The Issue Whether Respondent violated Sections 456.072(1)(k) and 464.204(1)(b), Florida Statutes (2001), and, if so, what penalty should be imposed.
Findings Of Fact Effective July 1, 1997, Petitioner is the state agency charged with regulating the responsibility for regulation and discipline of the nursing practice within the State of Florida. Respondent is a certified nursing assistant (CNA) holding Florida nursing certificate number CX 0993266675590. In December 2001, Respondent was employed as a CNA at Beverly Health Care, now known as Seacrest Health Care of Largo. Patient F.K. was a dementia patient in her advanced years and was not coherent or responsive. She was a total care patient, which required staff to perform all activities of daily living for her, such as mouth care, showers, feeding, dressing, bathing, and getting her into and out of bed. Patient F.K. did not speak, but did have a tendency to hum loudly and continuously. On December 20, 2001, Respondent was in Patient F.K.'s room following Patient F.K.'s return from lunch. Respondent called another CNA, Sheleta Cunningham-Talley, into Patient F.K.'s room, and Respondent engaged her in conversation. At that time, Patient F.K. was humming, as she often did. Respondent said to Talley, "watch how I shut this bitch up" and then proceeded to strike Patient F.K. on the face and throat. Patient F.K.'s face and neck turned red, and she became visibly upset after being struck. Beverly Health Care has a policy that residents have a right not to be physically abused. CNAs are under a legal or statutory duty not to hit or abuse patients. Striking a patient in the face and throat is a violation of that duty to not physically abuse a patient. Agnes Kelly is a registered nurse who was employed at Beverly Health Care during Respondent's employment there. Kelly has practiced as a registered nurse since 1994. She was a weekend supervisor at Beverly Health Care and supervised approximately 25 nursing employees which included a number of CNAs. Kelly has supervised nursing staff and CNAs for approximately nine years, and, as such, is familiar with the duties and responsibilities of CNAs. It is her opinion that Respondent violated her duty not to physically abuse a patient. Based on the foregoing, the evidence is clear and convincing that Respondent violated Sections 456.072(1)(k) and 464.204(1)(b), Florida Statutes (2001), by intentionally violating the statutory and legal obligation of CNAs to not physically abuse or hit a patient.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner issue a final order finding Respondent guilty of violating Sections 456.072(1)(k) and 464.204(1)(b), Florida Statutes (2001), and revoking Respondent's certification and requiring Respondent to pay the costs of investigation and prosecution of this matter. DONE AND ENTERED this 22nd day of July, 2003, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 22nd day of July, 2003. COPIES FURNISHED: Kim M. Kluck, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Pearla M. Mixon 4365 Tuna Drive, Southeast St. Petersburg, Florida 33705 Dan Coble, R.N., Ph.D., C.N.A.A. C., B.C. Executive Director Board of Nursing Department of Health 4052 Bald Cypress Way, Bin C02 Tallahassee, Florida 32399-3252 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue Whether the School Board of Broward County's decision to award the contract in response to Request for Proposals, No. 210139V, for Group Medical Benefits, to Humana, Inc., Humana Medical Plan, Inc., and Humana Health Insurance Company of Florida, Inc. (collectively called "Humana") is contrary to the agency's governing statutes, the agency's rules or policies, or the request for proposal specifications.
Findings Of Fact The Procurement The procurement at issue is for group employee medical insurance benefits for SBBC employees and their dependents. As one of its employee benefits, the SBBC provides health care insurance to approximately 26,000 employees. Generally, an employee must pay five percent of the premium if he or she is enrolled in a plan, other than a health maintenance organization plan, whose premium cost exceeds $212 per month. The employees can also purchase coverage for their eligible dependents. On July 10, 2000, the SBBC issued RFP No. 21-139V entitled "Group Medical Benefits for School Board Employees" (the "RFP"). On July 31, 2000, the SBBC released Addendum Number One to the RFP that consisted of written responses to proposers' questions and minor changes to the RFP. Proposers were permitted to offer any or all of three healthcare delivery models or any combination of the three: a health maintenance organization ("HMO") model; a point of services ("POS") model; and a preferred provider organization ("PPO") model. SBBC reserved the right to contract for one or more models independently or contract for multiple models from the same proposer. SBBC received proposals from seven companies, including Humana, AvMed, HIP Health Plan of Florida, Inc. ("HIP"), and United Healthcare of Florida ("United"), on August 18, 2000, as scheduled by the RFP. The School Board evaluated the proposals through the Superintendent's Insurance Advisory Committee (the "Insurance Committee"), who then made a recommendation to the Superintendent, who in turn made a recommendation to the School Board. Prior to the issuance of this RFP, during the year 2000, health care coverage was provided to employees of SBBC through contracts with HIP and with Foundation Health, a Florida Health Plan ("Foundation"). Those contracts, at guaranteed premium rates, were to remain in effect through December 31, 2001. Due to enduring problems with HIP and Foundation, the School Board became concerned that both companies may be unable to continue to perform under their contract. In the course of communication with SBBC during 2000, Foundation requested to be released from further obligations as of December 31, 2000, under its existing contract awarded June 15, 1999, under the previously issued RFP No. 99-100E. The open enrollment period for 2001 health plan election by SBBC employees was scheduled for October 30, 2000. While HIP participated in the open enrollment process whereby SBBC employees could select their health care plans, Foundation did not participate. SBBC filed a lawsuit against Foundation on October 23, 2000, for relief including breach of contract. In June 2000, HIP was declared "impaired" by the Florida Department of Insurance ("DOI") and ceased the enrollment of new members as required for impaired insurers. DOI placed HIP under "administrative supervision" pending a sale or liquidation of the company. In a letter dated September 6, 2000, DOI notified SBBC that HIP’s enrollment of new members was suspended pending an acquisition or cash infusion to cure the financial deficit. Shortly thereafter, in a letter dated October 18, 2000, DOI notified SBBC that HIP had been acquired by a new owner, was free of the restrictions noted in the September 6, 2000, letter, and permitted to enroll new members. HIP participated in the employee enrollment for the 2001 calendar year. Issuance of RFP No. 21-139V In light of the circumstances surrounding its incumbent vendors for group medical benefits, SBBC decided to issue a new RFP for new contracts providing group medical benefits for SBBC employees and dependents. On July 10, 2000, SBBC released RFP No. 21-139V entitled "Group Medical Benefits for School Board Employees." RFP Content Article 1, entitled "Required Response Form," requested general information about each proposer seeking to bid. Article 2.0 of the RFP entitled "Introduction" authorized proposers to quote any or all of three delivery models (HMO, POS, and PPO) for the employees and retiree groups and reserved the right for SBBC to award additional points to proposers who quoted all three delivery models. It also authorized SBBC to "contract for one or more models independently or to contract for multiple models from the same vendor." Article 2.0 of the RFP further stated that "Proposers must bid on the Current Plan Designs" and referred proposers to the then existing HIP certificates of coverage contained in Attachment G of the RFP. Proposers were invited to include one alternate plan for each delivery model quoted and referred proposers to a skeletal framework for such models contained in Attachment N of the RFP. Article 3, entitled "General Conditions," provided the RFP's deadlines and conditions. Section 3.7 indicated that "In a competitive procurement process no submissions made after the proposal opening, amending or supplementing the proposal shall be considered." However, Section 3.8 specifically authorized the Evaluation Committee and/or SBBC to "waive irregularities or technicalities in proposals received." Article 4 and Article 5 did not appear in the RFP at issue. Article 6, entitled "Interpretations," referred proposers who had questions to the SBBC purchasing department. Article 7 of the RFP was clearly marked as "Minimum Eligibility Criteria." In past RFP's, SBBC included extensive minimum eligibility criteria for proposers seeking to bid. In the RFP at issue, SBBC minimized the criteria to encourage competing proposals and to afford flexibility to SBBC in solving its immediate employee health care needs. Accordingly, Article 7 set forth only one minimum eligibility criterion. It stated: In order to be considered eligible for this assignment, proposer shall meet or exceed the following criteria: The proposer shall be licensed in good standing in the State of Florida to conduct health insurance business, and/or be a non- profit health care corporation licensed to transact business in Florida. All proposals which complied with Article 7 were considered by the agency. Any deviations in the proposals were contemplated by the Insurance Committee and considered in scoring the proposals. Article 8 of the RFP, entitled "Information to be included in the submitted proposal," requested applicants to organize their proposals in the specified manner. Subsections of Article 8 requested a Title Page (8.1), Table of Contents (8.2), Letter of Transmittal (8.3), Response Form (8.4), Notice Provision (8.5), and an Addenda Letter (8.6). Additional subsections in Article 8 of the RFP requested applicants to provide validation of their minimum eligibility (8.7), responses to the Attachment E questionnaire for each proposed plan (8.8), records of their experience and qualifications (8.9), a detailed plan for providing SBBC's requested scope of services (8.10), and a cost proposal for each plan (8.11). Noteworthy, Subsection 8.10.9 of Section 8.10 provided the applicant with proposed "assumptions/requirements" that "should be considered" when preparing a response to the RFP. For each proposed assumption listed in Subsection 8.10.9, three separate response columns were provided bearing the headings "Yes, Can Comply"; "Yes, Can comply but with deviations"; and "No, Cannot comply." For example, included within Subsection 8.10.9’s list of proposed assumptions to be considered by the applicant was the following: Variations in actual enrollment shall have no effect on your rate quotation. Your proposal shall be valid regardless of the actual enrollment mix, number of proposers, number of plan designs or outcome. By providing three separate response columns in the RFP, SBBC clearly invited a range of responses from proposers that would permit a proposal to differ from the proposed "assumptions/requirements." Although Section 8.11 of the RFP stated, in part, that "[n]o conditions or qualifications (e.g. participation requirement) to the quoted rates are acceptable," only Section 8.7 specifically addressed the disqualification of a proposal. Section 8.7, entitled "Minimum Eligibility" clearly restated that the "Proposer shall validate each criteria stated in Section 7 as required in said Section. Failure to comply with the requirements of Section 7 will disqualify the proposal from further consideration." Disqualification arose not for non- compliance with an Article 8 component, but rather for a failure to satisfy the minimum eligibility criteria contained in Article 7. Section 8.10 of the RFP entitled "Scope of Services Provided," requested an explanation of the proposed plan. Specifically, it stated: The following services are requested by SBBC in the provision of group medical coverage to its employees and retirees (including KID’s programs). Clearly describe how the proposer can accomplish each of the following Scope of Services provided below. . . . Moreover, Article 9 of the RFP, entitled "Evaluation of Proposals," clearly reserved to the Insurance Committee "the right to short list the proposers, interview them, and negotiate any term, condition, specification or price with the selected proposer(s)." The wide latitude of discretion plainly conferred upon the Insurance Committee by this provision is consistent with the minimum eligibility criteria contained in Article 7 and with the reservation of the right in Article 2 to contract for one or more models independently or contract for multiple models from the same vendor(s). Article 10 of the RFP, entitled "Special Conditions" detailed general conditions of the RFP. Specifically, Section 10.37 of the RFP, entitled "Acceptance and Rejection of Proposals," provided that a proposal "may be rejected if it does not conform to the rules or requirements contained in this RFP." This section listed permissive grounds for possible RFP rejection including conditional proposals and instances in which the "proposer adds provisions reserving the right to accept or reject an award or to enter into a contract pursuant to an award or adds provisions contrary to those in the RFP." Finally, Article 11 of the RFP, entitled "Requirements of Agreement," clearly and separately identified a list of "provisions that are not subject to negotiation." There is no evidence in the record that any proposer included provisions in its proposal which conflicted with Article 11. Issuance of Addendum Number One Shortly after SBBC released the RFP, at least two proposers sought clarification of Subsection 10.37.6. On July 31, 2000, SBBC released Addendum Number One to the RFP which responded to proposers’ questions and made minor changes to the RFP. In the Addendum, SBBC addressed the following question: "Is SBBC stating in this section that ANY deviations from the Proposer, in response to RFP 21-139V, will result in the Proposer’s automatic rejection from this bid process? Please clarify." In response, the SBBC stated: There are provisions in this RFP which provide proposers the opportunity to submit an additional plan design for each delivery model quoted. See Section 2.0. However, a proposer who adds provisions to its proposals reserving the right to accept or reject an award, reserving the right to enter into a contract pursuant to an award, or add[s] provisions in its proposal which are contrary to the wording in the RFP, as amended, would have its proposal rejected. The Proposals On August 18, 2000, proposals were submitted to SBBC’s Purchasing Department. SBBC received proposals from the following seven (7) proposers: AvMed; Beacon Health Plans, Inc. ("Beacon"); HIP; Humana; The Maxon Company ("Maxon"), UniPsych Corp. (UniPsych"); and United Healthcare of Florida ("United"). The Humana Proposal In its proposal, Humana responded "Please see comments on rate pages (Attachment D)" under the "No, Cannot comply" column in response to the proposed "assumption/requirement" in Subsection 8.10.9 of the RFP that "variations in actual enrollment shall have no effect on your rate quotation. Your proposal shall be valid regardless of the final enrollment mix, number of proposers, number of plan designs or outcome." Humana’s response to this portion of the RFP was identified to the Insurance Committee as a deviation from the RFP and was considered when scoring the proposals. The Financial Response Forms contained in Attachment D of Humana’s proposal for HMO, POS, PPO and modified PPO health products that were referenced in its response to Subsection 8.10.9 stated as follows: The following contingencies apply: Rates and benefits are contingent upon a minimum of 10,000 employees enrolled in Humana plans. Proposed rates and benefits assume a maximum of two carriers. The competing carrier must have similar benefits, covered services, and plan types. SBBC’s incentive strategy must be such that the amount the employee is required to contribute to the Humana plan shall be equal to or less than the employee’s contribution toward the competitor’s plan. These provisions were actuarial assumptions reasonably used by Humana to price the benefits proposed to SBBC. Humana’s response to this portion of the RFP was identified to the Insurance Committee as a deviation from the RFP and considered when scoring the proposals. In response to Subsection 8.10.9 of the RFP, Humana also responded to the proposed "assumptions/requirements" that "[a]ctively-at-work provisions shall be waived for all participants" and that "[t]here shall be no exclusion provisions for pre-existing conditions, except for late entrants" by stating under the heading, "Yes, Can comply but with deviations" that it will waive those terms "if Humana is offered as full replacement." Humana’s response to these portions of the RFP was identified to the Insurance Committee as deviations from the RFP and considered when scoring the proposals. In its formal written protest, AvMed, in part, contests the portion of Humana’s proposal that states "[p]erformance guarantees will apply only if a minimum of 10,000 employees enroll in Humana plans." This response is consistent with the compliance matrix in Subsection 8.10.9 and with Section 10.42 of the RFP which stated that "SBBC may negotiate performance standards and performance guarantees with the selected proposer(s)." In addition, the performance standards guarantees, contained in Attachment K of the RFP, invited proposers to "[p]lease review the outlined proposed performance standards and liquidated damages." Although Humana labeled each plan design it proposed as an "alternate plan," it clearly sought to closely match them with the current HIP certificates of coverage contained in Attachment G of the RFP. While structured differently, Humana’s HMO (Alternative Plan 1) generally matched the benefits contained in the current HIP HMO certificate of coverage with minor variances in certain benefits. Humana offered slightly modified benefits by eliminating a $300 hearing aid benefit, requiring a co-payment of $10 for maternity office visits, providing a three-tier structure for retail and mail order prescriptions, slightly increasing the out-of-pocket maximums, and eliminating a benefit for mildly ill child care services. Humana however, offered enhanced benefits by including coverage for non-formulary retail and mail order prescriptions, and abolishing the limit on days/visits for physical, speech and occupational therapies, as well as home health care visits, and infertility treatment. The proposed modifications were considered by the Insurance Committee. Similarly, Humana’s proposed POS (Alternative Plan 1) generally matched the benefits contained in the current HIP POS certificate of coverage with minor differences. Humana offered modified benefits by omitting a $300 hearing aid benefit, using a three-tier structure for retail and mail order prescriptions, reducing visits for in-network mental health outpatient services, increasing the co-payment for in-network inpatient substance abuse, omitting coverage for in-network infertility treatment, increasing the co-payment for non-surgical spine and back treatment and limiting visits per year for the same, placing a maximum on benefits for in-network and out-of-network hospice care, and placing a $5 million limit on lifetime benefits. On the other hand, Humana offered enhanced benefits by eliminating limitations for in-network or out-of-network rehabilitation visits, providing coverage of out-of-network ambulance care, increasing covered days for skilled nursing facilities, increasing visits for home health care and omitting co-payments for in-network care and increasing covered visits and omitting benefit limits for out-of-network care, and increasing the out-of-network lifetime benefits limit. Humana’s HMO and POS proposals also offered networks of acute care hospitals, primary care physicians, and specialty physicians, that were far superior to other proposals. Humana's proposals were thoroughly considered by the Insurance Committee during the evaluation process. Moreover, due to past problems with the SBBC incumbent providers, a financial rating report of the proposers was given to the Insurance Committee. Humana was reported to have an AM Best rating of "A- (excellent)." Ratings of B+ and above represent those companies that are considered secure in their ability to meet their ongoing obligations to members. The AvMed Proposal The AvMed proposal also contained health care delivery products corresponding to the Current Plan Designs contained in Attachment N of the RFP. However, their proposal failed to closely match the current HIP certificates of coverage contained in Attachment G of the RFP. The HMO product offered to SBBC by AvMed differed from the HIP model of coverage, at minimum, in the following respects: Current Benefit Description Certificate AvMed Proposal Maternity outpatient visits No co-payment Per visit $10 co-payment per visit Family Planning – sterilization $10 co-payment (office visit) $50 co-payment (hospital) $100 co-payment Physical, Speech and Occupational Therapy No co-payment 60 days from 1st day of treatment for acute $10 co-payment 24 days per condition Skilled Nursing Facility No co-payment 30 days/ $25 co-payment per day, up to calendar year; 100 days/ lifetime 20 days/ contract year Second Medical Opinion from No co-payment $10 co-payment a participating provider per visit Testing for Learning $200 co-payment No Benefits Disabilities for children 5 years and older Second Medical Opinion from 40% of No Benefits a Non-participating charges provider within the service area Durable Medical Equipment No co-payment $50 co-payment $5,000 annual $500 annual limit limit Mildly Ill Child Care $10 co-payment No Benefits Services (a qualified Limited to 3 participating provider days per arranged by carrier to calendar year per care for a sick child family coverage (up to age 12) during subscriber normal business hours Infertility Treatment No co-payment No Benefits (ncludes testing, counseling, $6,000 max per artificial insemination, lifetime in-vitro fertilization and injectable drugs) Prescription Drugs – $3 = 90 day $9 = 90 day Mail Order supply supply AvMed's proposed differences in benefits were identified and evaluated by the Insurance Committee during the evaluation of proposals. Moreover, the POS product proposed by AvMed as corresponding to the Current Plan Design differed in the following respects: Benefit Description Current Certificate AvMed Proposal Family Planning – Sterilization (in network) $10 co-payment (office) $200 co-payment (hospital) $10 co-payment per visit Family Planning – sterilization (out-of-network) $10 co-payment (office) $200 co-payment No Benefits (hospital) Physical, Speech and Occupational Therapy visits (in-network) No co-payment 20 visits per condition 80 visits per year $10 co-payment 24 (in-network) condition Skilled Nursing Facility (in-network) No co-payment up to 30 days calendar year $25 co-payment per day, up to 20 days/ contract year Second Medical Opinion from a participating provider No co-payment $10 co-payment Second Medical Opinion from non-participating provider within Service area a No co-payment No Benefits Testing for Learning Disabilities for children 5 years and older No co-payment No Benefits Durable Medical Equipment (in-network) No co-payment $5,000 annual Limit $50 co-payment $500 annual limit Durable Medical Equipment 65% of URC After Deductible $5,000 annual $50 co-payment $500 annual limit limit Mildly Ill Child Care Services (a qualified $10 co-payment limited to 3 No Benefits participating provider days per calendar arranged by carrier to care year per family for a sick child (up to coverage subscriber age 12) during normal business hours Infertility treatment No co-payment No Benefits (includes testing, counseling, $6,000 max per artificial insemination, lifetime in-vitro fertilization and injectable drugs)(in-network) Hospice Care (out-of-network) No co-payment No Benefits 210 days lifetime limit Prescription Drugs – Retail $7 (formulary) No Benefits (out-of-network) $21 (non-formulary) Prescription Drugs – mail $7 (formulary) $21 (formulary) order (in-network) $21 (non- $63 formulary) (non-formulary) Similarly, AvMed's proposed differences in benefits were thoroughly considered by the Insurance Committee during the evaluation process. AvMed submitted additional deviations in its proposal. Subsection 8.10.1 of the RFP listed a scope of services and requested each proposer to describe how their proposal could accomplish each item. One service listed was "Customer service lines for employees in Area Code 954, as well as a toll-free line for employees residing outside the 954 Area Code." The provision of customer service lines within the 954 area code is important for serving SBBC’s employees as many telephones within the school system will not dial an outside call in excess of 7 digits. In responding to Subsection 8.10.1 of its proposal, AvMed stated that it "offers toll free customer service lines for all members" which is "accessible from all locations inside and outside of the 954 area code." Due to the inability to access 800 service on several school properties, this response was identified to the Insurance Committee as a deviation from the provisions of the RFP and considered when scoring the proposals. Subsection 8.10.2 of the RFP requested proposers to describe how they can "participate and share in the cost of an independent employee satisfaction survey." In its proposal, AvMed stated its willingness to participate in the survey but was silent as to sharing in the survey cost. AvMed’s response was identified to the Insurance Committee as a deviation from the RFP and considered when scoring the proposals. Although Attachment E of the RFP instructed each proposer to "[p]rovide your organization’s most recent financial ratings (e.g., Moody’s, S&P, AM Best)," AvMed failed to provide it. As a result, an independent report was prepared and submitted to the Insurance Committee during the evaluation process reflecting the AM Best rating of AvMed’s financial status as "Bq (Fair)." The rating indicated that AvMed had not solicited the Best’s rating but was derived from publicly available financial data as well as other reliable information. Ratings of B and below are considered vulnerable with respect to their ability to meet their ongoing obligations to members. Specifically, a "B" rating denotes an ability to meet current obligations to members, but financial strength is vulnerable to adverse changes in underwriting and economic conditions. The HIP Proposal In its proposal, HIP also responded to the portion of Subsection 8.10.9 concerning "variations in actual enrollment" under the response column marked "Yes, can Comply but with deviations." HIP’s response stated, "At the request of the School Board of Broward County, HIP is willing to work with the School Board to reduce PPO rates." Its response comported with Subsection 8.10.9, was submitted to the Insurance Committee as a deviation from the RFP, and was considered when scoring the proposals. Section 10.42 of the RFP stated that SBBC may negotiate performance standards and guarantees with the selected proposer(s). In its Proposal, HIP agreed to this provision and responded that it had reviewed and understood its obligations under Section 10.8 of the RFP which concerned, in part, damages upon provision of non-conforming services. Similarly, HIP indicated a willingness to negotiate performance guarantees in its response to Attachment K of the RFP. The United Healthcare Proposal In its formal written protest, AvMed argued that portions of the United proposal were non-responsive requiring rejection of the proposal. In its proposal, United described certain rating assumptions utilized by its actuaries to prepare the rate quoted to SBBC. The assumptions generally concerned circumstances and the status quo existing under SBBC’s current providers and included an assumption that 50 percent of the eligible employees would participate in the coverage. The assumptions were identified to the Insurance Committee as deviations from the RFP and were considered when scoring the proposals. United also reserved the right to revise its quotation if the benefits or service requirements were changed. United Healthcare's reservation did not render conditional the rates offered for the benefits specified in the proposal and is consistent with Article 2 of the RFP which notified proposers that benefit levels may be subject to change due to changes in SBBC’s collective bargaining agreements. Subsection 10.37.2 of the RFP provides that a proposer will not be excused from "full compliance with the RFP specifications and other contract requirements if the proposer is awarded the contract." United agreed to Subsection 10.37.2 in its proposal and, consistent with Section 9.4, acknowledged that a formal agreement was to be negotiated and executed. United also stated that its proposal relied upon information provided by SBBC. In the event that such information proved false, United reserved the right to adjust its proposal. Section 10.16 of the RFP set forth the priority of documents in the event of a conflict of terms. While United suggested the parties conduct a conference to discuss any disputes, it concurred that the process described in Section 10.16 should be used as the primary method for resolution. Section 10.19 of the RFP included a hold harmless agreement. The provision included a statement that the proposer would be liable for damages or loss to SBBC arising from the proposer’s negligence. United expressly agreed to Section 10.19, but stated that it would not indemnify clients for the acts of network providers. The statement does not conflict with the provisions for indemnifying SBBC and clarifies any mistaken inference that United was assuming responsibility for the acts of third persons over whom United lacked control. Similarly, Subsection 10.31.2 of the RFP set forth a proposer’s obligations to indemnify SBBC and Subsection 10.31.1 set forth SBBC’s obligation to indemnify a proposer. United’s response to the subsectioins did not refute its obligations to indemnify SBBC, but simply reiterated its prior statement regarding an inability to indemnify enrollees for the acts of network providers over whom United lacked control. Subsection 10.41(a) of the RFP provided that no rate increase could occur until the end of any applicable rate guarantee period. Consistent with Section 9.4 which provided that any term or condition may be negotiated by the Insurance Committee with the selected proposer(s), United responded in its proposal that these requirements will be discussed if United is considered a finalist. As discussed earlier, Section 10.42 of the RFP provided that "SBBC may negotiate performance standards and performance guarantees with selected proposer(s)." Attachment K of the RFP invited each proposer to review certain "proposed" performance standards and liquidated damages. United properly responded to Attachment K, stating that the performance guarantees had been endorsed by its executive leadership and acknowledged that the allocation of fees at risk would be mutually agreed upon if United were selected as a finalist. Section 10.8 of the RFP addressed liquidated damages for non-conforming services and the filing of actions in Broward County courts. Consistent with Section 10.42’s provision for the negotiation of performance standards and guarantees, United agreed to negotiate the issue of damages. In addition, United suggested use of alternative dispute resolution by the parties. Evaluation and Scoring of Proposals The ultimate decision to issue the RFP and award contracts was made by SBBC. SBBC’s Superintendent maintains a standing committee known as the Insurance Committee which provides advice and input to the Superintendent regarding insurance issues, including the development of an RFP as well as the review and scoring of the proposals which are submitted in response to the RFP. The Insurance Committee makes recommendations to the Superintendent who, in turn, makes recommendations to SBBC. Section 9.1 of the RFP at issue was entitled "Evaluation of Proposals" and set forth the following process and criteria for the scoring of the proposals: The Superintendent’s Insurance Advisory Committee (hereinafter referred to as "Committee") shall evaluate all proposals received, which meet Section 7.0 Minimum Eligibility Requirements, according to the following criteria: CATEGORY MAXIMUM POINTS Experience and Qualifications 30 Scope of Services Provided 30 Minority/Women Business 10 Participation Cost of Services Provided 30 TOTAL 100 Additional points were awarded to proposers who quoted all three delivery models pursuant to Article 2. SBBC retained an independent consulting firm ("Consultant") to assist in the development of the RFP and the review and evaluation of the proposals. In addition to the Consultant, staff including SBBC’s Director of Benefits, Director of Risk Management, Director of Purchasing, M/WBE Compliance Director and legal counsel served as technical resources for the Insurance Committee at each meeting. The Insurance Committee met at least eight times and in excess of 39 hours to analyze, evaluate, score, and recommend an awardee from the proposals. All meetings were recorded and transcribed by a court reporter and entered into this record. Copies of the RFP, Addendum No. 1 and of the various proposals were provided and available at each Insurance Committee meeting. The Consultant prepared a voluminous document entitled "Analysis of Proposals" which was divided into sections corresponding to each of the health care delivery products submitted in the proposals. Each section provided a side-by-side comparison of each proposal submitted. Each section was further divided into subsections corresponding to experience and qualifications, scope of service and M/WBE that comprised the evaluation criteria categories other than cost. The Analysis of Proposals was provided and explained in detail to the Insurance Committee. The Consultant presented a document entitled "Listing of Proposal Deviations," which addressed the minimum eligibility criteria, scope of services, and other portions of the RFP. It provided a side-by-side comparison of each proposal and was thoroughly explained to the Insurance Committee. The Consultant also prepared a document entitled "Benefit Comparison," which provided a side-by-side analysis of the health care benefits submitted by each of the proposers and was thoroughly explained to the Insurance Committee. The Consultant prepared and presented an additional document entitled "Comparison of Existing Contract Costs and Proposed Costs by Plan Type" ("Cost Comparisons") which provided a side-by-side comparison by plan type along with cost and enrollment data for SBBC’s current benefits programs. Again, the Consultant hired an outside analyst to prepare a report regarding the financial stability of each proposer. It was presented and explained to the Insurance Committee on two occasions. Upon review of the proposals, the Insurance Committee immediately recommended rejection of the proposal submitted by UniPsych on the following grounds: Reject proposal from Unipsych Benefits of Florida. Proposer did not meet the Minimum Eligibility Criteria specified in Section 7.0. Additionally, proposer was deemed non- responsive to the requirements of this RFP for submitting a proposal for behavioral health care services only. On October 30, 2000, the Insurance Committee met and scored the proposals submitted by the proposers. The score sheets were structured to correspond to the evaluation criteria contained in the RFP. Three of the 11 members of the Insurance Committee testified at the formal hearing. Each stated that in scoring the proposals, he/she applied the evaluation criteria contained in the RFP to the materials submitted to him/her as a Committee Member for analysis of the proposals as well as the presentations made by the Consultant, technical staff, and proposers. The proposals of AvMed, Beacon, HIP, Humana, Maxon, and United were determined by the Insurance Committee to meet the RFP’s minimum eligibility requirements and each of these proposals was scored in accordance with the RFP. The scoring tabulation for the top four plans under each health care delivery model were as follows: HMO: Humana (Alternate Plan 1) 81.73 points; HIP (Match Current Plan) 79.82 points; AvMed (Match Current Plan) 75.63 points; United (Self-Insured Plan) 69.91 points; POS: Humana (Alternate Plan 1) 78.27 points; AvMed (Match Current Plan) 75.55 points, HIP (Alternative Plan 1) 75.27 points; HIP (Match Current Plan) 75.23 points; Modified PPO: United (Self-Insured Plan) 77.09 points; HIP (Match Current Plan) 76.56 points; Humana (Alternative Plan 1) 73.19 points; Maxon 60.45 points; PPO: Humana (Alternative Plan 1) 77.37 points; HIP (Match Current Plan) 77.00 points; United (Self-Insured Plan) 74.63 points; HIP (Alternative Plan 1) 73.83 points. Upon review of the scores for the 11 Insurance Committee Members, eight members scored Humana’s HMO (Alternative Plan 1) higher than AvMed’s HMO (Match Current Plan), nine members scored Humana’s HMO (Alternative Plan 1) higher than AvMed’s HMO (Alternate Plan 1), seven members scored Humana’s POS (Alternative Plan 1) higher than AvMed’s POS (Match Current Plan), and seven members scored Humana’s POS (Alternative Plan 1) higher than AvMed’s POS (Alternative Plan 1). Short-Listing , Negotiations and Recommendation After the proposals were scored pursuant to Section 9.1, the Insurance Committee was authorized to recommend award to the top-ranked proposer, to recommend award to more than one top- ranked proposer, to short-list the top-ranked proposers for further consideration or to reject all proposals received. After scoring the proposals, the Insurance Committee chose the top four proposed plans for each health care delivery product. After scoring the proposals, the Insurance Committee received a copy of a letter sent to the Superintendent by the chief executive officer of HIP. In this letter, HIP described three scenarios for the provision of medical benefits to SBBC employees in 2001 involving the continued provision of medical benefits by HIP under its existing contract with SBBC. The Insurance Committee determined it was impractical for each proposer’s representative to participate in post-scoring interviews and return for post-scoring negotiations. As such, the Insurance Committee voted to consolidate interviews and negotiations and provided each short-listed proposer, including AvMed, the opportunity to participate in interviews/negotiations with the Insurance Committee. Thereafter, each short-listed proposer was invited to attend a meeting of the Insurance Committee to negotiate and bind the proposer to contract terms. Humana negotiated a number of its terms with the Insurance Committee. AvMed was willing to negotiate the provision of a telephone service line within the local area code. Upon completion of the interviews/negotiations, the Insurance Committee voted to withhold the options of POS and modified PPO plans to employees due to minimal past enrollment interest. The Insurance Committee carefully considered at least four combinations of plans submitted in the proposals as well as eight combinations of plans submitted in the proposals with plans provided under HIP’s current contract. The Insurance Committee briefly considered combining AvMed’s HMO (Match Current Plan) with Humana’s Modified PPO (Alternative Plan 1); however, the terms of Humana’s proposal eliminated it from consideration in the proposed configuration. Another combination of plans discussed coupled AvMed’s HMO (Match Current Plan) with Humana’s HMO (Alternative Plan 1) and Humana’s PPO (Alternative Plan 1). The terms of Humana’s proposal eliminated it from consideration in the proposed configuration. The Insurance Committee also considered the combination of AvMed’s HMO with United’s PPO and the combination of Humana’s proposed HMO (Alternative Plan 1) and PPO (Alternative Plan 1) with the HMO and PPO plans provided by HIP under its current contract with SBBC. The individual Insurance Committee Members each ranked their top five combinations of plans. Their rankings were totaled and sent to the Superintendent of Schools as the Committee’s recommendation. Of the five combinations forwarded to the Superintendent, the Insurance Committee’s top-ranked combination of plans coupled Humana’s proposed HMO (Alternative Plan 1) and PPO (Alternative Plan 1) with the HMO and PPO plans provided by HIP under its current contract with SBBC. The fifth-ranked combination coupled AvMed’s proposed HMO (Match Current Plan) with United’s PPO product. Upon receipt and review of the recommendation, the Superintendent determined that SBBC’s collective bargaining agreements required that it continue to provide POS and Modified PPO plans to employees and directed the Insurance Committee to modify its recommendation to include them. The Insurance Committee reconvened and voted to add the POS and Modified PPO plans submitted by Humana to the combination previously recommended. Humana had the highest scored POS plan in the evaluation process and its Modified PPO was short-listed for consideration. AvMed did not propose a Modified PPO product under the RFP. The revised recommendation which included the POS and Modified PPO products was forwarded to and accepted by the Superintendent. He posted the recommendations/tabulations dated November 6, 2000, and recommended to SBBC that it award a contract to Humana for its HMO (Alternative Plan 1), POS (Alternative Plan 1), Modified PPO (Alternative Plan 1) and PPO (Alternative Plan 1) plans to be offered to SBBC employees along with the existing HMO, POS, Modified PPO and PPO plans under HIP’s current contract with SBBC. AvMed timely filed a Notice of Protest on November 9, 2000. The School Board awarded a contract to Humana under the RFP on November 9, 2000, declaring an immediate and serious danger to the public health, safety, or welfare pursuant to Section 120.57(3)(c), Florida Statutes, and on November 20, 2000, AvMed timely filed its Formal Written Protest.
Recommendation Based upon the foregoing Findings of fact and Conclusions of Law, it is RECOMMENDED that the School Board of Broward County, Florida enter a Final Order dismissing the Formal Written Protest filed by AvMed, Inc. d/b/a AvMed Health Plan. DONE AND ENTERED this 9th day of May, 2001, in Tallahassee, Leon County, Florida. WILLIAM R. PFEIFFER 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 9th day of May, 2001. COPIES FURNISHED: Andrew S. Berman, Esquire Young, Berman, Karpf & Gonzalez, P.A. 17071 West Dixie Highway North Miami Beach, Florida 33160 Joseph M. Goldstein, Esquire Shutts & Bowen, L.L.P. First Union Center 200 East Broward Boulevard, Suite 2000 Fort Lauderdale, Florida 33301 Edward J. Marko, Esquire Robert Paul Vignola, Esquire School Board of Broward County 600 Southeast Third Avenue, 11th Floor Fort Lauderdale, Florida 33301 Dr. Frank L. Till, Jr., Superintendent School Board of Broward County 600 Southeast Third Avenue, 11th Floor Fort Lauderdale, Florida 33301
The Issue Whether Respondent's proposal to accept the claim as compensable should be approved. If so, the amount and manner of payment of the parental award, the amount owing for attorney's fees and costs incurred in pursuing the claim, and the amount owing for past expenses. Whether notice was accorded the patient, as contemplated by Section 766.16, Florida Statutes (Supp. 1998), or whether the failure to give notice was excused because the patient had an "emergency medical condition," as defined by Section 395.002(9)(b), Florida Statutes (Supp. 1998), or the giving of notice was otherwise not practicable.
Findings Of Fact Findings related to compensability Juanita Ruiz and Miguel Angel Ruiz, are the natural parents and guardians of Michael A. Ruiz, a minor. Michael was born a live infant on August 14, 1998, at Jackson North Maternity Center, a hospital located in Dade County, Florida, and his birth weight exceeded 2,500 grams. Among the physicians providing obstetrical services at Michael's birth were Paul Norris, M.D., and Bel Barker, M.D., who, at all times material hereto, were "participating physician[s]" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes (1997).2 When it has been established that obstetrical services were provided by a participating physician at the infant's birth, coverage is afforded by the Plan if it is also shown the infant suffered a "birth-related neurological injury," defined as an "injury to the brain . . . of a live infant weighing at least 2,500 grams at birth caused by oxygen deprivation . . . occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." § 766.302(2), Fla. Stat. See also §§ 766.309 and 766.31(1), Fla. Stat. In this case, it is undisputed, and the proof is otherwise compelling, that Michael suffered severe brain injury caused by oxygen deprivation occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in the hospital which rendered him permanently and substantially mentally and physically impaired. Therefore, the claim is compensable, and NICA's proposal to accept the claim is approved. §§ 766.309 and 766.31(1), Fla. Stat. Findings related to the award When it has been resolved that a claim qualifies for coverage under the Plan, the administrative law judge is required to make a determination of how much compensation should be awarded. § 766.31(1), Fla. Stat. Pertinent to this case, Section 766.31(1), Florida Statutes, provided for an award of compensation for the following items: Actual expenses for medically necessary and reasonable medical and hospital, habilitative and training, residential, and custodial care and service, for medically necessary drugs, special equipment, and facilities, and for related travel . . . . Periodic payments of an award to the parents or legal guardians of the infant found to have sustained a birth-related neurological injury, which award shall not exceed $100,000. However, at the discretion of the administrative law judge, such award may be made in a lump sum. Reasonable expenses incurred in connection with the filing of a claim under ss. 766.301-766.316, including reasonable attorney's fees, which shall be subject to the approval and award of the administrative law judge . . . . In this case, Petitioners and NICA have agreed that, should Petitioners elect to accept benefits under the Plan, Petitioners recover the following award: Reimbursement of actual expenses already incurred in the sum of $190.65 together with the right to receive reimbursement of actual expenses for future medical bills pursuant to § 766.31(1)(a), Fla. Stat. A lump sum payment of $100,000.00 to the Petitioners in accordance with § 766.31(1)(b), Fla. Stat. Reimbursement of reasonable expenses, inclusive of attorney's fees and costs to the Petitioners, in the total sum of $10,580.33, pursuant to § 766.31(1)(c), Fla. Stat. The notice provisions of the Plan While the claim qualifies for coverage under the Plan, Petitioners have responded to the health care providers' claim of Plan immunity in a pending civil action, by averring that the health care providers failed to give notice, as required by the Plan. Consequently, it is necessary to resolve whether the notice provisions of the Plan were satisfied. O'Leary v. Florida Birth-Related Neurological Injury Compensation Association, 757 So. 2d 624, 627 (Fla. 5th DCA 2000)("All questions of compensability, including those which arise regarding the adequacy of notice, are properly decided in the administrative forum.") Accord University of Miami v. M.A., 793 So. 2d 999 (Fla. 3d DCA 2001); Tabb v. Florida Birth-Related Neurological Injury Compensation Association, 29 Fla. L. Weekly D1982b (Fla. 1st DCA August 30, 2004). See also Behan v. Florida Birth-Related Neurological Injury Compensation Association, 664 So. 2d 1173 (Fla. 4th DCA 1995). But see All Children's Hospital, Inc. v. Department of Administrative Hearings, 863 So. 2d 450 (Fla. 2d DCA 2004) (certifying conflict); Florida Health Sciences Center, Inc. v. Division of Administrative Hearings, 871 So. 2d 1062 (Fla. 2d DCA 2004)(same); and Florida Birth-Related Neurological Injury Compensation Association v. Ferguson, 869 So. 2d 686 (Fla. 2d DCA 2004)(same). At all times material hereto, Section 766.316, Florida Statutes (Supp. 1998), prescribed the notice provisions of the Plan, as follows: Each hospital with a participating physician on its staff and each participating physician, other than residents, assistant residents, and interns deemed to be participating physicians under s. 766.314(4)(c), under the Florida Birth- Related Neurological Injury Compensation Plan shall provide notice to the obstetrical patients as to the limited no-fault alternative for birth-related neurological injuries. Such notice shall be provided on forms furnished by the association and shall include a clear and concise explanation of a patient's rights and limitations under the plan. The hospital or the participating physician may elect to have the patient sign a form acknowledging receipt of the notice form. Signature of the patient acknowledging receipt of the notice form raises a rebuttable presumption that the notice requirements of this section have been met. Notice need not be given to a patient when the patient has an emergency medical condition as defined in s. [395.002(9)(b)][3] or when notice is not practicable. Pertinent to this case, Section 395.002(9)(b), Florida Statutes (Supp. 1998), defined "emergency medical condition" to mean: (b) With respect to a pregnant woman: That there is inadequate time to effect safe transfer to another hospital prior to delivery; That a transfer may pose a threat to the health and safety of the patient or fetus; or That there is evidence of the onset and persistence of uterine contractions or rupture of the membranes. Responding to Section 766.316, Florida Statutes, NICA developed a brochure, titled "Peace of Mind for an Unexpected Problem" (the NICA brochure), which contained a clear and concise explanation of a patient's rights and limitations under the Plan, and distributed the brochure to participating physicians and hospitals so they could furnish a copy of it to their obstetrical patients. (Petitioners' Exhibit 15, the NICA brochure, "This brochure is prepared in accordance with the mandate of § 766.316, Florida Statutes.") Findings related to the hospital and notice Pertinent to the hospital and the notice issue, the proof demonstrates that on Wednesday, July 22, 1998, Mrs. Ruiz, accompanied by her husband, presented for pre-registration at Jackson North Maternity Center, a hospital owned and operated by the Public Health Trust of Dade County at 14701 Northwest 27th Avenue, Opa Locka, Florida. At the time, consistent with established practice, Mrs. Ruiz was interviewed by a health service representative, and asked to provide pertinent personal and financial information for herself and her husband, including address, telephone number, place of employment, monthly wages and expenses, and the identity of any commercial insurer, so the service representative could complete a number of forms. At this time, the service representative also entered pertinent data regarding the Ruizes in the hospital computer data base. During the interview process, four or six forms were routinely completed, depending on whether the patient had commercial coverage, in which case four forms were completed, or whether the patient desired to apply for Medicaid, in which case six forms were completed. (Petitioners' Exhibit 6, pages 24-29 and Petitioners' Exhibit 5, pages 18 and 20). According to the proof, the first form was referred to as "Chronological notes," on which the service representative noted the need for any additional information or follow-up, and is not pertinent to this case. The second, third, and fourth forms that were completed in all cases, were the Application for Credit (on which the service representative noted the personal and financial information provided for the patient and her guarantor, here, Mr. Ruiz, including address, telephone number, place of employment, monthly wages and expenses, and the identity of any commercial insurer, and to which the patient and her guarantor attested by signing), the Indigent Income Attestation form (on which the service representative noted the gross family income for the past 12 months, as disclosed by the patient, and to which the patient and her guarantor attested by signing), and the Patient Funding Source form (on which the patient and her spouse attested that they had no other source of funding, other than that disclosed on the insurance benefits worksheet). (Petitioners' Exhibit 6, pages 24-29 and PHT's Exhibit 1, Exhibits 5-7). If the patient wished to apply for Medicaid, the service representative completed a Referral to Medicaid for the patient's signature (form five) and gave the patient an Application for Medicaid (form six) to complete and sign.4 Here, there is no compelling proof that Mrs. Ruiz chose to apply for Medicaid at pre-registration. Indeed, the only forms she signed at pre-registration, that are of record, are the Application for Credit, Indigent Attestation form, and Patient Funding Source form, and the only Medicaid Assistance Referral form of record was dated August 14, 1998, following Michael's birth. (PHT's Exhibit 1, Exhibits 5-7 and 9, and Petitioners' Exhibit 5, pages 18-22). Following completion of the interview process, Mrs. Ruiz was given three pamphlets, an Advance Directives brochure (a pamphlet that explained the living will), a NICA brochure, in Spanish, titled "Peace of Mind for an Unexpected Problem,"5 and a Patient's Bill of Rights brochure. According to the proof, the pamphlets were stapled together, with the Advance Directives brochure, being the longest, on the bottom, followed by the NICA brochure, which was a little smaller, and then the Patient's Bill of Rights brochure, which was the smallest, on top. As configured, all three brochures were visible when presented or held. Contemporaneously, Mrs. Ruiz was asked to sign a form acknowledging receipt of the NICA brochure. (PHT's Exhibit 1, pages 26 and 27). That form provided, as follows: He recibido el folleto intitulado "Tranquilidad Mental" preparado por la Asociacion de Compensaciones por Lestones Neurologicas Relacionadas con el Nacimiento, del Estado de la Florida (Florida Birth- Related Neurological Injury Compensation Association). Firma del Paciente Fecha: Testigo: Mrs. Ruiz signed the form, acknowledging receipt of the NICA brochure, and the service representative witnessed and dated the form.6 Thereafter, the service representative provided Mrs. Ruiz with a gift package for expectant mothers, and the pre- registration process was completed. In all, pre-registration typically took 10 to 15 minutes to complete. Findings related to the participating physicians and notice Pertinent to the participating physicians and the notice issue, the proof demonstrates that the participating physicians in this case (Doctors Paul Norris and Bel Barker) held appointments as full-time members of the faculty at the University of Miami, with the rank of assistant professors of clinical obstetrics and gynecology, and also held contracts with the Public Health Trust to provide, inter alia, supervision for physicians in the Trust's resident physician training program. (Petitioners' Exhibits 13 and 14, and PHT's Exhibits 4 and 5). Among the terms of their agreement with the Public Health Trust, Doctors Norris and Barker, as attending physicians in the resident physician training program, agreed To supervise medical care to patients provided by resident physicians to regularly review the medical charges of these patients. To supervise the completion of medical records by residents physicians. Of note, at all times material hereto, Doctor Norris was the medical director of Jackson North Maternity Center and, together with Dr. Barker and others, an attending physician in the Public Health Trust's resident training program at the facility. Regarding Michael's birth, the proof demonstrates that at or about 4:00 p.m., August 13, 1998, with the fetus at term, Mrs. Ruiz presented to Jackson North Maternity Center, in labor. Following an initial assessment, Mrs. Ruiz was examined by Wayne McCreath, a physician in the resident training program, who noted the cervix at 2 centimeters dilation, effacement at 90 percent, and the fetus at -1 station, and regular uterine contractions every 3 minutes. Membranes were noted to have ruptured spontaneously at 3:00 a.m. Dr. McCreath's impression was intrauterine pregnancy, at 39+ weeks gestation, in labor, and he proposed to admit Mrs. Ruiz to labor and delivery. Dr. McCreath's assessment and proposal to admit Mrs. Ruiz was reviewed by Dr. Norris, the attending physician at the time, and approved. Dr. McCreath continued to provide medical care for Mrs. Ruiz, under the supervision of Dr. Norris, until the 7:00 p.m., shift change, when Dr. Barker assumed the duties of attending (supervising) physician, and some time thereafter George Butler, another physician in the resident training program, was noted to be providing medical care. Ultimately, at 6:01 a.m., August 14, 1998, Michael was delivered by cesarean section, due to arrest in descent and a nonreassuring fetal heart rate pattern. The operating report names Dr. Barker as the attending surgeon and Dr. Butler as a resident surgeon. Notably, with regard to the notice issue, neither Doctor Norris nor Doctor Barker provided NICA notice to Mrs. Ruiz at or following her admission of August 13, 1998, and the only notice she received was that provided by the hospital at pre- registration. Resolution of the notice issue, with regard to the hospital Petitioners do not dispute that the hospital provided Mrs. Ruiz with a copy of the NICA brochure at pre-registration or that she signed the form acknowledging receipt of the brochure. Rather, they contend, first, that Mrs. Ruiz did not receive notice because she never read the documents she signed or the NICA brochure, and that her failure to read the documents or NICA brochure was reasonable or excusable given that, in their opinion, the procedure the hospital employed to secure her signature and deliver the brochure was not adequate to alert her to their significance. Second, Petitioners contend that neither the acknowledgment form nor the brochure was sufficient, for reasons hereafter addressed, to satisfy the hospital's notice obligation under the Plan. To support their first contention, Petitioners offered the testimony of Mrs. Ruiz who, to support Petitioners' contention that her failure to read the documents she signed and the NICA brochure she received was reasonable, observed that the service representative (Machele Lockhart Wadley) simply flipped the bottom up of each page she wanted Mrs. Ruiz to sign, never gave Mrs. Ruiz time to read before signing, never gave Mrs. Ruiz the documents to read before signing or told her to read before signing, and never told Mrs. Ruiz the documents were of any legal significance. Moreover, as for the NICA brochure, Mrs. Ruiz observed that, at the time, she was of the opinion it was simply another baby advertisement, and of no significance. Considering the proof, Petitioners' first contention, and the testimony of Mrs. Ruiz that was offered to support it, must be rejected for a number of reasons. First, given the routine nature of pre-registration and the passage of time since it occurred, it is unlikely that Mrs. Ruiz would have any specific recollection of the events that transpired at the time. Moreover, given the limited number of forms Mrs. Ruiz signed during the interview process, discussed supra, and the fact that her husband also signed as guarantor or spouse, it is also unlikely that the process was hurried or that Mrs. Ruiz was seriously deprived of an opportunity to read the forms or the NICA brochure had she chosen to do so. Finally, and most pertinent to the notice issue, Mrs. Ruiz acknowledged in her testimony that, while she did not read the acknowledgment form, she was specifically advised that by signing the form she was agreeing that she received the NICA brochure. (PHT's Exhibit 1, pages 26 and 27). Under such circumstances, and considering that the brochure was also delivered with two other pamphlets of legal significance (the Advance Directives brochure and the Patient's Bill of Rights brochure), if Mrs. Ruiz failed to accord the NICA brochure significance, her act of doing so was not reasonable. Petitioners' second contention, regarding the adequacy of notice with regard to the hospital, was premised on their view that, as worded, neither the acknowledgment form nor the NICA brochure was adequate to satisfy the notice provisions of the Plan. As for this contention, Petitioners first posit that, since the NICA brochure stated only injuries that "have occurred in the course of labor, delivery or resuscitation in the immediate postdelivery period in a hospital" (emphasis added) were covered, Mrs. Ruiz was not on notice that delivery at Jackson North Maternity Center was covered by the Plan because Jackson North Maternity Center was not described as a hospital in the acknowledgment form, the NICA brochure, the facility signage, or otherwise. Petitioners also posit that, because neither the acknowledgment form nor the NICA brochure states that Jackson North Maternity Center has participating physicians on its staff, Mrs. Ruiz was not on notice that delivery at Jackson North Maternity Center was covered by the Plan. Here, Petitioners' second contention must also be rejected. First, Petitioners have stipulated that Jackson North Maternity Center is a hospital, as that terms is used in the Plan, and there is no evidence of record that Mrs. Ruiz suffered any confusion over Jackson North Maternity Center's status as a hospital. Second, there is no requirement under the notice provisions of Section 766.316, Florida Statutes, for the hospital to advise patients that it has participating physicians on staff. Rather, such is presumed if notice is given, and the obligation to disclose their participating status rests with the physician. Resolution of the notice issue, with regard to the participating physicians With regard to the participating physicians, it is undisputed that Mrs. Ruiz was never given notice by Doctors Norris and Barker that they were participating physicians in the Plan, and that the only NICA notice she received was that provided by the hospital at pre-registration, which failed to identify any physician associated with the hospital, or reveal their status as participating physicians.7 Nevertheless, it was the position of Intervenors that the acknowledgment form signed by Mrs. Ruiz at pre-registration, and delivery of the NICA brochure, satisfied the notice provisions of the Plan for the hospital, as well as the participating physicians. Alternatively, the Intervenors were of the view that the participating physicians were not required to give notice, since Mrs. Ruiz presented to the hospital on August 13, 1998, with an "emergency medical condition," as defined by Section 395.002(a)(b), Florida Statutes, or the giving of notice was "not practicable." § 766.316, Fla. Stat. Given the proof, it must be resolved that Doctors Norris and Barker failed to comply with the notice provisions of the Plan. In so concluding, it is noticed that Intervenors' contention that the giving of notice by the hospital also satisfied the participating physicians' independent obligation to give notice must be rejected as lacking a rational basis in fact or, stated otherwise, any compelling proof that a patient, similarly situated as Mrs. Ruiz, would reasonably conclude, from the hospital's notice, that notice was also given on behalf of Doctors Norris and Barker. Notably, the acknowledgment form signed by Mrs. Ruiz at pre-registration did not reveal that it was also given on behalf of any physician associated with the hospital and did not reveal that any physician associated with the hospital was a participating physician in the Plan. Under such circumstances, the giving of notice by the hospital could not satisfy the participating physicians' independent obligation to provide notice.8 With regard to the Intervenors' contention that the giving of notice was not required or was not practicable, it is noted that, while the Legislature clearly expressed its intention in Section 766.316, Florida Statutes, that notice was not required when a patient presented with an "emergency medical condition," the Legislature did not absolve a health care provider from the obligation to give notice when the opportunity was previously available. Consequently, while Doctors Norris and Barker were not required to give notice when they assumed Mrs. Ruiz's care at the hospital, because there was "evidence of the onset and persistence of uterine contractions or rupture of the membranes," they nevertheless failed to comply with the notice provisions of the Plan because, although there was a reasonable opportunity for them to do so, they failed to give Mrs. Ruiz notice at pre-registration.9 See Galen of Florida, Inc. v. Braniff, 696 So. 2d 308 (Fla. 1997); Board of Regents of the State of Florida v. Athey, 694 So. 2d 46 (Fla. 1st DCA 1997); Schur v. Florida Birth-Related Neurological Injury Compensation Association, 832 So. 2d 188 (Fla. 1st DCA 2002); Turner v. Hubrich, 656 So. 2d 970 (Fla. 5th DCA 1995).
The Issue This is a case in which the Petitioner seeks to suspend, revoke, or take other disciplinary action against the Respondent as licensee and against his license to practice medicine in the State of Florida. In a two count Administrative Complaint the Respondent is alleged to have violated paragraphs and (h) of Subsection 458.331(1), Florida Statutes, by failing to report to the Department certain activities he is alleged to have witnessed, and is alleged to have violated paragraph (t) of Subsection 458.331(1), Florida Statutes, by failing to take certain specified actions which it is alleged should have been taken by a reasonably prudent physician acting under similar conditions and circumstances. Because of the somewhat unusual nature of this case, the principal allegations of the Administrative Complaint are set forth below to give context to the remainder of this Recommended Order. 1/ * * * COUNT ONE On or about March 16, 1982, Respondent was present at the delivery of a male infant to Mary Jones, reportedly to serve as the supervising physician to three (3) midwives performing the delivery. The delivery was performed by Margaret Hebson, Linda Wilson and Ricky Taylor. Hebson, Wilson and Taylor are not licensed to practice midwifery in the State of Florida, a fact which was known or should have been known to Respondent. Based upon the foregoing, Respondent has violated Section 458.331(1)(f), Florida Statutes, by failing to report to the Department any person who the licensee knows in violation of this Chapter or of the rules of the Department or the Board. Based upon this violation, Respondent has violated Section 458.331(1)(h), Florida Statutes, by failing to perform any statutory or legal obligation placed upon a licensed physician. * * * COUNT TWO Given Jones medical history, a reasonably prudent similar physician acting under similar conditions and circumstances would have ordered Jones transferred to the hospital rather than allow a home delivery to take place. Respondent did not. Respondent further failed to act prudently and to fulfill the duties that a responsible supervising physician acting under similar conditions and circumstances would have fulfilled by failing to examine Jones prior to delivery, failing to furnish obstetrical care when needed during delivery and failing to order Jones transferred to the hospital when it became apparent that Jones was suffering a prolonged labor. Following delivery the infant went into respiratory arrest and expired. A reasonably prudent physician acting under similar conditions and circumstances would have properly CPR to resuscitate the infant. Respondent did not. Based upon the foregoing, Respondent has violated Section 458.331(1)(t), Florida Statutes, by failing to practice medicine with that level of care, skill and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances.
Findings Of Fact Based on the stipulations of the parties, on the exhibits received in evidence, and on the testimony of the witnesses, I make the following findings of fact. The Respondent, Albert A. Sneij, is a licensed medical doctor, having been issued license number ME0034499, and was so licensed at all times relevant to this case. At all times material to this case, Linda Wilson was not a licensed midwife and Dr. Sneij knew that she was not a licensed midwife. 3/ Mary Jones became pregnant for the third time in June or July of 1981. She went to see Dr. R. Strassberg, a specialist in obstetrics and gynecology, on July 24, 1981, and thereafter made regular visits to Dr. Strassberg's office until February 16, 1982. Mary Jones did not go back to Dr. Strassberg's office after February 16, 1982, because she had decided she wanted to deliver her baby at home. Jones did not tell Dr. Strassberg's office she was planning to have a home delivery; she simply never returned to Dr. Strassberg's office after the visit of February 16, 1982. During the time Jones was being attended by Dr. Strassberg there was nothing particularly remarkable about the course of her pregnancy other than a somewhat large amount of increase in her weight. Prior to her pregnancy in 1981, Mary Jones had given birth to two children, one in December of 1970 and the other in August of 1975. Both of the prior children were born in a hospital. During both of her prior pregnancies Mary Jones was attended by obstetricians. Mary Jones' first baby weighed eight pounds, twelve-and-a-half ounces, and was born breech. Her second baby weighed nine pounds, eight ounces, and was a normal birth. During the course of her 1981 pregnancy, Mary Jones became interested in home birth and began to go to some home birth classes, including some classes that were being taught by Linda Wilson. Jones decided that she wanted to have her baby delivered at home by a midwife and asked Linda Wilson about procuring the services of a midwife. Wilson was not doing home births at that time because Wilson was in nursing school, but Wilson recommended that Jones contact Margaret Hebson because Hebson had indicated an interest in providing midwife services for home births. Mary Jones first met with Margaret Hebson in January of 1982, at which time Mary was in the seventh month of her pregnancy. At their first meeting Hebson took a history, wrote down information about Jones' background, did an external examination which consisted of taking Jones' blood pressure and pulse, listening to the fetal heartbeat, and feeling the position of the baby. At that time Mary Jones hired Margaret Hebson to be her midwife. Jones paid Hebson $100.00 in advance and agreed to pay her an additional $200.00 after the birth. 4/ About three weeks later Hebson went to Mary Jones' house to do another examination. During that visit Hebson told Jones that Linda Wilson was also going to attend the birth and that Wilson would bring a doctor. Jones was uncertain about whether she wanted to have a doctor at the birth. Jones' uncertainty was due in large part to her very negative attitude towards doctors and hospitals as a result of her experiences during her two prior deliveries. She felt that doctors and hospitals made the birthing experience too impersonal and did not permit her to do things her way. She particularly wanted to be able to have the people of her choice in the birthing room and to hold her baby as soon as it was born; things which were denied her during her two prior deliveries which were at hospitals where she was attended by doctors. Mary Jones called Linda Wilson to discuss what Hebson had told her and Wilson told Jones that she could meet the doctor at Wilson's classes and then make up her mind. The doctor turned out to be Dr. Albert A. Sneij. Mary Jones first met Dr. Sneij during February of 1982, during her eighth month of pregnancy, after she had already made the decision to have a home birth and had already hired and paid a midwife. She met Dr. Sneij at one of the classes conducted by Linda Wilson. On the day she met Dr. Sneij, he took a prenatal history, did an external examination of her abdomen, and listened to the fetal heartbeat. On at least one subsequent occasion Dr. Sneij performed a similar abdominal examination and again listened to the fetal heartbeat. Mary Jones never retained the services of Dr. Sneij, never asked him to be her doctor, never agreed to be his patient, and never agreed to pay him anything for his services. No doctor-patient relationship was ever established between Dr. Sneij and Mary Jones. Mary Jones did not really want Dr. Sneij, or any other doctor, to be present at her delivery, but merely tolerated his presence because of her understanding that Linda Wilson wished to have Dr. Sneij present. 5/ As late as two days before her delivery, Mary Jones told Wilson and Hebson that she was not comfortable around Dr. Sneij and didn't know if she wanted him to attend her delivery. Wilson and Hebson told her she could wait until she was in labor to decide whether she wanted to have the doctor present at the delivery. Mary Jones' understanding of why Linda Wilson wanted the doctor present was that in the event Jones tore any tissues during the delivery the doctor would be there to suture her. Postpartum suturing was the only thing that Mary Jones even impliedly agreed to let Dr. Sneij do for her. Dr. Sneij did not have her consent, expressed or implied, to do anything else. Early in the morning on March 15, 1982, Mary Jones began to have contractions and to experience some pain. She got in touch with Hebson and ultimately around 9:00 or 9:30 a.m., Linda Wilson and Ricki Taylor 6/ arrived at the Jones residence. They checked Mary Jones and told her not to worry and to go on about her regular activities. Mary Jones spent the rest of the day doing such things as having lunch with her sister, going shopping, and then going for a walk around the block with her husband. Sometime before 5:00 p.m. that day Mary Jones called Hebson again. Hebson said she could not get off work until 5:00 p.m., but would get in touch with Wilson or Taylor and have one of them go out to the Jones residence. Sometime shortly before 5:00 p.m., Ricki Taylor arrived at the Jones residence. Then between 5:30 and 6:00 p.m. Louise Godwin, who is Mary Jones' sister and a registered nurse, arrived at the Jones residence. Margaret Hebson arrived about the same time as Godwin. Hebson did an internal examination of Mary Jones and told her that she was dilated four centimeters. Hebson also asked Jones various questions about what she had eaten that day and took her pulse and blood pressure. Linda Wilson did not arrive until sometime after 7:00 p.m. At that time Godwin was making supper and from then until about 9:30 p.m. everyone present attended to such things as domestic chores, eating supper, and/or trying to make Mary Jones more comfortable. At about 9:30 p.m., Wilson, Hebson, and Taylor decided to take Jones' two sons to the drug store for a few minutes. As they were leaving, Mary Jones' mother arrived. Wilson, Hebson, Taylor and the two boys returned about 40 minutes later. Nothing eventful happened until shortly before 11:00 p.m., at which time Jones' contractions started coming a lot closer together and Mary Jones suggested that someone start getting the bedroom ready for the delivery. Things were made ready, Wilson, Hebson, and Taylor changed clothes, and shortly after 11:00 a.m. Mary Jones was in the bedroom ready to begin trying to deliver her baby. It was probably at about this time that Linda Wilson called Dr. Sneij. 7/ Before Dr. Sneij arrived at the Jones residence, there were ten other people in the bedroom with Mary Jones; namely, Hebson, Wilson, Taylor, Godwin, Bob Jones (Mary's husband), both of the Jones sons, Mary's mother, and two of Mary's friends. Dr. Sneij arrived at the Jones residence shortly thereafter and remained in the living room for a few minutes until someone asked him to come into the bedroom. 8/ When Dr. Sneij entered the bedroom the baby's head was not yet visible. At that time Mary Jones had probably been in the second stage of labor for about twenty or thirty minutes. The baby's head was first visible about five or ten minutes after Dr. Sneij entered the bedroom. Thereafter the top of the baby's head was visible pressing against the peroneum for approximately thirty minutes until the baby's head was entirely delivered. Within a minute or two after the delivery of the baby's head, the baby was fully delivered. When the baby was born it had a blueish color and was not making any attempt to breathe. The baby was promptly suctioned and then Dr. Sneij and Louise Godwin administered mouth-to-mouth CPR to the baby. The baby's pulse was checked and found to be present. A few minutes later Fire Rescue was called. When the Fire Rescue personnel arrived, they took over the CPR efforts. At that time the baby still had a pulse and during the CPR efforts by Fire Rescue the baby's color improved. Fire Rescue transported the baby to James Archer Smith Hospital. The baby was still alive when the Fire Rescue personnel delivered the baby to the hospital. The baby died some time before noon on March 16, 1982. From the time Dr. Sneij entered the bedroom until the time the baby was delivered, Dr. Sneij was observing what was happening and Hebson was doing most of the "hands-on" work assisting Mary Jones with the delivery. Hebson was being assisted to some extent by Linda Wilson. Ricki Taylor appears to have been primarily an observer. Dr. Sneij was sufficiently attentive to what was happening to conclude that the delivery should probably be expedited and to recommend an episiotomy. When it was suggested that an episiotomy be done, Mary Jones protested against that suggestion and refused an episiotomy. During the second stage of labor the fetal heartbeat was checked at least once every fifteen minutes and the heartbeat was recorded on the midwife's notes on labor and delivery. 9/ The fetal heartbeat rate never indicated any fetal distress and the baby still had a pulse shortly after delivery. An autopsy of the Jones baby was performed by Dr. Charles V. Wetli, the Deputy Chief Medical Examiner for Dade County, Florida. The autopsy revealed no evidence of trauma and no evidence of any congenital diseases or abnormalities. The only findings were generalized visceral congestion and petechiae of the lungs and heart. These findings are indicative of a nonspecific form of an asphyxial mechanism of death. 10/ Dr. Wetli also examined the placenta. It appeared to be normal and contained no evidence of meconium staining. He also examined a section of the umbilical cord and found it to be normal. I have not made any findings of fact as to the level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under conditions and circumstances similar to those involved in this case because, for the reasons stated at length in the Conclusions of Law portion of this Recommended Order, there is no sufficiently substantial evidence in the record in this case a to the appropriate level of such care, skill, and treatment. 11/
Recommendation For all of the reasons stated above, I recommend that the Board of Medical Examiners enter a Final Order in this case which DISMISSES the entire Administrative Complaint against Dr. Sneij. DONE and ORDERED this 9th day of November, 1984, at Tallahassee, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of November, 1984.
Findings Of Fact Petitioner attended a two year training program for physician's assistants at the State University of New York in Stonybrook. In the course of this program, petitioner spent ten weeks in an obstetrics rotation. During this ten week period, she delivered at least fifteen babies. She also attended mothers post partum. After moving to Florida, petitioner applied to respondent for a license as a lay midwife. Although she has approached more than ten obstetricians practicing in Florida, she found none willing to supervise her work as a midwife. In support of her second application for license as a lay midwife, petitioner attached a letter signed by Elspeth Reagan, M.D., and another, reciting that petitioner "performed approximately 15-20 normal, spontaneous deliveries under physician supervision and assisted with numerous others." Dr. Reagan's signature had been acknowledged before a notary public. Dr. Reagan is licensed as a physician in New York but is not licensed in Florida. Petitioner did not furnish respondent a list of the names, home addresses or delivery dates of any of the deliveries she performed. On December 4, 1978, respondent denied petitioner's second application on the grounds that it did "not conform to the requirements of . . . Chapter 10D-36.21(2) . . . . [or of] Chapter 10D-36.22(1)(a)2.
Findings Of Fact Ms. Skippy King applied for licensure as a midwife pursuant to Chapter 485, Florida Statutes. In her application (Exhibit 1) she provided all information required by Rule 10D-36.22,-- Florida Administrative Code, except the recommendation of the county health officer, Dr. John S. Neill. Included in her application was the affidavit of having attended, under the supervision of a licensed and registered physician, the requisite number of births within a one- year period, and recommendations by three physicians attesting to her qualifications and competency for licensure. One of the attesting physicians, a practicing obstetrician and gynecologist, testified to her competence and experience for licensure. After making application for licensure, Ms. King was visited by the head nurse for Hillsborough County Health Department who inspected the equipment used by Petitioner. When asked by this nurse how she sterilized the equipment on home deliveries, Petitioner showed her the autoclave used. No comment was made by the nurse or anyone else to Petitioner that the equipment used was inadequate or unsanitary. Nevertheless, the denial of licensure by Respondent was predicated solely on the refusal of Dr. Neill to furnish his written recommendation and his statement as reason there for that there "is not [sic] evidence to establish `the equipment and settings to be used in practice are safe and sanitary.'" Petitioner visited the County Medical Officer on at least two occasions, once in company with Dr. Jacobs, one of the physicians attesting to her competency in the application. At this visit Dr. Neill told them not to talk about midwifery. At the second meeting with Dr. Neill, Petitioner testified Dr. Neill stated he had spent twenty years getting women back in hospitals and that he didn't believe in home births. No other reason was given to Petitioner for his refusal to recommend her for licensure.
The Issue The issue in this case is whether Wellington Regional Medical Center provided the notice required by section 766.316, Florida Statutes.
Findings Of Fact Stipulated facts At all times material, Scott and Danielle Faivus were and are husband and wife. Mrs. Favius was a patient of OB/GYN Specialists where she received prenatal care for the birth of her son, Ryder. Mrs. Faivus was given NICA notice during that care. Mrs. Favius pre-registered online with Wellington Regional in April of 2014 for her delivery. She went to the hospital July 7, 2017, for a labor check. On July 22, 2014, Mrs. Favius presented to Wellington Regional for induction of labor. Mrs. Favius signed a Receipt of Notice to Obstetric Patient on July 22, 2014, acknowledging receipt of the NICA Peace of Mind Brochure. A Caesarean section was performed and Ryder Favius was delivered. It was subsequently determined he sustained a hypoxic ischemic encephalopathy. NICA determined that this is a birth- related injury as defined by chapter 766, Florida Statutes. Respondent filed a Motion for Summary Final Order. A Partial Summary Final Order was entered on February 6, 2017, which determined that Petitioners' claim to be compensable under the NICA Plan. Facts based upon the evidence of record The maternity Pre-registration page from Wellington Regional's website instructs the patient that there are three ways to preregister: online, by mail, and in person. On April 25, 2014, Ms. Faivus accessed the online pre-registration page to preregister for her delivery. Just below the enumeration of the three methods of pre- registration, the online maternity pre-registration page in evidence contains a red exclamation point and "FLORIDA BIRTH- RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION (NICA)" written in capital letters immediately beside the exclamation point. The pre-registration page continues with the following: In order to fully process your Pre- registration, please download the NICA pamphlet and form. The form must be signed and returned to: Wellington Regional Medical Center Attn: Admitting Officer 10101 Forest Hill Boulevard Wellington, FL 33414. NICA Pamphlet NICA Consent Form The maternity pre-registration page in evidence is a screen shot of what is currently on the hospital's website. Arlene Morea, patient access director at Wellington Regional, was asked if the current maternity pre-registration page is the same as it appeared in 2014, when Mrs. Favius filled out the pre- registration form. She replied "to the best of my knowledge, yes." She further explained that other than some formatting changes, "everything is the same as far as the pre-registration," including the red exclamation point. The screen shot in evidence shows the red exclamation point immediately below the three methods of pre-registration. Mrs. Favius does not recall reviewing the instruction on the pre-registration page regarding downloading the NICA pamphlet or downloading and completing the NICA consent form. Notwithstanding, she received a REGIE registration confirmation by e-mail which thanked her for submitting the online REGIE request to Wellington Regional "where it will be processed." There is nothing on the face of the registration confirmation document that references downloading the NICA materials, or to indicate whether or not she had downloaded the pamphlet or acknowledgment form. According to Ms. Morea, it is the routine practice of Wellington Regional that when a maternity patient completes the demographics portion of the online pre-registration, the hospital mails a pre-registration packet to the patient containing a confirmation of the registration, an account number, information regarding payment and insurance benefits, the NICA acknowledgement form, a return envelope for the patient to return the acknowledgment form, the NICA "Peace of Mind" pamphlet, and information regarding different services the hospital provides, such as information on breast feeding and sibling passes. The hospital did not receive any returned mail sent to Mrs. Favius. However, there is no signed NICA acknowledgment form in Mrs. Favius' hospital record from the pre-registration process. Mrs. Favius denies receiving the pre-registration packet, or any other documents from the hospital, by mail following the submission of the online pre-registration demographic information. The registration confirmation letter does not reference NICA. Mrs. Favius confirmed that her address is the same address which is on record for her at Wellington Regional. The confirmation registration established a "visit date" of July 17, 2014, and assigned a confirmation number to Mrs. Favius. Ms. Morea explained that July 17, 2014, was the "visit date" scheduled for Mrs. Favius to go to the hospital. However, Mrs. Favius presented to Wellington Regional 10 days prior to her assigned visit date on the night of July 7, 2014, for a "labor check", because she thought she was going into labor. She went to the labor and delivery floor where she was hooked up to a fetal monitor, had a vaginal exam and an ultrasound. Mrs. Favius does not recall whether she told anyone at the hospital that she intended to deliver there. At the July 7, 2014, hospital visit, Mrs. Favius signed various documents including authorizations for financial billing and a consent to treat. There is no record of a signed NICA acknowledgment form in her file for the July 7, 2014, hospital admission. Mrs. Favius recalls signing papers but does not recall receiving copies of any paperwork during this visit and does not recall any of the discussions she had with the nurses during this visit. According to Ms. Morea, the routine practice in labor and delivery is that the NICA pamphlet and acknowledgment form are given to the patient when she arrives at the hospital either for a labor check or in labor. So, using routine practice, the patient should have received the NICA pamphlet and the acknowledgment form during the July 7, 2014, hospital visit. However, there is no NICA acknowledgment form in Mrs. Favius' hospital record for her July 7, 2014, admission. Ms. Morea noted that the NICA pamphlet could have been given to Mrs. Favius, but it was not scanned into her account. Ms. Morea's statement as to the hospital's routine practice is consistent with that of Jamie Gabbard, R.N., who worked at Wellington Regional as a labor and delivery nurse at the time of Ryder's birth. According to Nurse Gabbard, nurses would routinely give the NICA pamphlet to the maternity patient "as soon as we were able to. You know, if they were for induction, we would give it the first thing with all their consents. If they came in in labor, we would do it as soon as we could, you know." Nurse Gabbard further described the routine practice in 2014 in regard to providing NICA notice and various consent documents to patients who presented to the labor and delivery floor. That is, packets were put together which included the NICA pamphlet, the NICA acknowledgment form, and various consent forms for the patient. The nurse would present the packet to the maternity patient for signing. Mrs. Favius was admitted to the hospital on July 22, 2014, for a scheduled induction. When she arrived at labor and delivery, she was put on a monitor. The monitor indicated she was experiencing contractions of early labor, but she did not feel any contractions until Dr. Carlson ruptured her membranes a few hours after she arrived. Upon arrival at labor and delivery, Mrs. Favius signed paperwork. One of the documents she signed was the NICA acknowledgment form, although she does not recall doing so. Nurse Gabbard witnessed Mrs. Favius's signature on the NICA acknowledgment form dated July 22, 2014, which is routine practice. Nurse Gabbard's signature appears on the obstetrical consent forms signed by Mrs. Favius on July 22, 2014, and the NICA acknowledgment form. Mrs. Favius signed the form entitled Receipt of Notice to Obstetric Patient, which reads as follows: RECEIPT OF NOTICE TO OBSTETRIC PATIENT I have been furnished information in the form of a Brochure prepared by the Florida Birth- Related Neurological Injury Compensation Association (NICA), pursuant to Section 766.316, Florida Statutes, by Wellington Regional Medical Center, wherein certain limited compensation is available in the event certain types of qualifying neurological injuries may occur during labor, delivery or resuscitation in a hospital. For specifics on the program, I understand I can contact the Florida Birth-Related Neurological Injury Compensation Association, Post Office Box 14567, Tallahassee, Florida 32317-4567, (850)398-2129. I specifically acknowledge that I have received a copy of the Brochure prepared by NICA. The signed NICA acknowledgment form is not time- stamped, but the other documents in the packet which were signed by Mrs. Favius were signed around 6:30 a.m., shortly after her arrival at the hospital on July 22, 2014. Despite her signature appearing on the acknowledgement form, Mrs. Favius does not recall receiving a NICA pamphlet at the hospital on July 22, 2014, or on any other occasion. She also does not recall receiving a NICA pamplet, and signing a NICA acknowledgment form, at Dr. Carlson's office. However, she concedes that she did sign an acknowledgment form at the hospital on July 22, 2014, and at Dr. Carlson's office. It is concluded that Mrs. Favius received the NICA pamplet from Wellington Regional on July 22, 2014, shortly after she was admitted that morning, while in early labor. Petitioners have stipulated that Mrs. Favius was provided notice from Dr. Carlson and OB/GYN Specialists, despite her not remembering receiving the NICA pamphlet or signing the acknowledgment form there, although she clearly did so.
