains under the care of Dr. Burwell Jones for chronic ulcerations of his ankles and legs. (Joint Exhibit No. 1) Petitioner's rehabilitative program has been reviewed by the Respondent semiannually. During the most recent review in July, 1981, it was determined by Petitioner's vocational rehabilitation specialist that be (Petitioner) was no longer eligible for benefits under Respondent's rehabilitation services program at the existing levels in view of the high cost involved in maintaining those benefits; Petitioner's chronic condition which prevented ambulation and the considered opinion of Respondent's medical experts that there was little likelihood that Petitioner's condition would improve to the point that would enable him to return to gainful employment. 1/ (Testimony of Mrs. Sydney Tatem, Respondent's Program Supervisor and a former vocational rehabilitation specialist in charge of reviewing Petitioner's benefits program.) During the school term ending May, 1981, Petitioner enrolled in a technical math course, a fundamental electronics course and a basic electronics circuitry course. Petitioner withdrew from the technical math course and audited the basic electronics circuitry course. Petitioner received a final grade of "C" in the fundamental electronics course. Petitioner had received benefits from Respondent to maintain a full course of study at Manatee Junior College. Prior to Respondent's decision to reduce the level of funding for Petitioner's benefits under the vocational rehabilitation program, Mrs. Tatem directed Petitioner to obtain a thorough work evaluation program with a neighborhood liaison agency (Goodwill Industries) such that the vocational rehabilitation services program could develop a meaningful rehabilitation service program. Petitioner refused to participate and Respondent was unable to develop a work evaluation program by utilizing the resources of Goodwill. Petitioner felt that his participation in the development of such a program was "not in his best interests" in that he considered such a program would not head him in the direction that he desired. (Testimony of Petitioner) Upon Petitioner's entry in the vocational rehabilitation services program during April of 1980, Petitioner agreed to offer his help and assistance in the development of a program to determine his eligibility for rehabilitation services under the Respondent's program. In that agreement of understanding, Petitioner acknowledged that his program would change as circumstances changed and that his program could be ended if it . was found that it was not likely that he would be able to work. (See Joint Exhibit No. 5) Following Petitioner's refusal to assist in the development of a work evaluation program in order for Respondent to reassess his vocational capabilities, Respondent determined that it would be unable to provide further medical services, medicines or supplies to Petitioner in view of the severity of Petitioner's impairment and the general aptitude test battery scores. Based on the fact that Petitioner was eligible for Medicaid, SSI benefits and food stamps, Respondent also determined that it would no longer provide Petitioner with further living expenses. Respondent, however, agreed to provide Petitioner with transportation expenses in the amount of twenty cents ($.20) per mile for the actual number of round trips per week between his home and Manatee Junior College.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Respondent's actions in reducing the level of vocational rehabilitation services and benefits to Petitioner be UPHELD. RECOMMENDED this 16th day of December, 1981, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of December, 1981.
The Issue Whether the Respondent Entrust Recovery Corporation violated Section 493.6118(1)(n), Florida Statutes, and if so, what penalty should be imposed and whether Respondent Patrick C. Simone violated Section 493.6118(1)(g), Florida Statutes, and if so what penalty should be imposed.
Findings Of Fact Phillip Hobbs (Hobbs), is the president of Respondent, Entrust Recovery Corporation (Entrust). Mr. Hobbs holds a Class "C" Private Investigator license; a Class "R" Recovery Agency license; a Class "E" Recovery Agent license; a Class "RI" Recovery School Instructor license; and a Class "RS" Recovery School/Training Facility license. Respondent, Patrick Simone (Simone) did not have a Class "E" Recovery Agent license or a Class "EE" Recovery Agent Intern license on January 13, 1995. On January 13, 1995, Simone was employed as a private investigator for Entrust. On January 13, 1995, at the request of Hobbs, Simone went to Jeff Paull's (Paull) residence to determine if Paull's car was there. Simone advised Hobbs by two-way radio that a white Toyota was parked in the driveway. Hobbs told Simone to wait for him to get to the residence. When Hobbs arrived, he parked his car approximately 100 feet west of Paull's house. Hobbs told Simone to go and knock on the door. Simone walked up to Paull's door and knocked to see if anyone was home. Paull came to the door, identified himself as Jeff Paull and came out of the house to speak with Simone. Simone identified himself as a representative of World Omni and told Paull that he was there to take the car, that he needed to talk to Paull about the car payments, and that World Omni would like to talk to him. Simone, using a cellular telephone, dialed World Omni's number and gave the telephone to Paull to talk to World Omni. After Paull talked to World Omni, he tossed the car keys to Simone. Paull went back into his house to get his own portable telephone and made another telephone call. While the transaction was taking place between Paull and Simone, Hobbs was down the street with a pair of binoculars and a two-way radio trying to find out what was going on. Based on the location of Paull's house, the front door and courtyard are visible only from directly in front of Paull's house. The front door area is not visible from the west because of the foliage and construction of the house. Thus, Hobbs could not have observed the interactions between Paull and Simone as he testified at the final hearing. Because Hobbs was trying to monitor the transaction from a distance with a two-way radio, he could not hear what was being said at the time it was being said and relied on Simone to tell him what was going on when Paull was not there. After Paull gave Simone the keys, Paull asked Simone if he would give him a ride to his luncheon appointment. Simone agreed to do so. Paull went back into the house to finish dressing and someone banged on the door while he was getting ready. When Paull went back outside, only Simone was present. Simone took the white Toyota and dropped Paull off on his way back to Hobbs' office. During the scenario between Paull and Simone, Hobbs did not approach Paull to speak with Paull and did not identify himself to Paul as the repossessor.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Patrick C. Simone violated Section 493.6118(1)(g), Florida Statutes, that Entrust Recovery Corporation violated Section 493.6118(1)(n), Florida Statutes, that an administrative fine of $150 be imposed on Patrick C. Simone, and that an administrative fine of $500 be imposed on Entrust Recovery Corporation. DONE AND ENTERED this 17th day of January, 1996, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 17th day of January, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 95-4238 & 95-4239 To comply with the requirements of Section 120.59(2), Florida Statutes, the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraphs 1-5: Accepted. Paragraphs 6-9: Accepted in substance. Respondents' Proposed Findings of Fact Paragraph 1: Accepted. Paragraph 2: Rejected as subordinate to the facts found. Paragraph 3: Accepted. Paragraph 4: Rejected as subordinate to the facts found based on the finding that Simone told Paull that he was there to take the car. Paragraph 5: Rejected as subordinate to the facts found. Paragraph 6: Accepted in substance. Hobbs had directed Simone to see if the car was there. Paragraph 7: Rejected that Hobbs could observe and hear what was going on, otherwise accepted that Hobbs parked down the street from the house. Paragraphs 8-9: Accepted in substance. Paragraph 10: Accepted that Paull gave up his car. Rejected that he was given the option to wait until Monday as not supported by the record. Paull stated that he asked Omni to wait until Monday but the evidence does not support a finding that Omni agreed to wait until Monday. Paragraph 11: Accepted in substance. Paragraph 12: Rejected as subordinate to the facts found. COPIES FURNISHED: Kristi Reid Bronson Assistant General Counsel Department of State, Division of Licensing The Capitol, Mail Station Number 4 Tallahassee, Florida 32399-0205 Mark A. Kamilar, Esquire Penthouse I, United States Justice Building 155 South Miami Avenue Miami, Florida 33130 Honorable Sandra B. Mortham Secretary of State The Capitol Tallahassee, Florida 32399-0250 Don Bell General Counsel Department of State The Capitol, PL-02 Tallahassee, Florida 32399-0250
The Issue At issue herein is whether or not the Petitioner is entitled to continue receiving vocational rehabilitation benefits.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the arguments of the parties and the entire record compiled herein, the following relevant facts are found. Ms. Virginia Ryan, Petitioner, has been a client in the Vocational Rehabilitation program since September of 1978. Pursuant to an administrative review by her counselor and specialist assigned to the Vocational Rehabilitation program, Petitioner was advised on February 1, 1980, that she was being terminated from the Vocational Rehabilitation program for the following reasons: Petitioner's case had been active since September, 1978, without accomplishment vocationally. Vocational Rehabilitation services had expended approximately Two Thousand ($2,000.00) Dollars to rehabilitate Petitioner, with no visible results from such expenditures. Work evaluation reports completed for Petitioner at Jackson Memorial Hospital Rehabilitation Center indicate that Petitioner was not trainable or employable. Petitioner's participation in two vocational training sessions were without success. Counselors for vocational rehabilitative services who had serviced and counseled Petitioner concluded, based on the foregoing, that further expenditure of Federal funds would not result in any gainful employment for Petitioner. Petitioner charges that her counselor, Mrs. Harriet B. Weaver, was unprofessional and had sabotaged her training program at Charron Williams Vocational Center; had practiced reverse discrimination with respect to her counseling and efforts to rehabilitate her vocationally; was incompetent to carry out any program to rehabilitate her and had sabotaged her efforts to obtain services through a dental program. Harriet Weaver, a Vocational Rehabilitation counselor since approximately January of 1976, was assigned to service Petitioner during approximately April of 1979. Mrs. Weaver examined Petitioner's medical history file and accepted her as an orthopedic disability client. (Respondent's Composite Exhibit 1.) During the period April, 1979, through February, 1980, Mrs. Weaver assigned Petitioner to approximately four dentists and enrolled her in the rehabilitation program at Charron Williams Vocational School. During this period, Mrs. Weaver also obligated the Vocational Rehabilitation program to defray lodging expenses for Petitioner at the Cadillac Hotel in the amount of approximately Two Hundred ($200.00) Dollars. The evidence also reveals that the program expended approximately Eight Hundred Seventy-seven ($877.00) Dollars to Petitioner in taxi fares, of which approximately 70 percent represented unauthorized fares for taxicab services. Evidence also reveals that Petitioner has repeatedly appeared late for scheduled appointments with dentists, doctors, therapists, and for that matter, she arrived at the subject hearing approximately thirty (30) minutes late, with no explanation for her lateness. Doctors Wainger and Rudman determined that Petitioner was not employable and would not benefit from vocational rehabilitative training so long as her present attitude continued.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Respondent's termination of Petitioner from the Vocational Rehabilitation program be UPHELD. RECOMMENDED this 21st day of July, 1980, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st Day of July, 1980. COPIES FURNISHED: Ms. Virginia Ryan 685 Northeast 64th Street Miami, Florida 33138 Morton Lightner, Esquire District 11 Legal Counsel Department of Health and Rehabilitative Services 401 Northwest 2nd Avenue, Room 1040 Miami, Florida 33128 Alvin J. Taylor, Secretary Department of Health and Rehabilitative Services 1321 Winewood Boulevard Tallahassee, Florida 32301
