Conclusions THE PARTIES resolved all disputed issues and executed a Settlement Agreement. The parties are directed to comply with the terms of the attached settlement agreement, attached hereto and incorporated herein as Exhibit “1.” Based on the foregoing, this file is CLOSED. DONE and ORDERED on this the GE. day of ach , 2015, in Tallahassee, Florida. Led ELIZABETH DUDEK, SECRETARY Agency for Health Care Administration Final Order Engagement Nos. NH11-039L - NH11-044L Page 3 of 5 A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. Andy Page 2501 Blue Ridge Road, Suite 500 Raleigh, North Carolina 27607 (Via U.S. Mail) Bureau of Health Quality Assurance Agency for Health Care Administration (Interoffice Mail) Stuart Williams, General Counsel Agency for Health Care Administration (Interoffice Mail) Shena Grantham, Chief Medicaid FFS Counsel Agency for Health Care Administration (Interoffice Mail) Agency for Health Care Administration Bureau of Finance and Accounting (Interoffice Mail) Zainab Day, Medicaid Audit Services Agency for Health Care Administration (Interoffice Mail) Kristin Bigham Assistant Attorney General Office of the Attorney General (Via Interoffice Mail) State of Florida, Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (Via U.S. Mail) Final Order Engagement Nos. NH11-039L - NH11-044L Page 4 of 5 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to orl the above named addressees by U.S. Mail on this the Fin of VA YA re £ , 2015. Richard J. Shoop, Esquire” Agency Clerk State of Florida Agency for Health Care Administration 2727 Mahan Drive, Building #3 Tallahassee, Florida 32308-5403 (850) 922-5873 Final Order Engagement Nos. NH11-039L - NH11-044L Page 5 of 5
The Issue Should Petitioner be considered eligible for licensure and licensed as a clinical laboratory supervisor in the specialties sought.
Findings Of Fact At all times pertinent to the matters in issue here, Petitioner was licensed as a clinical laboratory supervisor in the State of Florida in the areas of hematology, serology and microbiology, under the provision of Chapter 483, Part I, Florida Statutes. This licensure is based upon her passing an examination in those subjects and her certification as qualified pursuant to Section 241, Public Law 92-603 by the Bureau of Quality Assurance, Public Health Service of the United States Department of Health, Education and Welfare. She is not certified in the areas in which certification is herein sought. The Department is the state agency responsible for the licensure and regulation of clinical laboratory personnel, including supervisors, in Florida. Petitioner has been licensed as a clinical laboratory supervisor in the disciplines set out above for approximately 12 years, the last six of which, she has spent at the laboratory at Doctor's Hospital in Sarasota, a laboratory approved by the State of Florida. In November, 1989, she applied for supplemental licensure as a clinical laboratory supervisor in the fields of chemistry and immunohematology, but was denied the requested licensure because she does not have either a bachelor's degree with a major in science, or 90 semester hours study in that field at an accredited college or university. Her educational and experience background are, however, impressive. Between June, 1965 and December, 1966, she was in training in the areas of hematology, serology, chemistry, microbiology and immunohematology. In January, 1967, she went to work in a doctor's office and set up his laboratory in which she worked in hematology testing, chemistry and urinalysis. In September, 1967, she went back to a hospital as a technologist in all phases of laboratory work. In July, 1973, she moved to Sarasota and went to work in the laboratory at Doctors Hospital, working with all five subspecialties. She held the job of technician and supervisor in all fields in which she was licensed. Petitioner asserts, and the Department agrees, that she was licensed in Florida as a supervisor in hematology in 1978, and in the areas of microbiology and serology in 1979. In April, 1980, Petitioner went to work for several doctors in Bradenton as a laboratory technician/technologist, remaining there through December, 1980, when she went back to Doctors Hospital, again working in all five specialty areas, and remained there as a technologist and supervisor in those areas in which she was licensed, until October, 1989. Since that time, she has worked in a Sarasota oncology laboratory, in hematology and clinical chemistry. She does no on-site chemical testing, however, since all is sent out. Through cross examination of the Petitioner, Respondent established that in 19878, and again in 1979, Petitioner took and failed to pass the Florida examination for supervisor in clinical chemistry and hematology. In the instant case, however, her protest is not about the grade she received on those examinations, but of the refusal to grant her licensure without examination on the basis of her experience. Petitioner is well thought of by the physician's for whom she works. Dr. Barbara J. Harty-Golder, a pathologist and her current supervisor, has known her since 1983 and has indirectly supervised her work since that time. She feels that Petitioner's performance in laboratory technology in the areas in which she seeks certification, is quite good. She has rarely worked with anyone as proficient and competent. Petitioner has exceptionally good people skills. She keeps up with current advances, and based on the witness' experience, which comes from supervision of several laboratories, she feels the Petitioner is fully qualified to be a supervisor in the areas in which she seeks certification. In late November, 1989, after Petitioner had submitted her request for licensure without examination, Ms. Nancy Chapman, assistant administrator of the Department's laboratory licensure division, and the individual responsible for evaluating Petitioner's application, wrote to her requesting information which was not on file in the Department's records. This information related to Petitioner's holding a bachelor's degree with a major in science. Petitioner did not respond to that request, and Petitioner stipulates that she does not possess the technical formal education specified in the Department's rules.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Secretary enter a Final Order denying Petitioner's application to add the specialty areas of clinical chemistry and immunohematology to her clinical laboratory supervisor's license. RECOMMENDED this 25th day of July, 1990, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of July, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-1880 The following constitutes my specific rulings pursuant to S 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: Accepted and incorporated herein. Accepted that Petitioner is a duly certified laboratory technologist, but not proven as to the subject matters in which so certified. & 4. Accepted and incorporated herein. 5. Accepted and incorporated herein. FOR THE RESPONDENT: 1. & 2. Accepted and incorporated herein. COPIES FURNISHED: Edward A. Haman, Esquire DHRS 7827 North Dale Mabry Highway Tampa, Florida 33614 Lawrence J. Robinson, Esquire Robinson, Robinson & Fogleman, P.A. P.O. Box 2720 Sarasota, Florida 34230-2720 John Miller 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 issues in this case are whether Respondent committed the allegations contained in the Administrative Complaint, and if so, the penalty that should be imposed.
Findings Of Fact The Parties Petitioner Department of Health has regulatory jurisdiction over licensed physicians such as Respondent. In particular, Petitioner is authorized to file and prosecute an administrative complaint, as it has done in this instance, when a panel of the Board of Medicine has found probable cause exists to suspect that the physician has committed one or more disciplinable offenses. At all times relevant to this proceeding, Respondent was a physician licensed in the State of Florida, having been issued license number ME 36690, and his medical office was located at 2100 Nebraska Avenue, Suite 105, Fort Pierce, Florida 34950. Respondent, who since 1984 has practiced medicine in the State of Florida as a vascular, thoracic,3 and general surgeon, has not been the subject of prior disciplinary action by the Board of Medicine. At all times pertinent to this matter, Respondent enjoyed surgical privileges at Lawnwood Regional Medical Center ("Lawnwood Regional") in Fort Pierce, Florida. Background As noted previously, the allegations in this cause relate to Respondent's treatment in early 2007 of P.L., a male patient with a longstanding history of peripheral arterial disease, who was 56 years old at the time of the final hearing. By way of background, Respondent's first contact with P.L. occurred in December 2004, when P.L. was referred to Respondent for treatment of an occlusion (blood clot) in P.L.'s right leg. Ultimately, Respondent discovered that P.L.'s femoropopliteal graft——which was previously inserted in P.L.'s right leg by a physician in New York——was no longer functioning correctly (i.e., the graft was no longer serving as a bypass of the blocked portion of the artery). On or about December 31, 2004, Respondent performed surgery on P.L. at Lawnwood Regional to correct the occlusion. While the surgery was successful, an arteriogram——an imagining technique in which an artery is x-rayed after the injection of a contrast agent——was performed prior to P.L.'s release from the hospital, which revealed stenosis (narrowing) where the graft was connected to the femoral artery. Although Respondent recommended balloon dilation to correct the stenosis, P.L. rejected further treatment and, against medical advice, signed himself out of the hospital in January 2005. January 2007 Surgery During the morning of January 23, 2007, P.L. began to experience numbness and excruciating pain in his right leg as the result of severe ischemia (inadequate blood flow). At 11:00 a.m., approximately 45 minutes after the pain began, P.L. presented himself for treatment at Lawnwood Regional's emergency room. While it is undisputed that surgery should have been conducted no later than six hours after the onset of the ischemia to prevent irreversible necrosis, Lawnwood Regional failed——through no fault of Respondent's——to timely address P.L.'s condition. In particular, P.L.'s emergency room physician did not contact Respondent by telephone until 2:30 p.m. (over three hours after P.L. arrived at the hospital), and even then the caller merely inquired about Respondent's availability based upon the possible need for a vascular surgeon. Respondent, who was provided with no information about the patient or the emergent nature of the medical condition, stated that he could respond to Lawnwood Regional if necessary. Respondent heard nothing for the next three hours, at which point he proceeded to Lawnwood Regional and discovered that P.L. was the subject of the earlier telephone call. Shortly after 5:30 p.m., Respondent examined P.L. and observed that his right leg was completely cyanotic——i.e., the limb appeared dead. An arteriogram was conducted at 6:30 p.m., which demonstrated the need for emergency surgery based upon a significant number of clots in P.L.'s common femoral artery and profunda (deep femoral artery). Nevertheless, as the result of further delay (that occurred through no fault of Respondent's), surgery did not begin until 10:15 p.m. By that time, there was no possibility—— as one of Petitioner's experts has acknowledged——of Respondent saving a significant portion of P.L.'s leg. As revealed by surgical report and final hearing testimony, Respondent performed a thrombectomy (removal of blood clots) on P.L.'s profunda and common femoral artery. Although the procedure restored some circulation, which resulted in immediate visual improvement in the color of the leg, the delay in treatment caused irreversible necrosis in a large portion of P.L.'s limb that would inevitably require some level of amputation. Post-Operative Infection Due to various factors that included P.L.'s diabetic condition, the presence of devitalized necrotic tissue, and the location of the operative site (the groin area, which harbors a significant number of bacterial organisms), P.L. presented a moderate to high risk to develop a post-operative infection. Not surprisingly, P.L. began to exhibit various signs of infection in the days immediately following the January 23 surgery, such as: fever during the evenings of January 24, 25, 26, 27, and 28; an increase in his white blood cell count to 20,000 on January 26; persistent nausea and abdominal distention on January 26; and edema (swelling) in the right leg from January 24 through (at least) January 26. Nevertheless, Respondent prescribed no antibiotic therapy for P.L. from January 24 through January 29. On or about January 29, one of Respondent's colleagues requested an infectious disease consultation after P.L.'s surgical wound began to emit a strong odor. Later that day, the consulting physician——Dr. Dragana Orlovic——examined P.L. and promptly ordered wound, urine, and blood cultures, as well as the intravenous administration of two antibiotics (Zosyn and Vancomycin). During the final hearing in this cause, Petitioner presented the testimony of Dr. Jaime Carrizosa, a physician who was accepted by the undersigned as an expert in the field of infectious disease.4 Dr. Carrizosa credibly opined that due to the various signs of infection exhibited by P.L. in the days following the surgery, Respondent should have initiated empiric antibiotic therapy and requested an infectious disease consultation no later than January 26, 2007 (i.e., within 48 hours of surgery), and that Respondent departed from the acceptable standard of care when he failed to do so. Amputation of P.L.'s Limb / Recordkeeping As discussed above, Lawnwood Regional's failure to timely address P.L.'s ischemia on January 23, 2007, caused Respondent to inherit——in the words of one of Petitioner's experts——an "awful situation" that would inevitably require the amputation of at least a portion of the patient's leg. Respondent acknowledged during his final hearing testimony that he was aware, as early as the day after the surgery, that amputation at some level was necessary, and further conceded, in hindsight, that he should have performed the procedure within four or five weeks of January 23. However, Respondent admits that he failed to document the necessary course of treatment——amputation——in P.L.'s medical records until May 15, 2007. For nearly five months following the January 23 surgery, P.L. remained hospitalized at Lawnwood Regional, during which time the condition of his leg further deteriorated. Nevertheless, Respondent did not broach the subject of amputation with P.L. until several days prior to the patient's June 16, 2007, transfer to the New York University Medical Center, the facility where all but four inches of P.L.'s right leg was ultimately amputated. During this proceeding, Respondent offered three explanations for his delay in proceeding with amputation, the first of which was that he was waiting for a definitive line of demarcation——i.e., the boundary between necrotic and healthy tissue——to form prior to operating. As additional reasons for the delay, Respondent admitted——candidly, yet troublingly——that due to the leg's appearance, he found it difficult to "condition" himself emotionally to proceed with the amputation, and further testified that he was concerned about possible litigation: Q Are you saying that this leg could have been viable on [January] 24th? A No, no. But the signs were such – I mean, when you have a dead leg, you have a dead leg, you can see it. Q This patient definitely had a dead leg? A Presumption, yes, he had a dead leg. Q This presumption was proven over time to be dead, wasn't it? A Yes, yes. But at the time in the beginning, it was very difficult. I mean, emotionally to go ahead and amputate a leg who looks -- the skin looks okay and there's pulses –- I mean, there's flow into the extremity. Emotionally it was difficult to commit to amputation at that point. Q Are you talking about conditioning the patient to amputate? A No, conditioning myself to proceed with it. * * * Q You're not suggesting for a moment, are you, Doctor, that the totality of the leg is going to be made better and it's all going to be -- A No. I was covering myself, because I knew we were going to get sued in this particular situation. I knew that from day one when I saw him in the emergency room that I'm going to get sued. So I wanted to make sure that I have documented at some point that you couldn't do these things, that even if somebody [says] his leg was viable, they couldn't come back and say to me you should have done this and this, because you just couldn't do these things. T. at 167-68; 176 (emphasis added). During the final hearing, Dr. Michael Cohen, Petitioner's expert in the specialty of vascular surgery, credibly opined that a partial amputation of P.L.'s right leg should have been performed in February 2007 and that Respondent departed from the standard of care when he delayed the procedure until June. The undersigned also credits Dr. Cohen's opinion that the improved appearance of P.L.'s leg immediately following the January 23 surgery did not provide a valid basis to forestall treatment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Board of Medicine: Finding that Respondent violated section 458.331(1)(t), Florida Statutes, as charged in Count I of the Complaint; Finding that Respondent violated section 458.331(1)(m), Florida Statutes, as charged in Count II of the Complaint; Imposing a fine of $8,500 in connection with Count I. Imposing a fine of $1,500 in connection with Count II. Placing Respondent on probation for a period of six months. Requiring Respondent to complete 50 hours of community service; and Requiring Respondent to complete five hours of risk management education. DONE AND ENTERED this 14th day of November, 2011, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of November, 2011.
Recommendation The recommendations contained in the joint stipulation of the parties are hereby adopted verbatim as follows: Respondent agrees to the terms and conditions for probationary limitations of his licenses under the provisions of Chapter 483, Florida Statutes, in lieu of the revocation of that license. Respondent shall retain his Clinical Laboratory Technologists License in serology, clinical chemistry and hematology. (There was no agreement as to paragraph 3) Respondent shall actively participate in a drug rehabilitation program approved by the Department for a period to be determined by the program selected. Respondent shall ensure that the program submits quarterly reports from the drug program to the Department for the period Respondent is enrolled in the rehabilitation program. The Petitioner shall provide that the reports will be reviewed by the Department and clinical laboratory advisory council. Respondent shall report to the Department representative, in person, for an annual interview for the first two years of the probationary period. The Petitioner may require and request unannounced urine specimens of Respondent during the probationary period for the purpose of drug screening. Respondent or Petitioner shall notify Respondent's current employer, if a clinical laboratory, of the nature of his problem and offense and shall require an annual report of his performance in the laboratory for the duration of the five years probation. Respondent shall advise the Department of any change in employment or address or any additional laboratory employment within 30 days during the five year probationary period. Respondent agrees that non-compliance with the terms of probation will be cause for immediate revocation of his Clinical Laboratory Personnel License. Respondent further agrees that any renewal or reissuance of license will. be taken subject to the terms herein until such terms have been fully satisfied. That the Secretary of the Department of Health and Rehabilitative Services shall enter a final order requiring the probationary limitation of Respondent's Clinical Laboratory Personnel License, incorporating this Joint Stipulation and the Recommended Order entered in this cause." In addition to the recommendations contained in the. Joint Stipulation it is further recommended that Respondent be required to work under direct supervision only in the area of immunohematology (blood banking) until such time as he presents evidence, satisfactory to the Administrator of Laboratory Personnel Licensure, Office of Licensure and Certification, DHRS, that he has successfully completed his present treatment at the Broward Methodone Maintenance Rehabilitation and Research Facility and the Christian Mental Health Clinic or in the al alternative, during the period that he is enrolled in the drug treatment program selected by DHRS, whichever occurs first. DONE and ORDERED this 26th day of February, 1986, in Tallahassee, Florida. W. MATTHEW STEVENSON, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of February, 1986. COPIES FURNISHED: Steven Rowitt 5966 N.W. 28th Street Sunrise, Florida 33313 Harold L. Braynon, Esquire District X Legal Counsel Department of Health and Rehabilitative Services 201 West Broward Boulevard Fort Lauderdale, Florida 33301 David Pingree Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 Steve Huss, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding of Fact 4. Adopted in Finding of Fact 10. Adopted in Finding of Fact 9. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Findings of Fact 6 and 7.I Partially adopted in Findings of Fact 12 and 21. Matters not contained therein are rejected as unnecessary. Rejected as subordinate and not supported by competent substantial evidence. Partially adopted in Findings of Fact 6 and 7. The third sentence is rejected as not supported by competent substantial evidence. Adopted in Findings of Fact 14. The first sentence is rejected as not supported by competent substantial evidence. The last two sentences are rejected as subordinate. Partially accepted in Finding of Fact 10. Matters not contained therein are rejected as subordinate. Rejected as argumentative. Adopted in Finding of Fact 16. Rejected as legal argument. Partially adopted in Finding of Fact 22. Matters not contained therein are rejected as not supported by competent substantial evidence.
Findings Of Fact Since 1904, a group of citizens in Tampa has paid weekly or monthly fees entitling each member to medical care as needed at little or no additional expense. Medical facilities for the group have been housed in a hospital building in Ybor City. In 1939, A. A. Gonzalez, a physician, gained control of these physical facilities. The A. A. Gonzalez Hospital Corporation acquired a 34 bed hospital. A. A. Gonzalez was president of the corporation until his death in 1953, when his widow, Lucia Gonzalez Nuniz, became president and treasurer of the corporation, positions she still holds. Aurelia Gonzalez- Risler, daughter of A. A. Gonzalez, now chairs the corporation's board of directors and is an executive vice-president of the corporation. There were some 6,000 members of this mutual aid medical society in 1976, but membership has fallen off considerably since then. Respondent has at least two subdivisions with whom hospitals in Florida sometimes come into contact. There is the Office of Licensure and Certification and there is the separate and distinct Office of Community Medical Facilities. The Office of Licensure and Certification employs architects and others who review plans for health care facilities in an effort to insure that they will comply with standards designed to protect the public health and safety. Among other things, these standards cover hospital laboratories, pharmacies, radiology departments, fire control, sanitation, and general physical plant requirements. See Chapters 395 and 400, Florida Statutes, and Chapter 10D-28, Florida Administrative Code. In furtherance of its objectives, the Office of Licensure and Certification also conducts periodic hospital inspections. Respondent's Office of Community Medical Facilities, on the other hand, administers the certificate of need program, an elaborate regulatory scheme intended to reduce health care costs by preventing unnecessary capital outlays by health care providers. Under this program, health care facilities or health maintenance organizations apply for certificates of need as a legal prerequisite to constructing new facilities, making certain capital expenditures, or taking certain other steps. See Sections 381.493 through 391.497, Florida Statutes, and Chapter 101, Florida Administrative Code. Preparation of an application for a certificate of need is a substantial undertaking. Before a proposed hospital is built, both a license from respondent's Office of Licensure and Certification and a certificate of need from respondent's Office of Community Medical Facilities are ordinarily required. At all pertinent times, the Office of Licensure and Certification had an official policy of referring inquiries about certificates of need to the Office of Community Medical Facilities. In addition, there was an unwritten agreement between the two offices that the Office of Licensure and Certification would issue no license until the license applicant had obtained either a certificate or need or a letter from the Office of Community Medical Facilities stating that no certificate of need would be required. Respondent's Office of Licensure and Certification conducted inspections of petitioner's facilities on February 5, 1976, on March 22, 23 and 24, 1976, on October 7, 1976, and again on October 24, 1976. As a result of these inspections, numerous deficiencies were pointed out to the petitioner. Some of these were readily correctable, but others, including the installation of new plumbing and widening the corridors, would have required substantial outlays. On December 20, 1976, Oscar Gonzalez, then petitioner's administrator, Mrs. Nuniz, Mr. Gilbert Flores, an architect retained by petitioner, and employees of respondent, Messrs. Owen, Schilling, Stankaitis, Insley, Burton and Honeywell, met in Jacksonville. Petitioner's counsel, J.J. Craparo, initiated arrangements for this meeting but did not attend. "At this meeting, many possibilities were discussed, including extensive renovation and replacement facilities," Respondent's exhibit No. 1, and including the requirement that a hospital building comply with the more stringent code standards applicable to new buildings if more than half the value of the building is expended on renovation, in a twelve month period. As a practical matter, petitioner's building could not be altered to comply with the code standards applicable to new buildings. During the meeting on December 20, 1976, Mr. Flores made a telephone call to determine whether land adjacent to the existing building would be available. Everybody at the meeting was under the impression that a project on the scale necessary to correct the deficiencies at A.A. Gonzalez Clinic and Hospital would require a certificate of need. Mr. Burton said as much. Every employee of respondent in attendance worked for the Office of Licensure and Certification. None was familiar with every exemption from the requirement that certificates of need be obtained. Petitioner's representatives relied on respondent's employees for their information. At this meeting, Louis Norman Schilling strongly urged that petitioner build a replacement facility rather than attempt renovation, a recommendation be repeated in a meeting on January 3, 1977, with Oscar Gonzalez, Gilbert Flores and Alberto Gonzalez del Barrio. At the time, Mr. Schilling worked for respondent. He is now an architect in private practice whom petitioner has retained in its efforts to build a replacement facility. At the meeting on January 3, 1977, Mr. Schilling advised petitioner's representatives that they would have to have a certificate of need or a "waiver letter" before proceeding with construction. After considering various alternatives, including the possibility of building a new hospital with 50 beds, petitioner decided to build a 34 bed replacement facility adjoining the existing building, which could then be used for doctors' offices and out patient services. As early as the summer of 1976, Mr. Schilling, at the behest of his supervisor, Mr. Rosenvold, told petitioner's representatives to contact the Florida Gulf Health Systems Agency (HSA) about applying for a certificate of need. The HSA is a non profit federally funded organization that makes recommendations on certificate of need applications to respondent's Office of Community Medical Facilities. In January of 1977, Oscar J. Gonzalez and other persons connected with petitioner met with Gary Silvers, the HSA's director of project review. They told Mr. Silvers that they needed to act to meet the objections of the Office of Licensure and Certification. Among the possibilities discussed was a new facility with expended services. Mr. Silvers did not advise petitioner's representatives that an exemption from the certificate of need review process was available to them. Instead, he recommended that they obtain technical assistance in preparing an application and suggested that they contact Michael J. Maffe, a consultant. Acting on this suggestion, petitioner entered into negotiations with Mr. Maffe which resulted in an agreement between petitioner and Health Research & Planning Associates, Inc., of which Mr. Maffe was president. Under the terms of this agreement, which was entered into in April of 1977, petitioner paid the consultant seventy- five hundred dollars ($7,500.00). Mr. Silvers received a letter from petitioner dated March 9, 1979, petitioner's exhibit No. 4, which he accepted as a letter of intent to file an application. The HSA forwarded this letter to respondent's Office of Community Medical Facilities, which received it on March 24, 1977. Some of the money used to finance the initial phases of the project came from Ybor Community Hospital and Health Care Center, Inc. (YCHHCC) a separate corporation whose board of directors overlaps petitioner's. Several physicians contributed to capital to YCHHCC, including Dr. Muniz ($18,000.00), Dr. Angel Alonso ($10,000.00 individually), Dr. Jorge Capote ($6,000.00), Dr. Victor A. Mallea ($2,000.00 individually), Drs. Mallea, Montoya and Alonso ($7,500.00 jointly), and Dr. Michael Martinez-Corpas ($2,000.00). Some $25,000.00 was expended on architects' fees, consultants' fees and the like before July 1, 1977, alone, in efforts to obtain certificate of need. As a result of petitioner's facility's deterioration, membership in the health care plan has fallen off, and people who have remained members frequently choose to be hospitalized elsewhere or are sent elsewhere by their physicians. Before July 1, 1977, petitioner received dues of between $30,000.00 and $35,000.00 monthly. By the time of the hearing, receipts had fallen off to about $15,435.00 monthly. At the hearing, the parties stipulated that, until July 1, 1977, petitioner could lawfully have renovated or replaced the facility without a certificate of need, but would have required a certificate of need as a legal prerequisite to an expansion. Petitioner only learned this after July 1, 1977. Respondent first acknowledged that this was the case on May 22, 1979. But for being misled about the necessity for a certificate of need, petitioner would have begun construction of a replacement facility before July 1, 1977. The foregoing findings of fact should be read in conjunction with the statement required by Stuckey's of Eastman, Georgia v. Department of Transportation, 340 So.2d 119 (Fla. 1st DCA 1976), which is attached as an appendix to the recommended order.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent issue petitioner a certificate of need for the replacement of existing facilities on condition that construction begin within one year of the final order. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 30th day of August, 1979. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of August 1979. APPENDIX Paragraphs two, eight through eighteen, twenty, twenty-one, twenty-three through thirty-one, thirty-four, thirty-six, thirty-seven, forty through forty- two, forty-four and fifty-one of petitioner's proposed findings of fact have been adopted, in substance, insofar as relevant. Paragraph one of petitioner's proposed findings of fact has not been adopted because the income levels and ethnic backgrounds of the membership were not proven. Paragraph three of petitioner's proposed findings of fact has not been adopted because the uncontroverted testimony was that predecessor institutions dated from 75 not 71 years ago. Paragraph four of petitioner's proposed findings of fact has been adopted, in substance, except that the the name is A. A. Gonzalez Clinic & Hospital. Paragraphs five through seven of petitioner's proposed findings of fact have not been adopted because they were not proven. Paragraph nineteen of petitioner's proposed findings of fact has been adopted in substance, insofar as relevant, except that the weight of the evidence was that Mr. Rosenvold was not present. Paragraph twenty-one of petitioner's proposed findings of fact has been adopted in substance, insofar as relevant, but this advice was also given before December 20, 1976. Paragraph thirty-two of petitioner's proposed findings of fact has been adopted, in substance, except that expenses incurred since July 1, 1977, were not proven, according to the hearing officer's notes. Paragraph thirty-three of petitioner's proposed findings of fact has been adopted, in substance, insofar as relevant, except that respondent's Office of Community Medical Facilities did receive petitioner's letter forwarded to it by the HSA. Paragraphs thirty-five, forty-five through fifty and fifty-three are properly conclusions of law. Paragraph thirty-eight of petitioner's proposed findings of fact has not been adopted because is was not proven. Paragraph thirty-nine of petitioner's proposed findings of fact has been adopted in substance, except that the evidence did not establish any change in official policy after the summer of 1976. Paragraph forty-three of petitioner's proposed findings of fact has been adopted in substance insofar as relevant except that the evidence showed that counsel advised petitioner of this situation before May 22, 1979 (but after July 1, 1977). Paragraph fifty-two of petitioner's proposed findings of fact has not been adopted because petitioner was also given the choice of ceasing its operations. COPIES FURNISHED: Jean Laramore, Esq Kenneth G. Oertel, Esq. Suite 600, Lewis State Bank Building Tallahassee, Florida 32302 Amelia M. Park, Esq. Department of Health and Rehabilitative Services 4000 W. Buffalo Avenue Tampa, Florida 33614
The Issue The issue is whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Petition for Relief filed by Petitioner in September 1999.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Because of a "gut feeling that something was wrong" when he was not hired, Petitioner, Ausbon Brown, Jr. (Petitioner), an African-American male born on April 25, 1943, filed a complaint alleging that Respondent, Department of Children and Family Services (Department), unlawfully refused to hire him for any one of four positions he applied for on account of his race, gender, and age. The Department denies the allegation and contends that it hired the most qualified employee in each instance. After a preliminary investigation was conducted by the Florida Commission on Human Relations (Commission), which took over twenty months to complete, the Commission issued a Determination: No Cause on August 18, 1999. Although not specifically established at hearing, it can be reasonably inferred from the evidence that Respondent employed at least fifteen employees for each working day in each of twenty or more calendar weeks in the current or preceding year and thus is an employer within the meaning of the law. Petitioner received a Bachelor of Science degree in biology in 1965 from Florida A&M University, a Master of Science degree in wildlife and fisheries science in 1978 from Texas A&M University, and a doctorate in wildlife and fisheries science in 1991 from Texas A&M University. Petitioner's job applications reflect that from June 1965 until April 1994, he worked in various positions for the U. S. Department of Commerce, National Marine Fisheries Service, including as a "survey statistician," "operations research analyst," "chief turtle headstart," "fisheries biologist," "fisheries technician," and "equal opportunity employment counselor." Petitioner then apparently retired from federal service. Beginning on July 28, 1995, and continuing for several years, he was employed as a child support enforcement case analyst with the Florida Department of Revenue (DOR). His current employment is not of record in this case. Although Petitioner says he applied "continuously" for at least fourteen positions with the Department after leaving federal service, only four applications are in issue here. They involve positions 012123, 10081, 60287, and 60288. Position 012123 was a Management Review Specialist in the Department's Tallahassee district office ; position 10081 was an Operations and Management Consultant II at the Northeast Florida State Hospital in Macclenny; position 60287 was an Operations and Management Consultant II in the Department's Daytona Beach district office; and position 60288 was an Operations and Management Consultant II at the Department's central office in Tallahassee. Position 60287 was originally assigned to the Family Safety and Preservation Program in District 12 and required that the applicant have experience in child neglect and foster services. It was first advertised through a Job Opportunity Announcement (JOA) published on December 24, 1996. Because it was a "highly responsible" position that more closely fit within District Administration, the position was later "pulled" from the Family Safety and Preservation Program and transferred to District Administration. On January 8, 1997, Jane Miller (Miller), a black female and at that time a Program Administrator for the Family Safety and Preservation Program, submitted an interoffice memorandum requesting that she be given a 2-step demotion from pay grade 25 to 23, so that she could fill the position. It can be inferred from the evidence that her request for a demotion was due to a legislatively-mandated reorganization in 1997 that eliminated or transferred a number of positions. Because it was in the best interest of the Department, and Miller was fully qualified to assume the position, the Department decided to fill the slot through a demotion rather than from the applicant pool, and Miller's request was granted. After the position was transferred to District Administration, however, she demoted into another position involving day care licensure, rather than 60287. In response to the JOA, Petitioner timely filed his application. On January 14, 1997, he received a letter from the Department which advised that the position was being "filled by an employee who has taken a voluntary demotion with the department to assume this role." Although this ultimately turned out not to be true, when the letter was sent, the Department did in fact intend to fill the position through Miller's demotion, and thus it was an accurate representation at that time. The undersigned rejects the contention that the above letter, without a second letter to applicants explaining what actually occurred later, proves that there was discrimination. As noted above, after the January 14 letter was sent, the position was transferred to District Administration. A short time later, the reorganization of the Department was implemented, and Betsy Lewis (Lewis), a female whose age and race are unknown, filled the slot through a lateral reassignment that became effective on October 27, 1997. Prior to her reassignment, Lewis had held a similar position and was fully qualified. There was no evidence that the Department accepted Miller's demotion, then transferred the position to District Administration, and then laterally reassigned Lewis in order to deny Petitioner employment on account of his age, race, or gender. Position 60288, also an Operations and Management Consultant II, was located at the Department's central office in Tallahassee, Florida. Under current record retention requirements for that office, the Department purges "all records for employment received from individuals seeking employment but [who] were not hired" two years after the application deadline. Because more than two years have gone by since the application deadline, all of the records pertaining to the applicants who sought that position have been purged; therefore, a complete file relating to this position was not available at the final hearing. Position 60288 involved the compilation, analysis, and reporting of substance abuse data for the Department's substance abuse program. After he filed his application, Petitioner was given a telephone interview by Dr. L. E. Stivers, Program Administrator for Policy Integration & Information Systems. Although Petitioner says he had a "congenial interview" with Dr. Stivers, he was not considered because of a lack of proficiency in substance abuse language. Because Petitioner did not believe that knowledge of substance abuse was a prerequisite for a computer-related job in the substance abuse program, he asserted that Dr. Stivers was biased towards him, was "stretching for a reason to eliminate [him]," and used the lack of proficiency in drug abuse language as a pretext for not hiring him. These assertions have been rejected as not being credible. Of the candidates interviewed for the job, only three names were submitted to the Assistant Secretary for Substance Abuse for further consideration. Petitioner was not one of the three. Ultimately, a male (Robert Morrell) whose age and race are unknown, was hired for the job. That individual had direct experience in performing substance abuse data collection in the same department where the position was located, and he was the most qualified candidate. Position 10081, an Operations and Management Consultant II, was assigned to the Northeast Florida State Hospital in Macclenny, Florida. According to the vacancy announcement, the position's duties included "the support, consultation and guidance of the Unit Treatment and Rehabilitation Directors in the development and implementation of policies and procedures in the multi-discipline treatment and rehabilitation of mentally and physically ill residents in the area of Unit Operations." Thus, the position required that the individual have a working knowledge of the treatment of mental health patients and preferably a background in mental health. Petitioner met the minimum qualifications stated in the job announcement document and, along with seven other candidates, was given an interview. All candidates were asked the same questions. Petitioner contended that none of the questions asked were relevant, and most dealt with the "treatment of patients." This is hardly surprising, however, since the facility treats the mentally ill. A contention that the questions were unfair and were framed so as to exclude all "external" candidates has been rejected. The position was ultimately filled by Mary Jane Hartenstein (Hartenstein), a white female who was younger than Petitioner, and who received the highest score of all the applicants. At the time she was hired, Hartenstein served as a Unit Treatment Rehabilitation Director at the facility and was familiar with the treatment of mental health patients. She was the most qualified applicant because of her prior experience. The final position was 012123, a Management Review Specialist in the Tallahassee district office. The position called for familiarity with "planning, information resource planning, legislative budget requests, performance of needs assessment and knowledge of health and human services." John Girvin (Girvin), a white male whose age was the same as Petitioner, was ultimately selected for the job. Girvin had prior experience as a deputy secretary and assistant division director for the Department of Commerce and also served with the Historical Preservation Society. The evidence supports a finding that he was the most qualified person for the job. Notwithstanding the foregoing, Petitioner pointed out that when he had previously submitted his qualifications to his former employer (DOR) in 1996, he received a letter from DOR indicating that DOR "felt" that he qualified for a number of positions within the agency, including a Management Review Specialist. Therefore, Petitioner contended that this affirmation of qualifications by DOR also qualified him for the same type of position with another state agency, including the Department's position 012123. Assuming this to be true, it merely means that Petitioner met the minimum qualifications for such a position; it does not mean that he was the best qualified person for the job. As noted above, a more qualified individual was selected for the position. Petitioner further contended that nothing in the basic job announcement for position 10081 indicated that skills in "psychosocial" services were needed. That document, however, merely identified the minimum qualifications, and further details concerning the specific job requirements could have been obtained from the hospital's human resources office. Petitioner has also contended that existing employees of an agency have an advantage over "external" candidates since they can more easily obtain direct experience in the desired area as well as information about "vital criteria" for the job. Even if this is true, it does not equate to a discriminatory practice within the meaning of the law. Moreover, the evidence here shows that the most qualified person was hired in each instance. Finally, Petitioner asserts that the Department violated various Department of Management Services rules in the hiring process, such as failing to timely notify him after Wilson did not actually demote into position 60287, and ignoring the generic minimum qualifications which apply to similar positions in all agencies. The latter claim has been rejected, but even if a technical error occurred, such as the Department failing to send a second letter regarding position 60287, such action was harmless and was not taken with discriminatory animus. In summary, there was no credible evidence that the Department "chang[ed] classifications and var[ied] conditions of employment" in an effort to deny Petitioner employment, or that the Department's actions were a pretext for discrimination, as alleged in the Petition for Relief. Further, there is no evidence that the employment decisions were grounded on discriminatory animus in any respect, or that a discriminatory reason motivated the Department in its actions.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing, with prejudice, the Petition for Relief. DONE AND ENTERED this 13th day of April, 2000, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (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 13th day of April, 2000. COPIES FURNISHED: Ausbon Brown, Jr. Post Office Box 289 Daytona Beach, Florida 32636 Kevin E. Hyde, Esquire Natasha A. Garrison, Esquire Foley & Lardner 200 Laura Street Jacksonville, Florida 32202 Daniel T. Medved, Esquire Department of Children and Family Services 210 North Palmetto Avenue, Suite 412 Daytona Beach, Florida 32114-3269 Sharon Moultry, Clerk Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
