The Issue The issue for determination is whether Mr. Johnson is eligible for vocational rehabilitation services or whether, as proposed by the agency, his file should be closed.
Findings Of Fact Jefferson Johnson applied for services from the Division of Vocational Rehabilitation (agency) and on November 13, 1997, executed an "Agreement of Understanding" describing eligibility criteria and various client rights and responsibilities. More specifically, the agreement provides, in pertinent part: ELIGIBILITY The Division of Vocational Rehabilitation (DVR) provides employment-related services to those persons who are eligible. To be eligible: You must have a physical, mental or emotional impairment that interferes with employment. It must be determined that Vocational Rehabilitation (VR) services will benefit you in becoming employed or in keeping your job. You must require VR services to become or remain employed. YOUR RIGHTS You have the right to: an evaluation to determine if you are eligible for services; written notice if you are determined to be ineligible for services; appeal any decision concerning denial, provision, delivery, or change of service; participate fully in all decisions. YOUR RESPONSIBILITIES It is very important that you participate in decisions about your employment. Your responsibilities are to: Keep appointments or request in advance that they be changed; participate actively in the planning of your individualized Written Rehabilitation Program (IWRP); cooperate with your counselor in all parts of your rehabilitation; provide all available medical information related to your rehabilitation program. (Petitioner's Exhibit A) There is no dispute that Petitioner has an impairment that interferes with employment. Melissa Kirkland has a Master's degree in counseling and is experienced in working with individuals with mental and emotional impairments. She was assigned Mr. Johnson's case and reviewed his medical records. She also began working with him on developing an assessment of his work-readiness. Mr. Johnson, who has some paralegal training from Rollins College, desires placement in a legal office that does advocacy for disabled persons. He feels that a lawyer should be able to evaluate his work-readiness. Based on Mr. Johnson's interactions with her and on her review of his medical records, Ms. Kirkland recognizes in her client certain problems common to persons with mental health impairments: hostile or confrontational interactions with others, difficulty concentrating, punctuality problems, and lack of appropriate hygiene. Work-readiness requires that those problems be remediated. The remediation cannot be accomplished in a regular job placement but requires the intervention and involvement of skilled counselors and staff. Those counselors are available though the Seminole County Mental Health Center's "job store," a sheltered workshop setting that would provide evaluation and skills training that Mr. Johnson needs before he can benefit from the agency's placement services. The skills that he needs are not related to substantive knowledge in his chosen field or career, but rather are the more basic skills that would enable him to get to work on time, properly groomed, and able to get along with the supervisors and co-workers. The "job store" is the only resource available in Mr. Johnson's geographical area that can provide the assessment and training he needs to become work ready and able to benefit from further vocational rehabilitation services. Mr. Johnson, however, refuses to sign the individualized written rehabilitation plan prepared by Ms. Kirkland and he refuses to participate in the job store even for the few months that Ms. Kirkland recommends. It is this refusal to obtain essential services, and not his profanity over the telephone and in the agency office, that caused Ms. Kirkland to appropriately terminate the agency's services to Mr. Johnson.
Recommendation Based on the foregoing, it is hereby RECOMMENDED: that the agency enter its final order terminating services to Petitioner without prejudice to his right to reapply. DONE AND ENTERED this 2nd day of November, 1998, in Tallahassee, Leon County, Florida. MARY CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of November, 1998. COPIES FURNISHED: Michael A. Greif, Senior Attorney Department of Labor and Employment Security 307 Hartman Building 2012 Capital Circle Tallahassee, Florida 32399-2189 Jefferson W. Johnson 4416 South Lake Orlando Parkway Orlando, Florida 32808 Douglas I. Jamerson, Secretary Department of Labor and Employment Security 303 Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152 Edward A. Dion, General Counsel Department of Labor and Employment Security 307 Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152
The Issue The issues for consideration here are those associated with an Administrative Complaint brought by the Petitioner against Respondent for certain alleged deficiencies related to the operation of the Respondent nursing home facility. Authority for this prosecution is set out in Chapter 400, Part II, Florida Statutes, and Chapter 10A-5, Florida Administrative Code.
Findings Of Fact Related to this case, Respondent was licensed by the Petitioner to operate an adult congregate living facility (ACLF) known as Elder Care Retirement Home, located in Ocala, Marion County, Florida. Lon W. Walters is president of that corporation and owns the corporation with his wife. Petitioner, in accordance with Chapter 400, Part II, Florida Statutes, and Chapter 10A-5, Florida Administrative Code, has regulatory authority over the ACLF. On November 8, 1988, Robert A. Cunningham, Human Services Program Analyst for Petitioner, performed the annual inspection of the subject facility as a prelude to relicensure. He found a number of deficiencies in the facility's operations. Four of those have relevance to this case. Through the course of an exit interview conducted with Nancy Carter, who was the administrator at the ACLF and its agent, Respondent was made aware of the deficiencies. In her capacity Carter hired staff, reviewed and screened residents for admission and admitted those residents, supervised the staff, and was responsible for record keeping. The deficiencies were that: Respondent had failed to provide or make available for review documentation that the facility administrator or his/her designee had completed a Core training program. Respondent failed to assure that a sufficient number of staff members were certified in an approved first aid course. Respondent failed to provide documentation that staff members were free from apparent signs and symptoms of communicable disease. Respondent failed to assure that all residents' files contained complete health assessment forms. The items that were discussed with the administrator were not confirmed by any written submission to the administrator on that occasion. The record does rot reflect to what extent Carter recorded information about the subject deficiencies and others in an attempt to prepare responses to those problems. She did tell Cunningham that Mr. Walters was going to take the Core training and there was a negotiation or discussion about the deadlines for that training and other items that needed to be corrected. Typically, as many as sixty days may be allowed for a facility to establish necessary corrections. On November 8, 1988, Cunningham spoke to Walters about the Core training and the due date for completion of that training, and it was agreed that the due date would be February 28, 1989. Pursuant to the discussion in the exit conference, arrangements were made for a January 18, 1989, deadline to complete corrections in the three other deficiency areas. There was some delay in preparing the written summary of findings made by Mr. Cunningham. Nonetheless, those findings were committed to writing by a report of January 23, 1989, associated with the relicensure survey. A transmittal letter which was sent out to the Respondent included a document entitled "Classification of Deficiencies for ACLF Licensure Requirements" which set out the four deficiencies in question and others. It also set forth the correction deadlines and included a citation to the appropriate administrative rules that had allegedly been violated by the deficiencies. Based upon the observations by Mr. Cunningham at the time of the November 8, 1988, inspection and as confirmed by the classification report of January 23, 1989, at the time the inspection was conducted neither the administrator nor a designee had taken the necessary Core training. This point is conceded in remarks by Mr. Walters in his testimony at hearing. Likewise, the records of the facility on the date of inspection did not demonstrate that one staff member at the facility on all shifts had necessary first aid training in an approved course. The records available on November 8, 1988, did not reveal that all staff persons were free from communicable disease as documented by a physician or ARNP. This pertained to nine staff persons. Finally, on the inspection date the facility did not have records on file for two residents indicating that a medical examination of those residents had been completed within sixty days prior to the admission of those residents to the facility or that a health assessment form had been completed within thirty days after admission of those two residents. Cunningham returned to the facility on January 25, 1989. At that time he discovered that none of the four items had been corrected. It should be mentioned that the item pertaining to Core training was not due for correction by that date. In a conversation with Mr. Walters on January 25, 1989, Walters reported that he had not received a copy of the statement of deficiencies that had been issued on January 23, 1989. Under those circumstances, Cunningham told Walters that he would be back at a later date to make a further inspection to ascertain whether the corrections had been effected. Nonetheless, he reminded Walters that the due date for correcting some items had expired. Petitioner's Exhibit 1 admitted into evidence is a copy of a statement of acknowledgment of receipt of the report that was issued on January 23, 1989. It is signed by Mr. Walters and dated January 31, 1989. On February 15, 1989, Cunningham returned to the facility and through his inspection discovered that none of the four items in question had been corrected. In effect, between November 8, 1988, and February 15, 1989, Respondent had failed to correct the problems. More significantly, it had failed to correct the problems by the deadlines to which it had agreed, excepting the Core training. By way of history, on December 9, 1987, a relicensure inspection was performed at the facility, and it was discovered that a resident within the facility had been placed there without the benefit of an examination to ascertain whether that person was free from signs of infectious disease. This led to an administrative complaint, a formal hearing, a recommended order, and final order, fining this facility in the amount of $150, in the aforementioned DOAH Case NO. 89-2058. Based upon the four deficiencies that were uncorrected on February 15, 1989, the Administrative Complaint which is PDRL No. I 89-1120 ACLF was drawn.
Recommendation Based upon a consideration of the facts found and the conclusions of law reached, it is recommended that a Final Order be entered which imposes an administrative fine against the Respondent in the amount of $750, for the three violations that have been proven, and which dismisses any action against the Respondent for alleged failure to complete the Core training program. DONE and ENTERED this 9th day of May, 1990, at Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of May, 1990. APPENDIX TO RECOMMENDED ORDER Petitioner's proposed facts are commented on as follows: Paragraphs 1-3 are subordinate to facts found with the exception of the last sentence within paragraph 3 which is not necessary to the resolution of the dispute. Paragraphs 4-7 are subordinate to facts found. Paragraph 8 is contrary to facts found in that the obligation to take the Core training between November 8, 1988, and February 15, 1989, was not incumbent upon the Respondent. Paragraphs 9 through 14 are subordinate to facts found. COPIES FURNISHED: Frances S. Childers, Esq. Department of Health and Rehabilitative Services District III Legal Office 1000 Northeast 16th Avenue Gainesville, Florida 32609 Lon W. Walters 3223 West Forest Lake Circle Sarasota, Florida 33429 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue presented is whether Petitioner should be awarded credit for his answers to eleven (11) questions on the September, 1989, Florida Behavior Analysis Certification Examination.
Findings Of Fact Petitioner sat for the Florida Behavior Analysis Certification Examination administered on September 19, 1989. He failed to achieve a passing score on that examination. At the final hearing, Petitioner challenged the score he achieved on that examination by raising a general challenge to the vagueness of the examination and by challenging the score given for his answers to questions numbered 11, 12, 16, 27, 42, and 53 on Part II of the examination. Part I, Item 12, is correctly scored as "A" instead of Petitioner's "C" because the question asks about a topographical definition, i.e., the form of the behavior. "A" describes the form of the behavior, while "C" partly refers to form but also includes extraneous information. Therefore, "C" is an incorrect alternative since it is more than a topographical definition. Part I, Item 45, is correctly scored as "A", the most reasonable inference from the two levels of responding. Petitioner's choice of "B" is incorrect because the baseline level of responding has not been established. Part I, Item 72, is correctly scored as "B" instead of Petitioner's "A". The question asked for the least intrusive prompt, and the gestural prompt in "B" is less intrusive than "A", a demonstration prompt. Part I, Item 83, is correctly scored as "C". "C" specifies a loss of candy every time the client hurls the object, which is not only accepted practice in the field but also agrees with the literature in the field that punishment procedures should follow a behavior each time the behavior occurs. Petitioner'S choice of "A" is not acceptable because the problem behavior could escalate and there is currently only a slight decrease in the client's behavior. Part I, Item 85, is correctly scored as "A" rather than Petitioner'S answer of "B". The literature in the field reveals that when a behavior receives intermittent reinforcement, the behavior is more resistant to extinction. Although "B" is sometimes correct, it is sometimes incorrect and, therefore, is a less desirable alternative. Part II, Item 11, is scored correctly as "A" rather than "C" as Petitioner chose because the question asked for a behavioral goal. "A" is a good example of a goal, which is a general statement of the behavior change intended; however, "C" is a good example of a behavioral objective rather than a goal because that alternative specifies particular details. Part II, Item 12, is correctly scored as "C" rather than "B" as Petitioner chose. The question asks for the most appropriate and concise statement of a behavioral objective. "C" has all the information required, but "B" does not state the performance criteria that would be required for the trainer to know when work has been completed, when the objective has been met. Part II, Item 16, is scored correctly as "B" rather than "A" because "B" adequately describes the nature of the environment in which training will occur, while "A" is vague and nonspecific. Part II, Item 27, is correctly scored as "B" rather than "A". "B" specifies the most appropriate example of training for program procedures and is a direct technique of demonstration rather than "A", an indirect training procedure of posting the procedure and announcing there will be a quiz on it. Part II, Item 42, is scored correctly as "B" rather than "A". Answer "B" specifies the particular behaviors that staff should be engaging in so that their monitors or supervisors can observe and mark on a checklist if those behaviors did or did not occur. On the other hand, answer "A" does not specify the particular staff behaviors to be observed, and it uses a rating system which has inherent problems because the meaning of each rating description is subjective. Part II, Item 53, is correctly scored as a wrong answer because Petitioner omitted one of the key parts of the correct answer to the question. The omitted information is a reference to the process which is critical to classical conditioning, i.e., the pairing of the sound of the bell with the monitor's movement toward the shelf. Partial credit is not given for a partially-correct answer.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered rejecting Petitioner's challenges to the 20 1989, Florida Behavior Analysis Certification Examination and finding that Petitioner failed to achieve a passing grade on that Examination. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 20 day of September, 1990. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20 day of September 1990. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 90-2406 Respondent's proposed findings of fact numbered 1-13 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed finding of fact numbered 14 has been rejected as being irrelevant to the issues under consideration in this cause. Respondent's proposed finding of fact numbered 15 has been rejected as not constituting a finding of fact but rather as constituting a conclusion of law or argument of counsel. COPIES FURNISHED: John W. Hedrick, Esquire Assistant General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building 1, Suite 407 Tallahassee, Florida 32399-0700 Dwight O'Quinn Stirling Road Apartments 4100 Northwest 77th Avenue Davie, Florida 33024
Findings Of Fact On an undisclosed date, respondent, Department of Health and Rehabilitative Services (HRS), gave notice, through the District 10 office in Fort Lauderdale, Florida, that it would receive bid proposals from those persons interested in providing contractual services under the intensive crisis counseling program (ICCP) to Broward County clients. Under the program HRS provides grant funds to the successful bidder who then renders mental health services to selected HRS clients in Broward County. The request for proposal (RFP) contained the specific requirements of the program but was not introduced into evidence. Two responses to the PEP were received by HRS. They were filed by petitioner, Center for Family and Child Enrichment (CFCE), and Nova University (Nova). Neither bid proposal was offered into evidence. CFCE is a non-profit corporation with offices in Miami and Opa Locka, Florida. For the two years ending June 30, 1985 it held the contract with HRS to provide intensive crisis counseling services in Broward County. A selection committee comprised of five HRS employees was formed to evaluate the two bids and to determine which organization better met the PEP's requirements. This evaluation process was conducted during a meeting on May 13, 1985. At that time the committee members rated each bidder individually and their total points were then added together. Nova ranked highest with 432 points while CFCE finished second with 307 points. There is no evidence that the committee was biased or that the review was conducted in a flawed or improper manner as alleged by CFCE. At hearing CFCE contended that it was better qualified than Nova because it submitted a lower program cost, and because it could commence operations under the contract at an earlier date than could Nova. It also contended that Nova could not meet all requirements of the contract. However the two bid proposals contained identical program costs. Moreover, even though it projected a later starting date, Nova proposed to serve 122 client families while CFCE's proposal indicated that only 51 families would be served which was less than that required by the RFP. There was no evidence that Nova could not meet the program requirements, or that CFCE submitted a superior proposal. There is also no evidence that HRS "withheld" information from CFCE during the bidding process as alleged in the request for hearing. 2/ Therefore, it is found that the contract was properly awarded to Nova.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Center for Family and Child Enrichment's request to be awarded the 1955-86 contract for intensive crisis counseling service in Broward County be DENIED, and that the contract be awarded to Nova University. DONE and ORDERED this 15th day of January, 1986, in Tallahassee, Florida. Hearings Hearings 1986. DONALD R. ALEXANDER Hearing Officer Division of Administrative The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative this 15th day of January,
The Issue Whether petitioner should pass the Level III Behavior Management Certification examination given by the Department of Health and Rehabilitative Services (HRS) on June 28, 1985.
Findings Of Fact The Developmental Services Program Office in HRS is the office responsible for the Behavior Management Certification examination. The concept of a certification exam arose out of a commitment to improve and to increase the capabilities of the people who were providing behavioral programs to developmentally disabled people in Florida. In December of 1982 or January of 1983, HRS contracted with Instructional System Design, Inc., to design an examination that would ensure that the persons who passed the examination were persons who possessed proficiency and competency in the field of behavioral management or behavior analysis. Instructional System Design, Inc., also was to design and prepare a curriculum guide that would aid individuals in becoming proficient in behavior management. However, the examination was designed first and then the curriculum guide was prepared to cover the major content areas which were reflected in the examination. The Behavior Analysis Curriculum Guide had not been completed before petitioner took the examination, which was the first time the examination was offered. At that time, the curriculum guide was still in draft form. PREPARATION OF THE TEST The model used for constructing this examination was a domain referenced test model. Items are included which assess every competency. Ms. Goodson, the president of Instructional System Design, Inc., and designer of the examination, assembled an interdisciplinary team which included representatives of HRS and experts in the field of behavioral psychology. Specific competency areas, or content domains, were determined and arranged in competency clusters on the examination. For example, Competency Cluster #1 has to do with making legal and ethical decisions about when to intervene. Competency Cluster #3 relates to observing and recording behavior, and Competency Cluster #6 involves the application of behavioral procedures. The number of questions in each cluster relates to the number of tasks, or subtopics, within the particular competency area. The purpose of designing a test in this manner is to make sure that a question is included in the test that will evaluate proficiency in each defined competency and task within the competency. The content standard was established by the interdisciplinary committee. It was agreed that the minimum standard would be that the content would have to be included in two widely used textbooks and not successfully refuted in any other textbook. This minimum standard was designed to overcome any biases that may exist in any one particular form of training. Two forms of the examination were prepared, Form A and Form B. However, each form was prepared to assess the same competencies. For example, question 2-1 on Form A was designed to assess the same competency and task as question 2-1 on Form B. HRS requested that two forms of the examination be prepared. After the first draft of the examination had been prepared, and content experts reviewed and made revisions to the questions, a field review of the examination was conducted. Thirteen different reviewers were asked 28 questions about each test item. One of the 28 questions was the correct answer, and the other 27 questions asked other information about the particular question. The other 27 questions were asked to ensure that each test question was valid, that the question was clear, and that it was representative of the competency area that it was attempting to assess. None of the field reviewers reviewed all 156 questions, but all questions were reviewed. The examination was not field- tested by actually giving the entire exam to a small group of people because it was felt that it would be impractical to get 15 to 20 people to voluntarily submit to this rigorous an examination for the purpose of field-testing without getting certification. Field review appeared to be more practical and provided more information about the validity of each item. Since there appeared to be no reason to weigh any particular item, so that some items would count more than others, it was agreed that each item would count as one point. It also was determined that more than one person would score the examination to provide a double-check on the scoring process. Since some of the examination questions were essay questions, it was determined that the scorers would be experts in the field with the capabilities to assess the answer given using the standards set forth in the answer key as a guideline. If the two scorers disagreed on the correctness of an answer, the scorers would confer with each other to resolve the difference. TEST ANALYSIS After the first administration of the examination in June of 1985, Dr. Beard, a professor at Florida State University and an expert in testing, conducted a test analysis. Dr. Beard took the data, the indication of whether the items were right or wrong, coded them onto computer records, and computed a large number of statistical items. He computed the P-value of each item, the proportion that answered each item correctly. He computed the points by serial correlation between each item and the total scores. He also computed the frequency distribution of scores, means, standard deviations, and other descriptive statistics of the scores. After this was done, Dr. Beard determined that the two forms of the test differed in difficulty. He therefore applied an equating or calibrating procedure to adjust the difficulty of one form to that of the other. In other words, although each exam form was designed to test the same knowledge and skills, unintended differences in test difficulty from form to form gave an advantage to people taking the easier form. Therefore, it was necessary to convert the scores obtained on one form to the units on the other form, a process called test equating. Form A was the easier form; and therefore, the raw scores on Form A were equated to the scores on Form B. The test analysis also revealed that certain of the test items did not have desirable measurement properties. In any test, some items discriminate better between those who have a large amount of the knowledge being tested and those who do not have. An item that does not discriminate well will show a negative discrimination index. An item showing a negative discrimination index detracts from the measurement properties of the test. Therefore items that have negative discrimination indices should not be included in scoring an examination unless the elimination of the items would destroy the content validity of the examination. Out of the 156 questions on this examination, 31 of the items had a negative discrimination index. Because the elimination of these items did not affect the content validity of the exam, the 31 questions were eliminated. The elimination of these negative indicators did not affect the validity of the exam, and the inclusion of any negative indicator in an examination detracts from the reliability of the exam. CUT-OFF SCORE COMMITTEE The passing score on the examination was determined by a cut-off score committee. The committee was composed of a group of individuals representing practitioners, clients, and persons involved in the administration of the examination. The committee was given statistical information concerning the exam. The committee discussed the consequences of setting too high a passing score and the consequences of setting too low a score. Establishing a passing score by a committee that is aware of both the content of the examination and the impact of choosing a particular score is an acceptable method for determining a passing grade on an examination. After a complete review of the examination and consideration of the statistical information, each member of the committee wrote down a recommended passing score. There was a wide variation in the recommended passing scores. However, after further discussion a consensus was reached, and the ultimate cut- off score voted upon was approved unanimously. The cut-off score was set at 86 out of 125 items, or 68.8 percent. Thirty-three percent of the people taking the examination passed it. PETITIONER'S EXAMINATION Out of the original 156 questions on the examination, petitioner was scored with having answered 105 questions correctly. Of the 31 items eliminated, petitioner answered 21 correctly and missed 10. Of the 125 items which HRS counted on the examination, petitioner answered 84 correctly. However, petitioner took Form A of the exam, and petitioner's raw score of 84 on Form A was the equivalent to a score of 80 on Form B. Therefore, petitioner's equated score was 80. To pass the examination, petitioner would have to have received at least six more points. The deletion of the 31 items from the test served to make the test more reliable. However, had the 31 items not been deleted from the test, petitioner would have gotten the identical percentage of correct answers as he did after the elimination of these items. Therefore, the deletion of the items did not adversely affect the petitioner. The equating of scores is an acceptable testing procedure and adds to the fairness of the test. However, even if petitioner's score had not been equated, he would not have passed the exam. Further, if petitioner's score had not been equated, the scores of the other 49 individuals who took Form A also would not have been equated. This would have raised all of those raw scores and could have resulted in a higher cut-off score being chosen. Because the elimination of negative indicators and the equating of scores on two different forms of an exam are both acceptable-testing procedures, petitioner's contention that he should pass the exam must be based upon a showing that he answered correctly at least six of the questions that he was scored as missing. PETITIONER'S EXAMINATION ANSWERS Petitioner's exam was graded by Dr. James Johnston and Dr. Standler. Dr. Standler and Dr. Johnston initially disagreed on only four of the answers given by petitioner on the essay questions. However, there was no evidence presented concerning whether the disagreement on the four questions was resolved adversely to petitioner. Although petitioner did not designate in his petition the specific questions he was challenging, at the hearing the following question numbers were mentioned: 2-6, 3-3, 3-7, 4-1, 4-11, 5-4, 5-10, 5-11, 6-6, 6-7, 6-46, 6-48, 9- 2, and 10-8. Dr. James Johnston was the only expert in behavior analysis to testify, and he was called as a witness by both petitioner and respondent. Question 2-6 Question 2-6 requested that the examinee write a functional response definition for the given situation. A functional response definition considers only the effect of the behavior. Petitioner's answer was incorrect because he included in his answer where the behavior occurred, when it occurred, and how it occurred. Therefore, petitioner did not write the functional response definition. Question 3-3 The only evidence presented as to this question was that petitioner's response, C, was incorrect and that the correct answer was answer A. Question 3-7 Dr. Johnston agreed with the petitioner that if one defined "interval recording" as meaning "whole interval recording" there would not be a proper answer to question 3-7. However, the question did not use the term "whole interval recording." Therefore a correct answer was provided in the choices. On his exam petitioner wrote the following note: Our instructor used the term "interval" in time sampling synonymously with the term whole interval only. None of the answers provided are thus appropriate, since none apply to whole intervals. Alternative C is given as answer because it applies to momen- tary time sampling whereas A + B are partial time sampling. . . . Dr. Johnston explained that the use of "whole interval time sampling" as a term is improper since it is the mixture of two different procedures. Time sampling is one procedure, often in the form of momentary time sampling. An interval recording, partial or whole, is a totally different procedure. The question asked the best method for obtaining interval recording data. Petitioner did not correctly answer the question. Question 4-1 Question 4-1 may have been a question that was deleted; however, the only competent evidence presented was that petitioner's answer was incorrect. Question 4-11 There was no competent evidence presented to establish that petitioner answered question 4-11 correctly. Petitioner argued that he correctly displayed the data on the graph provided because he assumed that one of the days was a "no chance" day. When "no chance" day occurs, the data points on either side should not be connected by a line. However, the question did not indicate that the day was a no chance day. Question 5-4 Question 5-4 asked which inference was the most reasonable to be made based on the graph that was provided. Petitioner chose the answer, "The data indicate it would be appropriate to begin the treatment phase on the fifth-day." The correct answer was, "Baseline data should continue to be collected until more representative data are obtained." This answer was the correct choice because there were only four observations reflected on the graph. Four observations are too few, even if the fluctuation in the behavior recorded is not a large fluctuation. Question 5-10 Petitioner simply read the graph incorrectly on this question. The question referred to the duration of the behavior. On a six-cycle chart, a standard behavior chart, duration is plotted on the right-hand axis, not the left-hand axis. On the left side the values get larger going up the scale, but on the right side the values get larger going down the scale. When measuring duration of behavior, if the data points on the chart go in a downward direction it would show that the duration is increasing. The correct answer was not given by the petitioner because he thought the duration was decreasing. Question 5-11 Although petitioner did not give the best answer to question 5-11, the answer recognized in the answer key as the correct answer is also incorrect. Although this question was a flawed question, and therefore should have been deleted prior to scoring, petitioner cannot be credited with a correct answer on the question, since his answer was not the best of the three answers given. In other words, although the answer on the answer key was wrong, petitioner's answer was also wrong. This question simply should not be considered in determining the scoring. Question 6-4 Question 6-4 provided a situation and then asked the question, "What is happening according to the social learning model? The key feature of the social learning theory is "cognitive mediation." Because cognitive mediation is the centerpiece of the social learning theory, petitioner's failure to mention it showed that he did not explain the situation in terms of the social learning theory. Question 6-7 Question 6-7 presented a situation and required that the examinee write "at least two prerequisites that should be established so that the client can maximally benefit from behavioral intervention." Petitioner gave one prerequisite that was correct. However, petitioner did not answer correctly the second prerequisite. The second prerequisite given by petitioner, that the client "will perform simple tasks when instructed to do so," does not address specifically the situation provided. The situation refers to the client being so restless that she runs around the room and rarely stays in her seat long enough to be taught. A prerequisite that must be established so that the client can maximally benefit from the behavior intervention is that the client hold still long enough so the training can proceed. Since this is an important and obvious prerequisite for training, petitioner's answer is incorrect. Question 6-46 Question 6-46 provides the following situation: The teacher wants to keep Sybil on task during class, but Sybil is so restless in the classroom setting on that spring afternoon she is not getting much work done. The question asks, "How could you use negative reinforcement to increase the client's behavior?" Petitioner answered the question by stating; "Nag Sybil until she terminates the aversive stimulus by doing her work (staying on task)." Negative reinforcement occurs when you have an aversive stimulus present and the response terminates the aversive stimulus. From the information given in this question, which information is to be used in answering the question, one should know that an aversive stimulus is present. Since the aversive stimulus is present, the teacher does not have to arrange an aversive stimulus. From the information given, the appropriate negative reinforcement procedure is to tell Sybil that she can leave class, the aversive stimulus, when she does her work. Petitioner's answer requires the teacher to add an aversive stimulus to the situation. Further, petitioner's response pairs the aversive stimulus with the teacher, which should be avoided. Petitioner argues in his proposed recommended order that it might be considered irresponsible and dangerous to let a child leave the classroom where she would be unsupervised. As a practical matter, this may be true. However, there is nothing in the situation given indicating that if Sybil left the classroom she would be unsupervised. Further, petitioner's answer on the exam did not reflect this concern. From petitioner's answer, it is not apparent that petitioner was aware that an aversive stimulus was already present. Therefore, petitioner's response was not a correct answer. Question 6-48 Question 6-48 asks, "How can target behavior be strengthened?" Petitioner chose the alternative, "By making all reinforcing activities for the client contingent on the performance of the target behavior." This answer is unwise and incorrect because it refers to all the reinforcing activities for a client. All the reinforcing activities include a variety of different activities and stimuli that are reinforcing for any particular individual. To try to bring all these together, or make them contingent on the particular behavior, would probably be impossible. Although "increasing the frequency of reinforcement short of satiation" does not mention a contingency, the definition of reinforcement means that there is a contingency between a behavior and some following consequence. Therefore, the latter alternative is the best answer, and petitioner's answer is incorrect. Question 9-2 Question 9-2 provided a situation and asked, "How can you use the AB design to evaluate the behavioral treatment." The examinee was informed that his answer must explain what to do and how to do it. One of the hallmark requirements of an AB design is that behavior is measured until it is stable and a representative picture of what is happening in that phase is obtained. Petitioner's answer did not reflect that data be collected until a stable and representative picture is obtained, and therefore his answer was incorrect. Question 10-8 Question 10-8 set forth a situation involving the staff at a facility. The situation explained that staff members were dissatisfied with the working conditions and complained that raises, work schedules and special privileges were made on the basis of whom the supervisor liked rather than on staff performance. The question asked how the supervision and management system could be changed to make it more effective. The question stated that the answer should explain how the examinee would determine the effectiveness of staff performance and what types of consequences might be provided for performance. Although respondent's answer reflected certain positive reinforcers to use for appropriate performance, petitioner mentioned no negative consequences for a poor performance. Although petitioner mentioned evaluations, by stating "if the measuring instrument to evaluate performance is sufficiently detailed there are likely to be far less disputes regarding evaluations," petitioner does not mention having regular evaluations of the staff. Because petitioner did not include any negative consequences for poor performance, and did not mention regular evaluations as a means of determining the effectiveness of staff performance, petitioner's answer is incorrect. TRAINING PROVIDED BY HRS Prior to taking the examination, petitioner attended training classes conducted by Mr. Stelios Chimonides, an employee of HRS. The training classes were provided by HRS as a means by which practitioners could prepare for the certification examination. However, the training provided by HRS did not cover all the competency areas covered on the exam. Further, Mr. Chimonides used certain terms in training that were not identical to the terms used on the exam. However, the examination was not designed to test the information learned in the HRS training session. The examination was designed to test the practitioner's competency in the field of behavior management. Thus, the quality and thoroughness of the training provided by HRS through Mr. Chimonides is not relevant in determining whether petitioner should pass the exam and be certified by HRS. Further, petitioner did not establish that any of the correct answers on the examination were in conflict with the information provided during training.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that a final order be entered finding that petitioner did not pass the Behavior Management Certification Examination given on June 28, 1985, and that petitioner's request to be certified be denied. DONE and ORDERED this 29th day of May 1987, in Tallahassee, Florida. DIANE A. GRUBBS 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 day of May 1987. APPENDIX The following constitute my rulings, by paragraph, of the parties' proposed findings of fact. Petitioner's Proposed Findings of Fact 1-2. Accepted to the degree relevant in paragraph 12. Accepted to the degree relevant in paragraph 7. Accepted, in that the items were deleted as explained in paragraph 8, the remainder is rejected in that petitioner's statement does not correctly explain a negative discrimination index. Accepted that Dr. Beard's analysis was a statistical one in paragraph 7 and 8. Accepted as stated in paragraph 5. Accepted in paragraph 7. Rejected as irrelevant. 9-10. Accepted to the degree set forth in paragraph 5. Rejected in that all of HRS's witnesses were petitioner's witnesses. Accepted generally in paragraph 1. 13-14. Accepted as stated in paragraphs 2 and 9. 15-23. Rejected as irrelevant or not appropriate findings of fact; however, accept that test was not based on Chimonides' training in paragraph 34. 24-25. Accepted generally in paragraphs 15 and 17. 26-29. Accepted in part and rejected in part in paragraph 20. Witness Shepherd did state that "interval recording" was not used as a synonym for "partial interval time sampling." This is consistent with Dr. Johnston's testimony which indicated time sampling is a totally different procedure from an interval recording, either partial or whole. 30-34. Accepted in part and rejected in part as stated in paragraph 23. Rejected as irrelevant. Rejected by contrary findings. 37-40. Accepted in part and rejected in part as stated in paragraph 25. 45. Accepted in part and rejected in part in paragraph 26. 46-48. Accepted in part and rejected in part in paragraph 27. 49-54. Accepted in part and rejected in part in paragraphs 28-30. 55-56. Accepted in part and rejected in part in paragraph 31. 57-62. Accepted in part and rejected in part in paragraph 33. 63. Rejected by contrary finding in paragraph 35. Respondent's Proposed Findings of Fact Accepted as stated in paragraph 16. Accepted in paragraph 15 and 35. Accepted generally in paragraphs 12-14. Rejected as specific finding as unnecessary, but accepted as true. Rejected as cumulative. 6-8. Accepted to the degree relevant in paragraphs 1 and 2. Accepted in paragraphs 2 and 5. Rejected as irrelevant and not supported by competent substantial evidence. 11-12. Accepted generally in paragraphs 8 and 9. Rejected as cumulative. Rejected as specific finding of fact as unnecessary, but accepted as true. Accepted in paragraph 11. 16-17. Accepted as stated in paragraph 12. Accepted as stated in paragraph 17. Rejected as cumulative. 20-21. Rejected as not findings of fact. COPIES FURNISHED: George Tsismanakis, pro se 403 N.W. 2nd Avenue Okeechobee, Florida 33472 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Paul V. Smith, Esquire Assistant General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact The Petitioner, Jeffrey Goldpaint, is a disabled individual as determined by the Social Security Administration and has received funds through the Social Security system for his disability, administered by the Respondent's vocational rehabilitation program. His disability is of a psychiatric nature. During and before 1976, he was enrolled in a journalism curriculum, funding for which was provided by the Respondent. In 1976, the Petitioner elected to withdraw from the program, the reason for which withdrawal is not clear, although the Petitioner remonstrated that it was unavoidable, due to illness. In any event, after negotiation with the Respondent, the Petitioner obtained additional funding from the Respondent, as administrator of the federal program for vocational rehabilitation contained in Title 34, Code of Federal Regulations, Section 361, for additional rehabilitation training. Pursuant to this second rehabilitation effort, the Petitioner successfully completed training to be a real estate salesman, passed his examination and was licensed. As a part of that rehabilitation effort, the Respondent made available to the Petitioner employment placement assistance in order to help ensure that the petitioner would obtain employment in the real estate sales field. The Petitioner refused to respond and participate in the Respondent's job placement efforts for him and ultimately sought additional funding for a third course of study from the Respondent in the area of computer science, the denial of which instigated this proceeding. The Petitioner's motivation in seeking entitlement to the subject course of study in computer science lies in his belief that, because be is disabled and because of the moribund state of the real estate market in his geographical area, that he has a right to additional vocational training. The Respondent established, however, that the Petitioner is now employable as a real estate salesman. There is a substantial likelihood of his placement in an employment position in -that field of endeavor. It was not established that his disability is a hindrance or handicap to his employability in view of his past successfully completed vocational rehabilitation training and education. The Petitioner's voluntary decision to ignore the employment placement assistance afforded him by the Respondent was the direct and proximate cause of his lack of employment in his previously chosen career field at the time of the hearing. His request to be paid for enrollment in a course of study in computer science was motivated by a subjective and personal change in his career goals and not because his disability posed any handicap to his employability as a real estate salesman. It was established by the Respondent that the Petitioner could be successfully employed in a real estate career, especially had he availed himself of the employment placement assistance offered by the Respondent.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence in the record, the candor and demeanor of the witnesses, it is, therefore RECOMMENDED: That the petition of Jeffrey Goldpaint be DENIED. DONE and ENTERED this 8th day of April, 1983, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of April, 1983. COPIES FURNISHED: Jeffrey Goldpaint 1152 18th Ave., North Apartment #7 Lake Worth, Florida 33460 K. C Collette, Esquire Department of Health and Rehabilitative Services 111 Georgia Avenue West Palm Beach, Florida 33401 David H. Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32301
The Issue Whether the Petitioner is eligible to enroll in the Developmental Disabilities Program administered by the Respondent.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department is the state agency charged with administering and determining eligibility for services to developmentally disabled individuals pursuant to Florida's Developmental Disabilities Prevention and Community Services Act, Chapter 393, Florida Statutes. Section 393.065, Florida Statutes. The program developed by the Department is known as the Developmental Disabilities Program. Mr. Davis is a resident of Miami, Florida, and is 20 years of age. Mr. Davis submitted an application to the Department requesting that it enroll him in its Developmental Disabilities Program and provide him services as a developmentally disabled individual. The Department evaluated Mr. Davis's application and determined that he was not eligible to receive services through the Developmental Disabilities Program. In making this determination, the Department considered a Psychiatric Evaluation Summary dated August 18, 1998, that was prepared by J.O. Pagan, M.D. Dr. Pagan stated in the summary that Mr. Davis was "diagnosed early in his life as a child with Autistic characteristics," and he noted that, throughout his life, Mr. Davis has "had symptoms associated to hyperactivity, Tics, and perseverance behaviors." According to Dr. Pagan, Mr. Davis "diagnostically belongs in the Autistic Spectrum and more specifically to the Asperger's Syndrome." In evaluating Mr. Davis's eligibility for enrollment in the Developmental Disabilities Program, the Department also considered a Multi-Disciplinary Team Report prepared by the Division of Student Services of the Miami-Dade County public school system. Mr. Davis was a student in the Miami-Dade County public school system's Exceptional Student Education program, which provides appropriate education for students with disabilities. The Multi-Disciplinary Team Report was part of a required re-evaluation performed by school personnel in order to determine Mr. Davis's psycho-educational status. The report is based on a re-evaluation of Mr. Davis conducted on March 25 and April 1, 1998, when he was 17 years of age and an 11th grade student at Coral Reef Senior High School. It is noted in the report that Mr. Davis "has been diagnosed with Aspergers Autism and Bipolar Disorder" and that he was first evaluated by the Dade County Public Schools in May 1987, at which time he had medical diagnoses "including Attention Deficit Disorder, Pervasive Developmental Disorder and Affective Disorder Bipolar Type." The Wechsler Adult Intelligence Scale - Third Edition was administered to Mr. Davis during the 1998 re-evaluation. Mr. Davis obtained a Full Scale IQ of 100 on the Wechsler Adult Intelligence Scale, with a Verbal IQ of 110 and a Performance IQ of 89. The evaluator also noted in the Multi-Disciplinary Team Report that Mr. Davis "is capable of completing at least grade level academic work, yet his lack of attention and concentration often impede his progress. At present, his social skills remain underdeveloped." During his last two years in high school, Mr. Davis was classified as having the exceptionality of autism,2 and he was placed in a classroom for students with varying exceptionalities. The school system provided Mr. Davis with extensive and intensive services designed to assist him in making the transition from school to independent living and employment. The school system provided Mr. Davis with a one-on- one aide to work with him on his behavioral problems, and the school system's transition team worked with Mr. Davis to help him develop independent living skills. Mr. Davis has received training in computers and took courses at the Robert Morgan Vocation School in high-level computer programming. He graduated from Coral Reef Senior High School in June 1999. Although Mr. Davis was very successful in the program developed by the school system's transition team, he is now exhibiting some behavioral problems that he did not exhibit when he finished high school. He needs individualized support in order to live independently because his autistic tendencies are very strong, especially in the area of his behavior. Mr. Davis also needs services in the area of vocational training because his level of functioning is not yet high enough to permit him to seek employment. Mr. Davis has the potential to live independently and to be a productive member of society. He is, however, in need of community services in order to meet this potential. Mr. Davis applied to the state for vocational rehabilitation services but was denied these services because his IQ is too low.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a final order denying the application of Jeffrey Davis for enrollment in the Developmental Disabilities Program. DONE AND ENTERED this 25th day of September, 2001, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 25th day of September, 2001.
Findings Of Fact Based on my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following findings of fact: The Respondent, Janie Baker, is employed as a continuing contract teacher with the Orange County School Board. The Respondent was first employed as a teacher by the Orange County School Board in August, 1965. The Respondent was suspended from her employment as a teacher on continuing contract with the Orange County School Board in November, 1984. Respondent was employed at the Gateway School at the time of her suspension. Gateway is a school designed and utilized specifically to meet the educational needs of emotionally and socially handicapped (EH), specific learning disability (SLD) and severely emotionally disabled (SED) students. Its students range from four years of age through the sixth grade. EH students are educated at Gateway because they are unable to successfully attend class in regular schools with non- handicapped students. EH students have social and behavioral problems and occasionally may strike one another or their teachers. EH students are more prone to "act out" their emotions physically than normal children. The Respondent taught a class of approximately 10 emotionally handicapped students during the school year 1984- 1985. During the school year 1983-84, the Respondent instructed specific learning disability children. Dr. Louise Wicks is principal of Gateway School and has held that position since the 1982-83 school year. Dr. Wicks has known the Respondent since 1976, and prior to 1984, Dr. Wicks and her husband occasionally socialized with Respondent and her husband. However, commencing sometime in early 1983, and continuing through October 1984, a serious rift developed in the relationship between Respondent and Dr. Wicks. This personality conflict eroded their social relationship and impacted on their professional relationship. On January 26, 1983 a staff meeting was held at the Gateway School. A discussion was held regarding overcrowding of classrooms and various staff members gave recommendations concerning possible solutions. One of the staff members suggested that Respondent be given more students because of the relative small size of her class. In response to that suggestion, Respondent became visibly agitated and replied in hostile tones that she felt that she was being treated unfairly, taken advantage of and that there were other teachers with small classes. During the same staff meeting, Respondent stated that Dr. Wicks had promised her a "time-out" room but had not followed through. Upon Dr. Wicks' denial of such promise, Respondent continued to insist, in a hostile and combative manner, that Dr. Wicks had indeed promised her a "time-out" room. On January 28, 1983, Lynn Milia, Assistant Principal, acting on behalf of Dr. Wicks, approached Respondent and asked her to take a new student into her classroom. Respondent immediately became argumentative and stated that she had been taken advantage of before and was not going to allow it to happen again. On February 8, 1983, Dr. Wicks, principal at Gateway School, issued a written reprimand to Respondent for "inappropriate behaviors" based on the incidents of January 26 and 28, 1983. In a written response dated February 21, 1983, Respondent denied any disrespectful or inappropriate behavior on her part and criticized Dr. Wicks for attempting to place her "in a false light." On September 22, 1983, while employed at Gateway the Respondent injured her back while catching a falling television set. Due to this injury, Respondent was on workmen's compensation leave from November 15, 1983 through the end of the 1983-84 school year. Dr. Munson, the Respondent's doctor, stated in a letter of August 21, 1984 that Respondent could return to school during the 1984-85 school year, but advised school officials of the need for Respondent to have a limited amount of physical activity in her work. Dr. Munson noted in his records that Respondent complained of her inability to return to work with mentally handicapped students because of the physical efforts involved. On August 24, 1984, during the pre-planning period for the 1984-85 school year, Dr. Wicks and Velma Venrick, During the meeting on August 24, 1984, Respondent was offered the opportunity to apply for other positions with Petitioner. However, Respondent declined and stated that she was not interested in a different teaching position. Subsequent to the pre-planning meeting, Dr. Wicks drafted a memo on August 27, 1984 setting forth certain procedures and limitations to be utilized by Respondent while teaching her class. The limitations included Respondent not moving furniture or heavy classroom equipment, not handling students who were out of control and not doing excess lifting of heavy items. The Respondent was promised a full-time aide and instructed to arrange with the office for assistance in the event the aide was unavailable.. When the 1984-85 school year commenced, a permanent substitute teacher was assigned to Respondent's classroom for the entire day until the permanent teacher assistant was hired and placed in the classroom. On September 11, 1984, at approximately 12:55 P.M., a fire alarm sounded at the Gateway School. The fire alarm was sounded because of a strong aroma of smoke noted in the building. Approximately ten minutes after the alarm was sounded and the building supposedly evacuated, Dr. Wicks returned to the office to call the fire department. Upon entering the main hallway, Dr. Wicks, accompanied by the school's administrative secretary, saw a first grade student assigned to Respondent's classroom standing in the hallway. On September 17, 1984, Dr. Wicks issued a written reprimand to Respondent for violating guidelines contained in the Teacher Handbook concerning procedures to be followed during a fire alarm. Specifically, the Handbook directs teachers to remove all students from the building and not to return to the building until an appropriate signal is given should return to work immediately, he anticipated that she would return within a few days. Dr. Munson did not schedule a follow-up visit but recommended rest in combination with ice and massage for Respondent's injury. In a written response, Respondent stated that at the time the fire alarm sounded, the student was on the toilet. Respondent said that she decided to leave the student and return for her after the other nine students in her classroom were removed. Respondent stated that she returned to the classroom to look for the student, but the student had already been removed. Respondent then asked the lead custodian, Ruby Terry, to re-enter the building and search for the student. On Monday, September 24, 1984, Respondent was absent from school but returned unexpectedly the following day, Tuesday, September 25, 1984. Dr. Wicks decided to discuss the matter with Respondent because the substitute teacher obtained for September 24, had been asked to return on September 25. Approximately 8:20 A.M. on September 25, 1984, Dr. Wicks went to Respondent's classroom and told Respondent that in the future, Respondent must notify the school clearly of the date on which she expected to return whenever she was absent. The Respondent replied that since Dr. Wicks did not want her at work, that she would leave because she had an 8:30 A.M. doctor's appointment anyway. Dr. Wicks explained to Respondent that she was not asking her to leave. Respondent gathered her belongings and walked to the office, followed by Dr. Wicks. Upon entering the office area, Respondent asked a secretary for a Certificate of Absence form. Respondent told the secretary that she had an 8:30 A.M. doctor's appointment and also that Dr. Wicks asked her to leave. While in the office, Respondent made several statements, such as "I'm not going to let you get me" and "I will not get down to your level." The statements were directed towards Dr. Wicks, made in a loud voice and attracted the attention of several individuals in the office including students, other staff members and office personnel. Dr. Wicks returned to her office and asked the Assistant Principal and Respondent to come in. Respondent did not go into the office, but stood in the doorway and continued to discuss the matter in a very loud tone. Dr. Wicks then directed Senior Administrator for Employee Relations met with the Respondent for the purpose of reviewing her physical condition and accommodations that the school would make to reduce the likelihood of Respondent suffering re-injury. Dr. Wicks issued a written reprimand to Respondent based on the incident of September 25, 1984. The letter of reprimand, written on October 15, 1984 charged that Respondent: displayed emotional outbursts and unprofessional behavior; made threats to leave the school despite a direct order to stay; and misrepresented facts in two instances by threatening to leave school because of a doctor's appointment which Respondent did not intend to keep any way, and in informing the office secretary that Dr. Wicks had insisted that she leave the school. In a written response dated October 23, 1984, Respondent denied Dr. Wicks' accusations. on October 3, 1984, Respondent sustained an injury in the classroom when pushed by a student. The Respondent's teaching aide was working at the blackboard with his back to the students at the time of the incident. He turned around and saw Respondent lying on the floor with the student on top of her, hitting her in the stomach and all over her body. The teaching assistant immediately went over and pulled the student away from. Respondent. The fire department was called and Respondent was taken to the hospital for treatment. On October 3, 1984, following her treatment at the hospital, Respondent was examined by her physician, Dr. Munson. Dr. Munson noted no "structural abnormalities", but felt that Respondent had suffered a "contusion." Dr. Munson issued a note to Respondent stating that she could "return to work when she feels like it." Although Dr. Munson did not feel that Respondent should return to work immediately, he anticipated that she would return within a few days. Dr. Munson did not schedule a follow- up visit but recommended rest in combination with ice and massage for Respondent's injury. Following her injury on October 3, 1984, Respondent did not return to work until November 2, 1984. During the period from October 3, 1984 through November 2, 1984, Respondent continued to complain about pain in her back and rested in bed much of the time. On October 17, 1984, Respondent went to the Gateway School to deliver a written response to a reprimand and to fill out a "Request for Leave of Absence." In the request, Respondent sought a leave of absence from October 4, 1984 to an unspecified date because of her injury of October 3, 1984. Dr. Wicks advised Respondent that she would have to seek advice from the "county office" before approving the request because it was "open-ended." On October 19, 1984, Respondent had an appointment with Dr. Munson. At this visit, Respondent continued to complain of pain and indicated to Dr. Munson that she did not feel as if she could return to work. Dr. Munson told Respondent that, in his opinion, there were no "orthopedic contra-indications" to her returning to work. Respondent related to Dr. Munson that, in her opinion, she was not getting the physical help that was promised her in her classroom and that because of the physical nature of her job, she feared re-injury if she returned. On Saturday, October 20, 1984, Respondent received a letter from Dr. Scaggs, Associate Superintendent for Administrative Services and Employee Relations. In the letter, Dr. Scaggs acknowledged that Respondent had not returned to work since her injury of October 3, 1984 and requested that Respondent contact Dr. Munson to obtain a statement indicating either a specific date on which she would be able to return, or a statement that she was disabled and therefore unable to work. Respondent visited Dr. Munson's office on Monday, October 22, 1984 to procure the statement required by Dr. Scagg's letter. Dr. Munson once again informed Respondent that, in his opinion, she could return to her position at the Gateway School. Dr. Munson indicated that he had no medical objections to Respondent performing her duties at the Gateway School with the restrictions and limitations outlined in Dr. Wicks' memorandum of August 27, 1984. Respondent left Dr. Munson's office upset and angry about his conclusions. Later that morning, Dr. Wicks called Respondent to ask her if she would be coming to work that day, as Dr. Wicks had not heard from her since October 17, 1984. Dr. Wicks informed Respondent that her leave of absence had not yet been approved. Respondent told Dr. Wicks that she was still ill and would bring in a statement from the doctor on the next day, October 23, 1984. After receiving Dr. Wick's telephone call, Respondent returned to Dr. Munson's office once again but was unable to see him because he was busy making his normal rounds and attending to other patients. On October 23, 1984, Respondent reported to the Gateway School and presented a work release form to Dr. Wicks via the office secretary. The form was signed by Dr. Munson and indicated that Respondent could "return to work when she felt like it." At the time that Respondent presented the form to Dr. Wicks, she was aware that the form did not reflect Dr. Munson's then-present opinion of her ability to return to work. When Respondent presented the form, she had already been informed by Dr. Munson of his opinion that she was medically capable of returning to work. The medical form presented by Respondent on October 23, 1984 was, in fact, the form initially provided by Dr. Munson on October 3, 1984. On October 23, 1984, Respondent went to an Orange County School Board meeting to request assistance from the Board concerning her employment situation, and specifically, her assumed inability to return to work. Respondent was not scheduled on the agenda for the Board meeting and was not, therefore, afforded an opportunity to speak at the meeting. Respondent did hand out a statement to the Board members. On October 23, 1984, Dr. Scaggs spoke with Dr. Munson concerning Respondent's medical condition. After speaking with Dr. Munson, Dr. Scaggs sent a letter to Respondent by certified mail directing her to return to duty on the first regular work day following receipt of his letter. Respondent received Dr. Scaggs' letter on November 1, 1984. At approximately 4:00 P.N. on the same day Respondent called Dr. Scaggs on the telephone. Dr. Scaggs told Respondent to report to work on Friday, November 2, 1984. Respondent told Mr. Scaggs that she was still in pain and disagreed with Dr. Munson's conclusion that she was medically capable of returning to work. Respondent stated that her position was not "light duty" and that Dr. Munson did not fully understand what her job duties consisted of. Respondent confessed to Dr. Scaggs that she had indeed submitted an outdated medical report to school officials on October 23, 1984. The Respondent returned to work, as requested by Dr. Scaggs, on Friday, November 2, 1984. On Monday, November 5, 1984, the Respondent was suspended. Respondent received worker's compensation payments for the period October 3, 1984 through October 22, 1984. On November 7, 1984, Respondent applied for a hearing to protest the cut-off of worker's compensation payments. On March 1, 1985, an order was entered by a worker's compensation deputy commissioner denying Respondent's claims for benefits beyond October 22, 1984. The Respondent has appealed the order of March 1, 1985. The Respondent's belief that she was physically unable to return to work at Gateway School between October 19, 1984 and November 2, 1984 was held in good faith. However, Respondent's belief that she was incapable of returning to work and her fears that returning would be detrimental to her health were unreasonable in view of her medical condition and the more than adequate protections, safeguards and physical limitations which were provided for and allowed by school officials as outlined in Dr. Wicks' memorandum of August 27, 1984.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the School Board of Orange County enter a final order continuing Respondent's present suspension without pay until the pre-planning period of the 1987-88 academic year. DONE and ORDERED this 15th day of May, 1986 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON 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 15th day May, 1986. COPIES FURNISHED: Frank C. Kruppenbacher, Esquire Post Office Box 640 Orlando, Florida 32802-0640 Joseph Egan, Jr., Esquire Post Office BOx 2231 Orlando, Florida 32902 Honorable Ralph D. Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 Judith Brechner, Esquire General Counsel Knott Building Tallahassee, Florida 32301 James L. Schott Superintendent Orange County Public Schools P. O. Box 271 434 North Tampa Avenue Orlando, Florida 32802 APPENDIX The following-constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Findings of Fact 1 and 2. Addressed in procedural background section. Adopted in Finding of Fact 3. Adopted in Finding of Fact 6. Adopted in Finding of Fact 3. Adopted in Finding of Fact 7-10. Partially adopted in Findings of Fact 17-19. Matters not included therein are rejected as not supported by competent substantial evidence. Adopted in Finding of Fact 11. Adopted in Finding of Fact 13. Adopted in Finding of Fact 12. Adopted in Finding of Fact 13. Adopted in Finding of Fact 14. Adopted in Finding of Fact 15. Adopted in Finding of Fact 24. Adopted in Finding of Fact 25. Partially adopted in Finding of Fact 29. Matters not contained therein are rejected as not supported by competent substantial evidence. Adopted in Findings of Fact 28 and 31. Adopted in Findings of Fact 28 and 31. Adopted in Finding of Fact 28. Rejected as a recitation of testimony. Partially adopted in Findings of Fact 28 and 31. Matters not contained therein are rejected as unnecessary. Adopted in Finding of Fact 12. Adopted in Finding of Fact 31. Adopted in Findings of Fact 20-23. Partially adopted in Finding of Fact 30. The finding that Dr. Wicks directed Respondent to report to work on October 22, 1984, is rejected as misleading and not supported by the evidence. Adopted in Finding of Fact 32. Rejected as subordinate. Rejected as not supported by competent substantial evidence. Adopted in Finding of Fact 14. Adopted in Finding of Fact 29. Adopted in Finding of Fact 34. Adopted in Finding of Fact 35. Rejected as misleading and subordinate. Rejected as misleading and not supported by the evidence. Rejected as subordinate. Rejected as a recitation of testimony. Rejected as subordinate. Rejected as misleading and subordinate. Rejected as a recitation of testimony. Rejected as a recitation of testimony and/or subordinate. Rejected as misleading and subordinate. Rejected as subordinate. Rejected as subordinate. Rejected as subordinate. Partially adopted in Finding of Fact 37. Matters not contained therein are rejected as subordinate. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Finding of Fact 1. Adopted in Findings of Fact 2 and 3. Adopted in Finding of Fact 6. Adopted in Finding of Fact 5. Adopted in Finding of Fact 4. Adopted in Finding of Fact 11. Adopted in Finding of Fact 12. Adopted in Finding of Fact 13. Adopted in Finding of Fact 15. Rejected as subordinate and not supported by competent substantial evidence. Adopted in Finding of Fact 6. Adopted in Findings of Fact 7-10. Adopted in Finding of Fact 19. Adopted in Finding of Fact 19. - Adopted in Finding of Fact 23. Partially adopted in Finding of Fact 23; matters not contained therein are rejected as subordinate. Partially adopted in Finding of Fact 24; matters not contained therein are rejected as subordinate. Rejected as subordinate. Partially adopted in Finding of Fact 24; matters not contained there in are rejected as subordinate. Rejected as subordinate. Rejected as subordinate and/or not supported by competent substantial evidence. Adopted in Findings of Fact 26 and 36. Partially adopted in Finding of Fact 31; matters not contained therein are rejected as subordinate. Adopted in Finding of Fact 29. Partially adopted in Finding of Fact 31: matters not contained, therein are rejected as subordinate. Adopted in Finding of Fact 28. Adopted in Finding of Fact 31. Partially adopted in Finding of Fact 30; matters not contained therein are rejected as not supported by competent substantial evidence. Adopted in Finding of Fact 31. Rejected as subordinate and not supported by competent substantial evidence. Partially adopted in Finding of Fact 32; matters not contained therein are rejected as not supported by competent substantial evidence. Adopted in Finding of Fact 33. Adopted in Finding of Fact i4. Rejected as not supported by competent substantial evidence. Partially adopted in Finding of Fact 35, matters not contained therein are rejected as subordinate. Adopted in Finding of Fact 37. Rejected as subordinate. Rejected as subordinate. Rejected as subordinate. Rejected as not supported by competent substantial evidence. Rejected as not supported by competent substantial evidence. Adopted in Finding of Fact 38. Rejected as not supported by competent substantial evidence. Rejected as not supported by competent substantial evidence. Addressed in Conclusions of Law section. Rejected as legal argument. Rejected as legal argument.
The Issue The ultimate issue is whether Coyle is eligible for vocational rehabilitation benefits. The eligibility requirements for vocational rehabilitation benefits are set forth in both federal and state law. An individual is eligible when it is certified that: A physical or mental disability is present; A substantial handicap to employment exists; and Vocational rehabilitation services may reasonably be expected to render an individual fit to engage in gainful employment. Based upon the evidence presented at the hearing, there is no viable dispute that Coyle would not benefit from the receipt of vocational rehabilitation services, or that a documented physical disability does not exist. The real factual issue presented is whether Coyle has a substantial handicap to his employment. Both parties submitted post hearing proposed findings of fact in the form of proposed recommended orders filed March 4 and March 15, 1983. To the extent the proposed findings of fact have not been included in the factual findings in this order, they are specifically rejected as being irrelevant, not being based upon the most credible evidence, or not being a finding of fact.
Findings Of Fact The Petitioner, Michael L. Coyle, applied for vocational rehabilitation services on May 28, 1982. Coyle is a 46-year-old white male who is divorced with custody of his seven-year-old daughter. Coyle worked for 14 years as a printer/compositor for the Sarasota Herald-Tribune. This job required that Coyle stand during his entire work day. Prior to working for the Sarasota Herald-Tribune, Coyle worked as an airline ticket clerk and supervised the loading of freight for an airline. These positions required that Coyle stand during much of his work day. When Coyle applied for vocational rehabilitation services, he was on medical leave from the Sarasota Herald-Tribune on advice of his personal physician. This medical leave was for the purpose of alleviating pain in Coyle's left knee. This pain had become incapacitating. When Coyle applied for vocational rehabilitation services, his medical leave was almost over, and the condition in his left knee had not improved. Coyle's employer, the Sarasota Herald-Tribune, had no positions available in which Coyle could work seated, and Coyle could not perform his duties as a printer/compositor while seated. Coyle was required to perform his duties while standing, and no opportunity existed for Coyle to be seated periodically during his work day. Coyle's application for vocational rehabilitation services was approved, and Coyle was certified as eligible on July 1, 1982. A rehabilitative plan was not prepared for Coyle by Coyle's counselor. Before a rehabilitative plan could becompleted, Coyle applied for additional benefits, to include transportation and maintenance costs. By this time, Coyle's medical studies were completed and their results available. The physicians reported that Coyle had a degenerative and chronic joint disease in his left knee; however, Coyle was able to work if he took aspirin and alleviated the strain on his knee by not standing. Based upon these reports, Coyle's request for maintenance and transportation costs were denied. Based upon the reevaluation of the medical opinions, the agency determined that Coyle was not eligible to receive any vocational rehabilitation benefits. Coyle was notified of the agency's decision to terminate his vocational rehabilitation benefits, and Coyle timely initiated administrative review of that determination. Coyle's records do not reflect that Coyle had applied for SSI and food stamps. Coyle receives some money as an insurance payment for his disability from private insurance maintained through his former employer.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, Michael L. Coyle's basic vocational rehabilitation benefits should be reinstated retroactive to the date of original termination. DONE and RECOMMENDED this 11th day of April, 1983, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of April, 1983.
The Issue Whether Petitioner is entitled under Florida’s workers’ compensation laws to payment for professional services to an injured worker for the billings identified by the three notices of disallowance at issue in this consolidated proceeding.
Findings Of Fact The claimant, a male, was born July 21, 1961. On February 17, 1995, the claimant sustained a severe traumatic brain injury (TBI) and other injuries during the course of his employment with the City of Hollywood, Florida. At all times relevant to these proceedings, the claimant has been receiving benefits pursuant to the Florida workers’ compensation laws. At all times relevant to this proceeding, the carrier has been the workers’ compensation carrier for the employer. At all times relevant to this proceeding, the claimant has lived in a home purchased for him by the carrier. The claimant has a life estate in the home and the carrier has the remainder interest. The claimant lives in the home with his mother and has 24-hour attendant services paid for by the carrier. The carrier has purchased a van for the claimant, which his attendant uses to transport the claimant to therapy and other appointments. The claimant has a history of mental illness dating to his teenage years, when he was diagnosed with schizophrenia. As a result of his injury and his illness, the claimant acts out periodically and becomes physically resistive to those trying to care for him. At all times relevant to this proceeding, Petitioner has been a provider of rehabilitation services to various patients, including those with TBI. Dr. Marie DiCowden, a psychologist, is the founder and director of Petitioner. Dr. DiCowden described Petitioner as being a health care community that provides an integrated administration for a long continuum of care post acute rehabilitation through community reintegration using health promotion, prevention, and integrated primary care. Petitioner is accredited by two national accrediting organizations referred to by the acronyms CARF (Commission on Accreditation of Rehabilitation Facilities) and CORF (Commission on Outpatient Rehabilitation Facilities). Petitioner is also certified by the Florida Division of Vocational Rehabilitation (formerly housed in the Department of Labor and now housed in the Department of Education), the Florida Division of Workers’ Compensation, and by the Florida Brain and Spinal Cord Injury Program.4 As a result of his accident, the claimant was in a coma for several weeks. He was hospitalized (first in an acute care facility and subsequently in two different rehabilitation hospitals) until December 28, 1995, when he was placed in Whitehall Nursing Home. Whitehall was not an appropriate placement for the claimant because of his behavior and his need for rehabilitation services. On March 27, 1996, Yvonne Beckman, a rehabilitation nurse consultant employed by the carrier, referred the claimant to Petitioner for an evaluation. Shortly before that referral, the claimant had been evaluated by two neuropsychologists (Dr. Jorge A. Herra and Dr. Lee. H. Bukstel), who had opined that the claimant would benefit from rehabilitation services. Ms. Beckman asked Dr. DiCowden to recommend a neurologist who practiced in South Florida. In response, Dr. DiCowden gave Ms. Beckman the names of three neurologists, one of whom was Dr. Paul Wand. Ms. Beckman authorized Dr. Wand to provide services to the claimant. Dr. Wand prescribed continued rehabilitation services for the claimant at Petitioner’s facility. The services at issue in this proceeding were provided by Petitioner pursuant to prescriptions from Dr. Wand.5 Prior to accepting the claimant, Dr. DiCowden informed a representative of the carrier that Petitioner would accept the claimant as a patient in its brain injury program and estimated the annual costs to be $200,000.00. The claimant began receiving rehabilitation services from Petitioner five days a week beginning August 1, 1996. The claimant received from Petitioner’s staff physical therapy, occupational therapy, cognitive retraining, speech training, language training, psychological services, art therapy, music therapy, and yoga therapy. The claimant continued to receive those rehabilitation services from Petitioner (five days a week) from August 1996 to the date of the hearing (and presumably to date). The authorization for the provision of rehabilitation services to the claimant was periodically reviewed by the carrier. In November 1998, the carrier had the claimant examined by Dr. Richard Bailyn (a neurologist) and by Dr. Kevin Lapinski (a neuropsychologist). Those doctors opined that the claimant was not benefiting from cognitive retraining, occupational therapy, speech therapy, or language therapy at Petitioner’s facility. They further opined that the claimant required an activity program to satisfy his recreational and stimulation needs, but that such a program did not require Petitioner’s facility since the claimant’s aide could be trained to provide those services. Dr. Bailyn was of the opinion that as of November 1998 the various therapies provided by Petitioner’s facility to the claimant were not reasonable and were not medically necessary. Section 440.13(6), Florida Statutes, requires a carrier to review bills by providers of medical services as follows: (6) UTILIZATION REVIEW.--Carriers shall review all bills, invoices, and other claims for payment submitted by health care providers in order to identify overutilization and billing errors, including compliance with practice parameters and protocols of treatment established in accordance with this chapter, and may hire peer review consultants or conduct independent medical evaluations. Such consultants, including peer review organizations, are immune from liability in the execution of their functions under this subsection to the extent provided in s. 766.101. If a carrier finds that overutilization of medical services or a billing error has occurred, or there is a violation of the practice parameters and protocols of treatment established in accordance with this chapter, it must disallow or adjust payment for such services or error without order of a judge of compensation claims or the agency, if the carrier, in making its determination, has complied with this section and rules adopted by the agency. As required by Section 440.13(6), Florida Statutes, the carrier conducted a utilization review of the services provided by Petitioner to the claimant beginning in late 1999. The carrier retained Dr. Thomas G. Hoffman to review the claimant’s medical records and to express opinions pertaining to the services provided to him by Petitioner. On April 10, 2000, Dr. Hoffman submitted a report that included several conclusions, including those that follow. The claimant has severe, residual deficits as a result of his accident. He requires 24-hour attendant care. There is no reasonable expectation for further improvement. The therapy he was receiving at that time (and still receives) was not reasonable or medically necessary. The therapy was excessive in frequency and duration. Dr. Hoffman’s deposition testimony was consistent with his written report. The carrier retained Dr. Victor B. Robert to review the claimant’s medical records and to express opinions pertaining to the services provided to him by Petitioner. On June 19, 2000, Dr. Robert submitted a report that included several conclusions, including those that follow. The treatment rendered by Petitioner was excessive in frequency and duration. The claimant reached an improvement plateau in early 1997 and therapy was thereafter needed only for maintenance reasons. Dr. Robert’s testimony was consistent with his written report. The carrier retained International Assessment Systems, Inc. (IAS), a professional association of various medical practitioners, to conduct an independent neurological, neuropsychological, and psychological examination of the claimant. On September 22, 2000, IAS submitted a report (Intervenors’ Exhibit 8) based on the examinations of claimant and the review of his medical records by Dr. Kenneth C. Fischer, Dr. Alan J. Raphael, and Dr. Charles J. Golden. The report included several observations and conclusions, including those that follow. The testimony of Drs. Fischer, Raphael, and Golden was consistent with the written report they prepared for IAS. Pages 12-13 of the IAS report contain the following: [The claimant] was oriented to person, but not to place or time. He did not know the current day, date, month, or year. His sensorium was significantly impaired. His mood was volatile, ranging from normal to agitated. His affect was similarly labile, at times he was placid, laughing, and able to converse at a basic level, however he was also quite violent. Attention and concentration were significantly impaired. His receptive, expressive and fluency language capabilities were similarly impaired, although, as noted, he was capable of basic/functional [sic] communication. There were no direct indications of hallucinatory or delusional phenomena, however, based on his behavior, it is likely that some hallucinatory or delusional phenomena were present. His reality testing and insight were significantly impaired. During his repeated fits of anger, he often uttered suicidal and homicidal threats, however there was no evidence of actual intent or plan. He showed no ability to monitor his own safety. Page 15 of the IAS report contains the following: From a neuropsychological and psychological perspective, there were gross impairments noted in his cognitive abilities and emotional functioning. . . . He has been afforded considerable time to maximize his cognitive recovery at this point. It is clear that he has plateaued with regard to cognitive improvement. He will not benefit from continued rehabilitation efforts, although he will require continued stimulation to avoid further cognitive decline. His mood and labile affect may also be benefited by continued stimulation in terms of recreational activities to provide appropriate quality of life.6 Page 17 of the IAS report contains the following under the heading “Neurologic Impression”: . . . I [Dr. Fischer] would recommend that he be placed in a supervised residential setting which will give better protection for him and his caregivers than his present home setting. As the patient is four and a half years status post-injury, specific rehabilitative and therapeutic endeavors will have no benefit and are unwarranted. This would relate to hyperbaric oxygen and cognitive rehabilitation was well as any form of physical, occupational, or speech therapies. Page 19 of the IAS report contains the following: [The claimant] was certainly aided by initial removal from the nursing home and receiving cognitive and physical therapies at Biscayne. However, he has long since reached a plateau in his improvement and no further improvement can be expected at this time. Maximum medical improvement should have been reached within 18 to 24 months post-injury. Any treatment after that time would be palliative or maintenance-oriented (sic). Therefore, the treatment prescribed by Dr. Wand became unreasonable and medically unnecessary several years ago. Page 20 of the IAS report reflects the opinion that while the treatments at Petitioner’s facility were excessive in all respects, the claimant does require maintenance rehabilitation services. It is opined that cognitive retraining is no longer appropriate, but that cognitive tasks and games are appropriate in a recreational setting. By letter dated October 27, 2000, the carrier, through its counsel, advised Petitioner that based on its Utilization Review investigation, it had concluded that as to the identified dates of service “. . . there has been overutilization and/or misutilization since the treatment has been excessive and not medically necessary.” This Letter of Disallowance was the first of a series of letters sent by counsel for the carrier to Petitioner, and frames the issues for all of the disallowances at issue in this proceeding. Thereafter, Petitioner timely disputed the carrier’s basis for disallowing its services to the claimant and petitioned the Respondent to resolve the dispute. The total amount disallowed and at issue in this consolidated proceeding is $615,587.00. Respondent employed four Expert Medical Advisors (EMAs) to perform peer review and assist it in resolving the dispute involving the rehabilitation services provided the claimant by Petitioner. Respondent employed Dr. Fernando G. Miranda, Dr. Jorge Villalba, Dr. Gerard P. Garcia, and Dr. David McCraney to serve as EMAs.7 Each of these doctors prepared a report following his review and each sat for deposition. Dr. Miranda’s report, dated September 17, 2001, is attached to his deposition (Intervenors’ Exhibit 17). The report included several conclusions, including those that follow. The referral for intensive multi-disciplinary treatment at Petitioner’s facility is no longer medically necessary. The services provided by Petitioner are excessive in frequency and duration and he will not further improve with speech therapy, cognitive retraining, occupational therapy, or individual psychotherapy. Maintenance physical therapy is recommended. Dr. Miranda testified in his deposition that the recommended physical therapy could be performed by the claimant’s attendant. Dr. Miranda’s deposition testimony was consistent with his written report. Dr. Villalba’s report dated October 15, 2001, is attached to his deposition (Intervenors’ Exhibit 19). The report included several conclusions, including those that follow. The claimant reached maximum medical improvement between February 1996 and October 1997. Dr. Villalba described the services provided by Petitioner to claimant “clearly not medically necessary” after October 1997. He also opined that the claimant will require maintenance physical therapy, occupational therapy, and speech and language therapy on a continuing basis. Dr. Villalba’s deposition testimony was consistent with his written report. Dr. Garcia’s undated report was prepared during the second week of October, 2001, and is attached to his deposition (Intervenors’ Exhibit 16). The report included several conclusions, including those that follow. The claimant should be on a maintenance program and Petitioner’s treatment was excessive. The claimant is unlikely to make further neuropsychological improvement, but he should be treated by a psychiatrist for his schizophrenia. Dr. Garcia’s deposition testimony was consistent with his written report. Dr. McCraney’s report dated November 18, 2001, is attached to his deposition (Intervenors’ Exhibit 18). The report included several conclusions, including those that follow. While the care provided Petitioner appears to be excellent, the claimant is far beyond the point where Petitioner’s therapies would be reasonable or medically necessary. Dr. McCraney’s deposition testimony was consistent with his written report. Dr. DiCowden testified at length about the various services her facility provides the claimant and the records her staff generates as a result of those services. Dr. DiCowden testified that her staff is well-trained in assessing the functional status of rehabilitation patients using nationally recognized assessment methodologies. FIN-FAM, acronyms for “Functional Independence Measures” and “Functional Assessment Measures” is one assessment measure used by Petitioner’s staff. The FIN-FAM measure purports to quantify a patient’s progress or lack thereof and can be used by staff as a tool in developing treatment strategies. Dr. DiCowden presented a chart of the FIN-FAM scores for the claimant for the periods at issue in this proceeding. The chart, prepared for this litigation, reflects steady functional improvement of the claimant. Dr. DiCowden further testified that Petitioner’s staff uses a scale of cognitive functioning developed by a rehabilitation facility known as Rancho Los Amigos Hospital, which measures a patient’s response to stimuli on a scale of Ranch Level I (no response) to Ranch Level VII (appropriate response). She asserts that the measurement of the claimant’s status using the Rancho methodology reflect that the claimant has improved over the years. In support of its position that the claimant steadily progressed while undergoing therapy at its facility, Petitioner presented the testimony of Drs. Antonio Puente, Vernando Batas, and Richard Kishner who observed the claimant at Petitioner’s facility on June 23, 2003, September 13, 2003, and February 24, 2004, respectively. Each of these witnesses had the subjective impression that the claimant was benefiting from therapy at Petitioner’s facility. Petitioner asserts that the FIN-FAM scores, the Rancho Levels, and the testimony of its experts establish that the claimant is benefiting from therapy. That assertion is rejected as being contrary to the greater weight of the credible evidence. The FIN-FAM scoring and the Rancho scale depend on the subjective impressions of the various therapists who treat the claimant at Petitioner’s facility and the record reflects that the scoring was done on an irregular basis.8 Dr. DiCowden adamantly disagreed with the contention that the rehabilitation services provided by her facility is not reasonable or medically necessary. All evidence presented by Petitioner, including Dr. DiCowden’s testimony, has been carefully considered by the undersigned in resolving the conflicts in the evidence. At best, Petitioner established that the claimant made some unquantified amount of progress in the highly structured therapeutic setting at Petitioner’s facility. Intervenors’ experts clearly established that any progress made by the claimant in therapy did not transcend that therapeutic setting to the real world. Petitioner failed to establish by a preponderance of the evidence that the rehabilitation services it provided the claimant were appropriate and medically necessary. To the contrary, the greater weight of the credible evidence established that at all times relevant to this proceeding the rehabilitation services provided by Petitioner to the claimant have been excessive and that those excessive services have been neither reasonable nor medically necessary.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration issue a final order that sustains the disallowances at issue in this consolidated proceeding. DONE AND ENTERED this 15th day of June, 2004, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of June, 2004.
