The Issue Whether certain operating procedures or policies at Baker Correctional Institution, a prison operated by respondent, are unpromulgated rules and therefore invalid under Section 120.56, Florida Statutes (1981)
Findings Of Fact and CONCLUSIONS OF LAW I. Generally CONCLUSIONS OF LAW The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. $120.56, Fla.Stat. (1981). Petitioners are substantially affected by the specific policies and procedures at issue. The Department concedes that they have standing to bring and maintain this administrative rule challenge proceeding. See, 120.56, Fla.Stat. The parties' proposed findings of fact have been considered in preparing this order. To the extent the proposed findings were not consistent with the weight of credible evidence, they have been either rejected, or, when possible, modified to conform to the evidence. Additionally, proposed findings which were subordinate, cumulative, immaterial, or unnecessary, have been rejected. II. Findings of Fact The parties stipulate that the following written policy is in effect at Baker Correctional Institution: Inmates will be permitted to purchase and receive legal materials, such as law books, and keep them in their personal lockers if space is available. Baker Correctional Institution Operating Procedure (I0P) #78-G-1, Section VI, and 80-G-34, Section IV, pg. 2 of 3. Conclusions of Law This policy is not an unpromulgated rule, but rather is a restatement of Rule 33-3.05(6), Florida Administrative Code, which reads, in relevant part: (6) Inmates shall be allowed to purchase legal materials (such as law books) at their own expense, limited only by the amount of space available to the inmate for the storage of such items. Inmates shall be allowed to keep legal material in their quarters subject to storage limitations. III. Findings of Fact The parties stipulate that the following written policy is in effect at Baker Correctional Institution: If the inmate does not send his property out of the institution within thirty (30) days after proper notification, he shall forfeit ownership of such and it will be disposed of by the institution in accordance with Department of Corrections rules and regulations 33-3.2, 33-3.06, and in accordance with the guidelines on DC Form #4, Authorization for Disposition of Mail and Property. I0P #78-G-3, Section VII p. 2 of 2, and 80-G-32, Section III B. Conclusions of Law Contrary to petitioners' contention, it has not been shown that this policy has the effect of a rule but was not promulgated as such. See, State Department of Administration v. Stevens, 344 So.2d 290 (Fla. 1st DCA 1977) In effect, the challenged policy simply requires that impounded or unauthorized inmate property be disposed of in accordance with Department rules and DC Form #4, Authorization for Disposition of Mail and Property, an authorization which each inmate must sign as a condition of being allowed to keep personal property within a correctional institution. See, Section 3.025(7), (8), Fla. Admin. Code. DC Form #4, which is not in evidence, has not been shown to contain a Department interpretation of law or policy which is virtually self-executing, intended by its own effect to create rights, require compliance, or otherwise have the direct and consistent effect of law. Stevens, supra at 296; McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977). IV. Findings of Fact Petitioners allege that there is an unwritten rule at Baker Correctional Institution which requires that any and all legal material, books, and files be destroyed by the institution after 30 days. There is no written or unwritten policy at Baker Correctional Institution which imposes such a requirement. Conclusions of Law Petitioners' claim is rejected for failure to prove the existence of such a policy at Baker Correctional Institution. V. Findings of Fact The parties stipulate that the following written policy statement is in effect at Baker Correctional Institution: Any radio that is altered in any way, cabinet, case electronically and/or electrically will be confiscated and the inmate will lose possession of the radio and/or disciplinary action will be taken. I0P #78-G-15, Section VIII, pg. 2 of 3. Conclusions of Law This policy is nothing more than a logical restatement of Rule 33- 3.06(1)(b) Any item or article not originally contraband shall be deemed contraband if it is passed from one inmate to another without authorization or if it is altered from its original condition. (Emphasis added) Further, Subsection (7)(d) of this rule allows contraband to be confiscated and Rule 33-3.08, generally, authorizes disciplinary action against inmates who violate Department rules. VI. Findings of Fact The parties stipulate that the following institutional operating procedure is in effect at Baker Correctional Institution: Inmates are prohibited from using typewriters for personal correspondence, filing grievances, or other personal use. Any violation of this operating procedure may constitute a basis for disciplinary action. I0P #78-G-21. This is a Department policy, never promulgated as a rule, which is uniformly applied throughout Baker Correctional Institution, is--by its own terms--virtually self-executing, and intended to require compliance and otherwise have the consistent effect of law. Conclusions of Law This policy has the effect of a rule, as defined by Section 120.52(14), Florida Statutes (1981), and is therefore an invalid exercise of delegated legislative authority. See, Stevens, supra. The Department, in its post-hearing proposed findings of fact and conclusions of law, "does not deny that . . . [this policy] is an invalid rule." VII. Findings of Fact Petitioners allege that there is an unwritten policy at Baker Correctional Institution which allows only one legal size envelope, at a time, to be issued an inmate. There is no such policy. Rather the number of legal size envelopes issued to inmates depends on the availability of envelopes and the reasonableness of the requests. Within these guidelines, the exact number of envelopes issued is left to the discretion of the correctional officer involved. Conclusions of Law Since this policy has been shown to operate as no more than a guideline, subject in application to the discretion of the enforcing officer, it is not a rule within the meaning of Chapter 120, Florida Statutes (1981), and need not be promulgated as such. See, Department of Highway Safety and Motor Vehicles v. Police Benevolent Association, 400 So.2d 1302 (Fla. 1st DCA 1981). VIII. Findings of Fact The parties stipulate that the following written policy is in effect at Baker Correctional Institution: Visitors or regular visitors will either be Saturday or Sunday, but not both days. I0P #78-6-7. This policy, never promulgated as a rule, is uniformly applied, virtually self-executing, and intended by its own effect to create rights or require compliance, or otherwise have the direct and consistent effect of law. Conclusions of Law This policy is, in effect, a rule, but was not promulgated as such. It is therefore an invalid exercise of delegated legislative authority. See, Stevens, supra; Sumner v. Department of Corrections, (DOAH 82-676R), 4 FALR 1198-A (1982), where a memorandum, issued by the Superintendent of Polk Correctional Institution, restricting prisoners' visitation rights to one weekend day, was declared invalid. IX. Findings of Fact The parties stipulate that the following written policy is in effect at Baker Correctional Institution: We will discontinue receiving funds for inmates from visitors. Interoffice Memo 4-1-83. This policy, never promulgated as a rule, is applied uniformly, virtually self-executing, and intended by its own effect to create rights or require compliance, or otherwise have the direct and consistent effect of law. Conclusions of Law This policy has the effect of a rule, but was not promulgated as one. Thus it is an invalid exercise of delegated legislative authority. See, Stevens, supra; Sumner, supra. Contrary to the Department's contention, this policy is not a mere restatement of Rule 33-3.06(5) which, at least by implication, allows visitors to bring money to inmates of a correctional institution. Findings of Fact The parties stipulate that the following written policy is in effect at Baker Correctional Institution: Only one dollar bills will be spent by visitors in the visiting park. This policy, too, is uniformly applied, virtually self-executing, and intended by its own effect to create rights or require compliance, or otherwise have the direct and consistent effect of law. Conclusions of Law This policy, which has the effect of a rule but was not adopted as such, is therefore an invalid exercise of delegated legislative authority. See, Stevens, supra; Sumner, supra. Further, the Department's post-hearing proposed findings of fact state at page 5: The . . . [Department] does not deny that the above written policy is an invalid rule. For these reasons, it is ORDERED: That the Department procedures or policies described in Sections VI, VIII, IX, and X, are invalid exercises of delegated legislative authority; and That, in all other respects, petitioners Petition to Determine the Invalidity of a Rule, filed October 11, 1983, is denied. DONE and ENTERED this 6th day of February, 1984, in Tallahassee, Florida. R. L. CALEEN, JR. 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 6th day of February, 1984. COPIES FURNISHED: Randall A. Holland, Esquire Assistant Attorney General Room 1601, The Capitol Tallahassee, Florida 32301 Douglas L. Adams, Joe Lewis Holland Union Correctional Institution Post Office Box 221 Raiford, Florida 32083 Liz Cloud, Chief Department of State Bureau of Administrative Code Room 1802, The Capitol Tallahassee, Florida 32301 Carroll Webb, Executive Director Administrative Procedures Committee Room 120, Holland Building Tallahassee, Florida 32301 Louie L. Wainwright, Secretary Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32301 Curtis Head and Melvin Davis Baker Correctional Institution Post Office Box 500 Olustee, Florida 32072
Findings Of Fact Stephen J. Sefsick was employed as Corrections Officer I at Zephr Hills Corrections Institute (ZCI) in November 1980. Sefsick met the minimum qualifications for promotion to Correctional Officer II. Sefsick is a white male and was not promoted to the position of Corrections Officer II. On May 24, 1985, Sefsick was denied a promotion to Corrections Officer II at ZCI when that promotion was given to Constance Hale, a Hispanic female. On June 28, 1985, Sefsick was denied a promotion to Corrections Officer II when that promotion was given to Ronald Young, a black male. A promotion committee consisted of Correctional Officer Supervisor I Wayne Hutto, Correctional Officer Chief Sammy Hill, Assistant Superintendent Eugene Ginn, and Superintendent Ray Henderson. The first two named interviewed 22 applicants for the vacancy filled May 24, 1985, including Sefsick as well as reviewed all applicants' personnel file. They also relied upon their knowledge of the applicants, all of whom they supervised, to make this recommendation. For the May 24, 1985, vacancy Hutto and Hill recommended Correctional Officer I Constance Hale for the promotion, citing her past performance and her continuing education and training as reasons for their recommendation. Assistant Superintendent Ginn reviewed this recommendation, approved same and forwarded it to Superintendent Henderson who has final promotion authority at ZCI. Superintendent Henderson approved the recommendation and Hale received the promotion. The same procedure was followed for the position filled June 28, 1985, except that those applicants interviewed for the May promotion were not again interviewed. On June 28, 1985, Hill and Hutto recommended Correctional Officer I Ronald Young for promotion to Correctional Officer II and this recommendation was accepted by the Superintendent and Young was promoted. Florida Department of Corrections has an Affirmative Action Plan (Exhibit 5) which provides that "promotions to vacant positions shall be through open competition and based on prior job performance in order that the best qualified person for the position is chosen. However, every opportunity shall be made to upgrade and promote women, minorities, and the handicapped to more responsible positions. . . . " No quota for promotions is provided and all witnesses concurred that the best applicant was chosen for the two vacancies here questioned. Sefsick received five employee service ratings between the time he was employed in November 1980 and the time of the promotions in question. The first two evaluations in 1981 were conditional, the third was satisfactory, and the fourth and fifth were above satisfactory with the fifth assigned November 20, 1984. In January 1985, Sefsick was counselled by Major Hill and Lieutenant Hester regarding his practice of using the "snitch" system to make drug seizures. He was informed that he was thereby jeopardizing the safety of inmates as well as his own safety. An additional 160 hours of training had to be completed by correctional officers at ZCI in order to qualify for the full pay increase effective in 1985. Sefsick was working the night shift and made little effort to change shifts to attend the evening classes required to complete the training. His supervisors believed he was resisting taking the required training. However, he completed the training before the deadline. Officer Hale completed the required training for correctional officer and in addition received training in Advanced Emergency Medical Procedures and Advanced Report Writing and Review. Since her employment on June 15, 1982, Officer Hale has received three evaluations in which all of the marks assigned were satisfactory and above satisfactory. Since his employment as a correctional officer on March 18, 1983, Officer Young has received four evaluations, two of which were satisfactory and two above satisfactory. Young has also completed all required training courses. Neither Sefsick's race nor his sex was considered by the promotional committee in denying him promotion.
Findings Of Fact Petitioner contracted with Respondent to provide, inter alia, through appropriate subproviders, mental health services in accordance with the provisions of the Baker Act, Chapter 494 Part I, Florida Statutes and rules and regulations promulgated pursuant thereto (Exhibit 3). Respondent subcontracted with Apalachee Community Mental Health Services, Inc. (MHS) to provide, as an independent contractor, or through subagreement with qualified providers, services according to the Mental Health Board Plan; and, in carrying out these services, to comply with federal and state statutes and regulations. In carrying out this contract MHS processed and paid, from funds receivec rem Petitioner, provider services in connection with the Baker Act program. During the period covered by this audit, Dr. Robert G. Head and Dr. Cyril Phillips provided psychiatric care to Baker Act patients for which they were reimbursed by MHS. Most of this care was provided at Goodwood Mental Health Facility, a unit operated by Tallahassee Memorial Regional Medical Center (TMRMC). Both Head and Phillips were designated as mental health providers by Petitioner. Head and Phillips shared office space and a secretary but were not a partnership or organized as a professional association. While conducting the audit, the auditors contacted Dr. Head to audit his racords for the Baker Act patients treated. Dr. Head claimed he had no advance notice of this audit and when he was called by his office at his home while suffering from the flu he refused permission for the auditors to examine his records. The audit was completed without benefit of any of Head's or Phillips' records and the discrepancy in failing to account for third party reimbursements formed the basis for the deficiency here claimed. When Dr. Head was told the auditors had the right to inspect Baker Act patient records, he rescinded his refusal and some four months later his office was visited to check these records. Upon the auditor's arrival no Baker Act patient records for the audit period could be located. The secretary for Head and Phillips had absconded and their accountant found she had embezzled a considerable sum ($75,000 - $100,000) from the office by forging endorsements on checks received and depositing in her or her husband's bank account. Apparently patient records were removed or destroyed to conceal the embezzlement. In any event no such records were produced by the doctors and no effort was made by the doctors to obtain from TMRMC records of those patients treated by them who had insurance to cover part or all of their treatment. Such insurers would be third party payers from whom the provider is required to collect and account to Petitioner for such collections. That the doctors provided the treatment is evidenced by the bills they submitted. The only issue is whether the doctors were also paid by third parties for these services, and if so, how much were they paid that should be returned to Petitioner. Neither Head nor Phillips gave sufficient attention to the paperwork involved with the Baker Act patients but left this up to the secretary. The missing records covered two fiscal years so the inadequate supervision of the office continued over a prolonged period. Respondont suggests that Petitioner's auditors could have reconstructed the doctors' records by comparing the Baker act patients for whom they billed MHS with TMRMC records to show which of those patients costs could have been part reimbursed by third parties. Had that been done it would have shown that a majority of those patients had no "third Party" source of funds. No evidence was submitted that Petitioner has such a duty. Exhibit 3 provides the Board and the provider will retain all financial records, supporting documents, statistical records and any other doctments pertinent to this agreement for a period of three years after submission of final report, if an audit has not been initiated during that period, and the findings have not been resolved at the end of three years, the records shall be retained until the resolution of the audit findings. Exhibit 6 consists of records of seven patients treated by Head or Phillips during the audit period. Of these seven, two had insurance available from which third party payments were available. No audits of providers were made by Respondent during the period covered by the audit.
The Issue Should Petitioner discipline Respondent for her acts as a correctional officer in association with an inmate?
Findings Of Fact In response to requests for admissions, Respondent admitted the following: The Respondent was certified by the Criminal Justice Standards and Training Commission on July 6, 1992, and was issued correctional number 94229. Between June 1 and July 31, 1994, the Respondent was employed as a Correctional Officer with the North Florida Reception Center. On October 16, 1995, during an interview with Inspector H. McBride, the Respondent denied knowing Inmate Dean Richardson. (D) On October 16, 1995, during an interview with Inspector H. McBride, the Respondent denied knowing Toyia Kelly. E) On March 6, 1996, Respondent resigned her position at North Florida Reception Center. Between June 1, 1994 and July 31, 1994, Inmate Dean Richardson was committed to the North Florida Reception Center as a permanent inmate. In that period Respondent came in contact with Mr. Richardson in her capacity as a correctional officer and his capacity as an inmate at North Florida Reception Center. Their contacts occurred while Respondent was on duty as a correctional officer. In a conversation that took place between Respondent and Mr. Richardson in a recreation room within the prison, Respondent told Mr. Richardson that she was "having a problem moving." Mr. Richardson responded by offering to give Respondent money. At first Respondent declined the offer. A week to two weeks later after Mr. Richardson "pushed the issue," Respondent agreed to accept the money. Mr. Richardson had approached Respondent about a dozen times before Respondent was willing to accept the money. Under the terms of their arrangement, Respondent gave Mr. Richardson a post office box address to send the money and a name at that address. The name was Toyia Kelly. In furtherance of the agreement between Mr. Richardson and the Respondent, Mr. Richardson caused a $200 draft from his inmate bank fund to be sent to Toyia Kelly on June 8, 1994, at the address Respondent had provided . After Mr. Richardson sent the $200, he asked Respondent if Respondent had received the money. She answered "no." This conversation took place within the institution where Mr. Richardson was housed. When Respondent told Mr. Richardson she did not receive the $200, Mr. Richardson told Respondent that he would send more money. Mr. Richardson did send more money, but this time he sent the money to a different post office box than before. Respondent had provided Mr. Richardson the new post office box address. On June 24, 1994, Mr. Richardson withdrew $150 by draft from his inmate bank fund and paid it to the order of Toyia Kelly at the new post office box address. Mr. Richardson did not confirm with Respondent whether Respondent had received this $150 that had been paid directly to Toyia Kelly. Of his own volition Mr. Richardson determined to send an additional $150 by a draft from his inmate bank fund. Again this was paid to the order of Toyia Kelly at the second post office box address that had been provided by Respondent. This draft was made on July 11, 1994. On this occasion Mr. Richardson asked Respondent if she had received the second $150 draft. In response Respondent nodded her head in the affirmative.
Recommendation Upon consideration the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered which revokes Respondent's correctional certificate number 94299. DONE AND ENTERED this 18th day of November, 1997, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 18th day of November, 1997. COPIES FURNISHED: Karen D. Simmons, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Sandra Griffin 2852 Wayne Drive Lake City, Florida 32055 A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue in this case is whether, in deciding to award a contract for comprehensive re-entry services to be provided at the Baker Re-Entry Center (”Baker”), Respondent, Department of Corrections (the “Department” or “DOC”), acted contrary to one or more governing statutes, rules, policies, or procurement specifications, or any combination thereof; and if so, for each such instance, whether the misstep was clearly erroneous, arbitrary, capricious, or contrary to competition.
Findings Of Fact In 2014, the Florida Legislature authorized DOC to open two 432-bed substance abuse treatment, transition and vocational training centers (“Re-Entry Centers”) by way of the 2014-2015 General Appropriations Act. The Department was also authorized, pursuant thereto, to issue a competitive solicitation for comprehensive program services for the inmates at the Re-Entry Centers. On June 10, 2014, the Department issued the ITN entitled, “Comprehensive Re-Entry Services at Everglades and Baker Re-Entry Centers.” The stated purpose of the ITN was to select “qualified vendors to provide comprehensive criminal justice re-entry services which include substance abuse services, academic programs, vocational programs, case management, chaplaincy and other program services to a medium to high-risk inmate population” at the Baker and Everglades Re-Entry Centers. On July 10, 2014, DOC issued Addendum #1 to the ITN which made changes to the original specifications in the ITN in response to some vendor inquiries. For example, in response to a vendor inquiry about the mental health classifications of inmates, the following information was contained in the Addendum: Question #77: Will there be any inmates placed at the Everglades or Baker Re-Entry Centers with mental health psych grades? If so, is there going to be any mental health personnel on-site at either facility? Answer #77: The Department will house Psych Grade 1*, 2*, at the Baker Re-Entry Center and 1*, 2*, and 3* at the Everglades Re-Entry Center, however 3*s will be housed on a limited basis. Mental Health Services will be provided by Corizon, Inc. at Baker Re- Entry Center and [by] Wexford Health Sources at Everglades Re-Entry Center. These services, which will be under the direction of a licensed psychologist, may be provided on site, or at the parent institution. The Department utilizes a 1-to-5 scale to measure the level of mental illness an inmate is demonstrating to determine what kind of personnel is necessary to manage the inmate. Psych grade 3 (called “S3”) is the highest grade of mental illness where the inmate does not have to be separated from the general population. S3 inmates are generally those who have been prescribed psychotropic medications. On or about July 23, Replies to the ITN were submitted by Bridges; UPI; Geo Re-Entry Services, LLC; The Transition House; and Westcare Gulfcoast Florida, Inc., for the Baker contract. Bridges and Geo also submitted Replies to the Everglades ITN. The Department designated Kelly Wright as the procurement manager for this ITN. Ms. Wright opened all the timely-filed Replies to the ITN. She determined whether each Reply contained the “Mandatory Documentations” identified in section 4.22.2 of the ITN, e.g., the information cost sheet, price sheet, and attestations. She then forwarded the Replies to a group of five “evaluators” for further review. Each of the evaluators was experienced in the review process. They were provided a manual and training by Ms. Wright to help focus their reviews of the Replies. The evaluators individually scored each Reply using the scoring criteria set forth in revised Attachment 7 of the ITN. As they reviewed the Replies, some of the evaluators also prepared negotiation topic sheets for use during the upcoming negotiation phase. Upon completion of their review, the evaluators scored the Replies as follows: UPI – 940.06 Bridges – 846.00 Geo – 805.80 Westcare – 710.38 Transition – 700.83 The scores were presented to Ms. Wright, who forwarded them to Patrick Mahoney, DOC’s bureau chief of Transition and Substance Abuse Treatment Services. Mr. Mahoney served as the lead negotiator in this ITN process as well. He reviewed the scores and decided the Department would only negotiate with UPI due to that vendor’s substantially higher score than its competitors. The Department then scheduled a negotiation session with UPI. In addition to Mahoney, two other negotiators (James Freeman and Dan Eberlein, both of whom had served as evaluators) took part in the process. The negotiation session with UPI was held on August 15. Thereafter, DOC was satisfied that UPI’s proposal met the Department’s needs and decided to close the negotiation process. The Department was ready to award a contract to UPI for the Baker Re-Entry Center. Meanwhile, on or about August 20, a newspaper article was published in the Miami Herald which discussed possible inmate populations at Baker and Everglades. The article seemed to infer that all inmates at the Re-Entry Centers would be inmates with significant mental health issues. When DOC personnel reviewed the Miami Herald article, the Department’s initial perception was that the mental health issue may substantially affect the ITN as posted. The Department decided to reopen the negotiation process for both Baker and Everglades to address any possible changes to the ITN caused by the change in inmate population. This time, the Department also invited Bridges and Geo to negotiate regarding the Baker contract. A telephonic negotiation session was noticed and then held on September 4 between the Department and each of three vendors: Bridges, UPI, and Geo. The negotiation session for Bridges was opened by Kelly Wright who stated, “This is . . . a negotiation meeting for comprehensive re-entry services at Everglades and Baker Re-Entry Centers.” Bridges (represented at the session by its CEO, Lori Constantino-Brown), was asked if it had a plan to handle S3 inmates and Bridges replied in the affirmative. Bridges’ representative was specifically asked whether her responses would be any different for Baker than for Everglades (because Everglades already contemplated the presence of S3 inmates). She replied in the negative, saying “The approaches would be the same on both facilities in terms of the types of programs we would be using. The way that we would staff pretty much is exactly the same, I think, maybe give or take one position. I mean, there are I would say about 95, 99 percent similar, you know, except, you know, where the RFP kind of dictated something different.” When the Department further inquired whether Bridges had anything to add separately for Baker, the representative replied, “No.” And once again when the Department asked Bridges if there were any “additional issues or anything you would like to tell us,” Bridges replied, “No.” Bridges had every opportunity at the negotiation session to provide information or ask questions about the Baker Re-Entry Center proposal. On September 5, the Department issued its Requests for Best and Final Offer (RBAFO) to UPI and Bridges concerning their interest in offering contracts for the Baker center. A RBAFO is only sent to vendors the Department believes can adequately and efficiently meet the requirements of the ITN. Bridges would not have been part of the RBAFO process but for the negotiation having been reopened. Each vendor submitted their Best and Final Offer (BAFO) on September 11. After review of the BAFOs from the vendors, the Department chose to award the contract to UPI. Bridges timely filed a formal written protest and petition for formal administrative hearing, resulting in the instant proceeding. The BAFOs were independently reviewed by each of the negotiators. They used the selection criteria set forth in the ITN, specifically: Experience in similar delivery of criminal justice services; Staffing quality and schedules; Quality and flexibility of Programming; and Cost. The negotiators unanimously decided that UPI’s proposal best satisfied the selection criteria. During their reviews, the negotiators did not specifically refer back to the vendors’ Replies to the ITN. However, the two negotiators who had also been evaluators were already familiar with the information in the Replies and considered that information as part of their evaluation review. Mahoney, who had not initially evaluated the Replies, reviewed the ITN Replies during the negotiation process. Although Bridges did not specifically direct the negotiators to review its ITN Reply, the ITN Reply had nonetheless been reviewed. By way of example, the negotiators found that Bridges’ value-added services were the same in its Reply and its BAFO, a clear indication that both were considered. The process for this particular ITN admittedly had some unusual but unforeseeable issues. Normally, once the Department has decided which vendors to negotiate with, it will close the process from further review. And that did in fact occur in this case. However, the publication of the article in the Miami Herald caused an anomalous blip in procedures. Personnel within the Department at first believed that the article was correct, i.e., that all inmates to be processed through the Baker and Everglades Re-Entry Centers would be suffering from significant mental illness. If so, that would be considered a “game changer” for the ITN, requiring amendment or rescission of the ITN. The article was not entirely correct. In fact, while there would be inmates at each of the centers with some level of mental illness, those would be limited to no more than 50 of the 432 inmates at Baker. The Everglades contract already presupposed some level S3 inmates, those with psychiatric levels which might require psychotropic medications. The only change to the ITN after the newspaper article was that Baker might also house some level S3 inmates. At any rate, the Department decided to reopen negotiations in order to allow the interested vendors to address the S3 inmate issue. Bridges was included in the reopened negotiations although it had been excluded from the prior negotiations. The Department had already deemed UPI the most qualified vendor, but decided that if Bridges could address the S3 situation better, it might warrant further review. The Department also had further negotiation sessions with UPI for Baker and Everglades on September 4. The same question--almost verbatim--was asked of UPI that had been asked of Bridges, i.e., how do you intend to handle the S3 inmates? UPI’s response was more in depth than Bridges response, even though both vendors essentially said their proposals as submitted would cover the S3 inmates. Bridges’ claim that it was not aware the Baker contract would be discussed at the September 4 negotiation meeting is not credible; the email sent to Ms. Constantino-Brown is entitled, “Bridges of America, Inc. Negotiations for Comprehensive Re- Entry Services at Everglades and Baker Re-Entry Centers.” While Ms. Constantino-Brown may have interpreted the email to address only the Everglades contract and that a session for Baker would follow, her interpretation was mistaken. That is borne out by the statements made during the session by Department representatives as set forth above. As a result of the negotiation session, the Department requested BAFOs from both UPI and Bridges for the Baker facility contract. Both vendors timely submitted their BAFO for consideration by the Department. As stated previously, the Department selected UPI’s proposal to the exclusion of Bridges. Bridges asserts it was not given the same opportunity as the other vendor to discuss core issues within its Reply and BAFO, e.g., unit management. Again, the evidence does not support Bridges’ contention. Bridges suggests that the addition of the S3 inmates at the Baker Re-Entry Center substantially altered the substance of the ITN. That contention is not supported by the evidence. In fact, Bridges specifically stated that its proposal for Everglades (which already had S3 inmates) was essentially the same as its Baker proposal. The totality of the evidence suggests that Bridges may have operated under a false assumption concerning the negotiation session, but its mistake does not void the Department’s actions.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Corrections upholding its award of the contract for services at the Baker Re-Entry Center to Unlimited Path of Central Florida, Inc. DONE AND ENTERED this 31st day of December, 2014, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 2014. COPIES FURNISHED: Jonathan P. Sanford, Esquire Department of Corrections 501 South Calhoun Street Tallahassee, Florida 32399-2500 (eServed) Amy W. Schrader, Esquire GrayRobinson, P.A. 301 South Bronough Street, Suite 600 Tallahassee, Florida 32302-3189 (eServed) Jodi Nicole Cohen, Esquire Panza, Maurer and Maynard, P.A. 3600 North Federal Highway, Third Floor Fort Lauderdale, Florida 33308 (eServed) Timothy Cannon, Interim Secretary Department of Corrections 501 South Calhoun Street Tallahassee, Florida 32399-2500 (eServed) Jennifer Parker, General Counsel Department of Corrections 501 South Calhoun Street Tallahassee, Florida 32399-2500 (eServed)
The Issue The issue for consideration in this case is whether Respondent's certification as a corrections officer in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the allegations herein, Respondent was certified as a corrections officer under Certificate No. 502-5580. The Criminal Justice Standards and Training Commission is the agency in this state responsible for the certification and regulation of the conduct corrections and law enforcement officers in Florida. On June 24, 1992, at approximately 11:45 PM, Officer Bryant K. Doyle, a four and a half year veteran of the Orlando Police Department, came across Respondent sitting in his car in a warehouse district near the 400 block of West Grant Street in Orlando. He called for backup by another unit, but before that unit arrived, the Respondent's vehicle, in which Respondent was accompanied a female, came toward him. Doyle stopped and approached the vehicle and at that time recognized Respondent from a prior contact which had occurred several months earlier. At that time, Doyle had come across Respondent in a car late at night in the same general area, again accompanied by a female. At that time, Respondent claimed he was a janitor but also showed Doyle a corrections officer certification card. On the second occasion, because Respondent had no identification with him, Doyle ran a routine identification check and found no prior arrest record. Though he did not know the person with Respondent, he claims Respondent implied she was a prostitute. She has an arrest record in Orange County, Florida but no evidence was produced as to what the arrests were for. Doyle asked the woman to step out of the car and, taking her behind the car, questioned her. Doyle claims she indicated Respondent had picked her up and had paid her $10.00 to fondle herself. She identified herself as Ms. McKie, who resided on Michael Avenue in Orlando. Doyle contends the interview of Ms. McKie lasted for four or five minutes. Officer Doyle then called in the information he had received from Ms. McKie and placed Respondent under arrest for solicitation of prostitution. On each occasion, at the scene, according to Doyle, Respondent cried and said he was sorry, but at no time did he deny her version of the story. There is no evidence, however, that he was made aware of it. Petitioner was unable to present the testimony of Ms. McKie. A subpoena issued to procure her presence at the hearing could not be served on her because the address given for her turned out to be a vacant lot. Ms. McKie had not been deposed previously, and, therefore, her testimony was not available. Respondent, testifying in his own behalf, indicated on the first incident described by Doyle, he had been visiting his brother, who resides in a Department of Health and Rehabilitative Services sponsored group home for the mentally disabled, the Golden Age Retirement Home, in the general area near where he was stopped by Doyle. Respondent is his brother's guardian, and on the night of that first alleged incident, had been visiting him somewhat late in the evening. During that visit, his brother introduced him to his girlfriend, whom he identified as Ms. McKay, and asked Respondent to take her to the store to pick up some items for him. After leaving the local convenience store where she purchased some snack items, on the way back she got sick and Respondent pulled over to the side of the road to allow her to relieve herself. While he was sitting there, with the auto engine running, Doyle arrived and directed him to get out of the car. When he complied, Doyle questioned him and in response, Respondent indicated he was a janitor and a corrections officer. At this time, he claims, Doyle accused him of prostitution, though Respondent denied it. Though he did not arrest Respondent, Doyle allegedly told him at that time to stay out of the area in the future even though Respondent claimed to have a lot of relatives living there. Throughout this interview, Respondent claims, Doyle was hostile and threatening. On June 24, 1992, Respondent, who was working the 6:30 AM to 2:30 PM shift, again visited his brother late in the evening. His visit was late because, after getting off work, he had to have some car repair work done and then took his wife to dinner. By the time they got back and he was ready to go, it was after 10:00 PM. However, because, he had to get his brother to sign some papers for the Social Security Administration, he decided to go even though it was late, and since his wife did not care to accompany him, he went by himself. On the way there, he saw a female walking on the street whom he recognized as a woman named Sally (McKie). He had known her for several years as a friend of his sister, but no idea she had an arrest record as a prostitute. Ms. McKie apparently walked out in front of his car and he stopped. He told her he was going to visit his brother, but if her destination was anywhere near his, he would give her a ride. She accepted. On the way, Ms. McKie indicated she was having some problems and began to get upset. She directed him into the warehouse area as a shortcut, but, for some reason, he claimed instinct, Respondent decided not to take it, turned around, and went back the way he had come. As he did so, however, he met Officer Doyle who stopped him and asked him for his driver's license which he did not have with him. According to Respondent, Doyle had Ms. McKie get out of the car and go with him to the rear where, for a period which Respondent estimates as approximately thirty minutes he allegedly threatened her with arrest if she did not admit she was engaged in prostitution at Respondent's solicitation. Respondent admits he did not hear the entire conversation and did not observe Doyle in his relationship with Ms. McKie, but he recalls the nature of the conversation. After speaking with McKie, Doyle came back to Respondent, had him get out of the car, and arrested him. Respondent was not prosecuted on the charge for which he was arrested. A Nol Prosequi Order dated October 13, 1992 so indicates. Even though Respondent notified his agency of his arrest, no action was taken against him by his supervisors. His appraisal report, dated June, 1993, for the preceding year which included the time of the incident in question reflects he exceeded standards, receiving 38 out of a possible 44 rating points. In that report he is described as an individual who can be depended upon to get the job done; who takes the initiative to insure those working for him have the requisite tools to do their job; accepts additional duties and puts every effort into accomplishing a task; works well with others; and can be depended upon to be there when needed. His three prior performance appraisal records, covering the period from January, 1989 through January, 1992, also reflect ratings of either "exceeds standards" or "outstanding." Respondent's supervisor, Sergeant Lacienski, and a fellow corrections officer and sometime subordinate, Officer Charette, both indicate Respondent has a good record and reputation within the corrections community for truth and veracity. According to Lacienski, even though Respondent's arrest was known within the correctional community, no one indicated any reluctance to work with him for that reason. This opinion is shared by Officer Charette, who asserts that Respondent's arrest for this incident had no effect on his work, and his effectiveness has not been diminished. Respondent has worked with the Orange County Department of Corrections for more than eleven years, achieving the rank of corporal. While serving as a corrections officer over that period, he has, at various times, held various part time jobs such as security officer, psychic technician, nurse's aide, and, for a period, janitor with Duncan Janitorial Service. He has never received any type of disciplinary action during his corrections career.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered dismissing the Administrative Complaint against the Respondent, John H. Girtman. RECOMMENDED this 13th day of December, 1993, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of December, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3299 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. FOR THE PETITIONER: 1. - 15. Accepted and incorporated herein. Rejected as hearsay evidence not properly corroborated by other admissible evidence of record. & 18. Accepted and incorporated herein. FOR THE RESPONDENT: 1. - 3. Accepted and incorporated herein. 4. - 6. Accepted. 7. - 12. Accepted. 13. - 15. Accepted and incorporated herein. 16. & 17. Accepted. 18. & 19. Accepted. Accepted. & 22. Accepted. COPIES FURNISHED: Steven O. Brady, Esquire Florida Department of Law Enforcement 400 West Robinson Street, N-209 Orlando, Florida 32801 Joan Stewart, Esquire 300 East Brevard Street Tallahassee, Florida 32301 A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue Whether Respondent, Casselberry ALF, Inc., d/b/a Eastbrooke Gardens, violated Section 400.28(1)(a), Florida Statutes, and Rule 58A-5.0182, Florida Administrative Code, as cited in the four AHCA Administrative Complaints, based on four consecutive AHCA surveys of Respondent's assisted living facility (ALF), alleging failure to provide care and services appropriate to the needs of its residents. Whether the facts alleged constitute Class I or Class II deficiencies. Whether, if found guilty, a civil penalty in any amount or the imposition of a moratorium is warranted pursuant to the cited statutes.
Findings Of Fact Petitioner is the State of Florida, Agency for Health Care Administration. Petitioner is responsible for licensing and regulating adult living facilities pursuant to Section 400.401 et seq., Florida Statutes, and Chapter 58A-5, Florida Administrative Code. Respondent is Casselberry ALF, Inc., d/b/a Eastbrooke Gardens, an assisted living facility located at 201 North Sunset Drive, Casselberry, Florida, which is licensed and regulated pursuant to Section 400.401 et seq., Florida Statutes, and Chapter 58A-5, Florida Administrative Code. On June 1, 2001, Petitioner's employee, Vilma Pellot, whose duties include surveying ALFs for compliance with licensure statutes and rules, conducted a survey of Respondent's facility based on an abuse complaint received by Petitioner. That same day, Pellot discussed her findings with the facility administrator, and later prepared AHCA form 3020. In her report, Pellot found that the facility was not in compliance with Rule 58A-5.0182, Florida Administrative Code, which states, in pertinent part: Resident Care Standards. An assisted living facility shall provide care and services appropriate to the needs of residents accepted for admission to the facility. Pellot determined that the standard was not met because "the facility failed to take proactive measures to prevent patient to patient abuse and to minimize potential for falls resulting in injuries." The deficiency was classified as a Class II deficiency and a prospective $2,500 fine was imposed. At hearing, Petitioner did not produce the records that Pellot reviewed, nor did it present the testimony of any of the people with whom Pellot spoke. Other than Pellot's direct observations of the residents' bruises and dressings, the only other direct evidence offered by Petitioner regarding the June 1, 2001 survey was the AHCA form 3020, which Petitioner acknowledged was not being entered for proof of the facts stated therein. Pellot did not print or send the AHCA form 3020 to the facility and she does not know if the facility received the form 3020 when she made a subsequent visit to the facility. On July 16, 2001, Pellot conducted a follow-up visit to Petitioner's facility. She again observed residents with bruises or dressings and reviewed their records. She also observed two residents sleeping in the wrong beds. In addition, Pellot determined that based on an interview and incident reports review, the facility failed to submit to Petitioner a preliminary report of all adverse incidents within one business day after occurrence. Pellot discussed her findings with the new administrator and concluded that there was still patient wandering, resulting in injury, and patient-to-patient abuse. Following her visit, Pellot drafted another AHCA form 3020, finding a continued violation of Rule 58A-5.0182, Florida Administrative Code. The continued deficiencies of June 1, 2001, were upgraded to Class I and a prospective fine of $5,000 imposed. In addition, a Class III deficiency was found for the failure to report adverse incidents within one day. At hearing Petitioner did not introduce the records that Pellot reviewed on her second visit, nor did it present the testimony of any of the people with whom Pellot spoke. Other than Pellot's direct observations of the residents' bruises and dressings and her observation that two residents were in the wrong beds, the only other direct evidence offered by Petitioner regarding the July 17, 2001 survey was the AHCA form 3020, which contained hearsay statements. In regard to the Class III deficiency for failure to report adverse incidents within one day, there was no testimony or records presented by Petitioner to support the allegation set forth in the AHCA form 3020, dated July 16, 2001. Petitioner acknowledged, in its Order of Immediate Moratorium, that an incident report had been submitted regarding a kicking incident involving Resident number 6. Other incidents noted in the AHCA form 3020 did not require incident reports because they did not meet the definition of "major incident" as defined by rule. Following the surveys on June 1, 2001, and July 17, 2001, Petitioner made an administrative determination that "conditions in the facility present an immediate or direct threat to the health, safety or welfare of the residents . . ." and issued an Order of Immediate Moratorium against Respondent's ALF. Respondent was not permitted to admit any new residents until the moratorium was lifted. On August 8, 2001, another follow-up survey to the ALF was made, and Pellot observed bruises on residents and one resident wandering into another resident's room. Another AHCA form 3020 was prepared finding a continued violation of the rule. The continued deficiencies of June 16, 2001, were classified as Class I and a prospective fine of $5,000 imposed. In addition, a Class III extended congregate care (ECC) deficiency was found for the alleged violation of not admitting a resident who required ECC services, total help with activities of daily living (ADL), or discharging her. At hearing, Petitioner did not produce the records reviewed by Pellot, nor did it present any of the people with whom she allegedly spoke. Other than Pellot's direct observations of the residents' bruises and dressings and her observation of a resident wandering into another resident's room, the only other direct evidence offered by Petitioner regarding the August 8, 2001 survey was the AHCA form 3020, which contained hearsay statements. On August 17, 2001, another follow-up survey of the ALF was conducted, and bruises on residents were observed and a band-aid was seen on one resident. Another AHCA form 3020 was prepared, finding a continued violation of the rules. The continued deficiencies were classified as Class I and a prospective fine of $5,000 imposed. In addition, the Class III ECC deficiency previously determined in the August 8, 2001 survey was found to have been corrected. At hearing, Petitioner did not produce the records reviewed by Pellot, nor did it present any of the people with whom she spoke. Other than Pellot's direct observations of the residents' bruises and dressings, the only other direct evidence offered by Petitioner regarding the August 17, 2001 survey was the AHCA form 3020, which contained hearsay statements. Pellot returned to the facility on September 27, 2001, for a monitoring visit and on September 28, 2001, for a follow- up survey. At that time she concluded that the alleged deficiencies had been corrected and recommended that the moratorium be lifted. Petitioner recognizes that ALF residents do fall. The rule does not require that a facility be "fall free." There is no rule or regulation concerning falls, and there are no guidelines set forth in AHCA complaint investigation guidelines. Lois Bosworth, a certified gerontological nurse, is Director of Operations for Homestead Health Management Group which operates Respondent's ALF. Homestead Health Management Group operates nine ALFs in Florida, all of which have ECC licenses. ECC stands for Extended Congregate Care which is a higher level of care than a standard ALF license. All of Respondent's ALF residents are memory impaired to some extent. Most are in their 60s or older, some have early Alzheimer's, others have dementia for other reasons. Because they suffer from dementia, the residents' physical abilities are declining. Some are not ambulatory and use wheelchairs, some are able to use walkers to some degree, most can still feed themselves. In the evening, ALF residents with dementia have to be cued over and over to perform the activities of daily living (ADLs) more often than in the daytime because while they're up during the day, they become very tired and their processes decline. Some residents have the same levels all day, but over the course of weeks, to months, to years, they will decline, needing more hands-on personal services as their disease progresses. ECC has established criteria and retention criteria which Respondent is required to follow. With the dementia clients, it is gauged on their ability to transfer with minimal assistance. They may need help becoming steady because sitting for any length of time makes them unsteady or off balance when they first stand up. Retention criteria is also based on how much cuing a resident needs in feeding themselves. With Alzheimer's patients, it is typical that feeding is one of the last of the physical needs that they can do themselves. When residents are no longer able to ambulate or feed themselves, they are more prone to physical ailments that require nursing home care. If there is a question concerning appropriate placement, Respondent will have the Department of Children and Family Services (DCF) CARES team become involved. The CARES team consists of nurses that make the official determination of the appropriate level of care required for a resident. Many times it is necessary to involve the CARES team because the family is reluctant to have their loved one transferred from the ALF to a nursing home. In a facility such as Respondent's where there are many residents with dementia, it is not unusual for the residents to get into confrontations with one another. Often they will shout at each other before they touch each other. Alzheimer residents will sit next to each other touching each other, shoulder to shoulder, knee to knee. They'll even hold hands walking down the hallway. There are other times they need to have the comfort of someone touching them. But they have periods of time when they don't want people touching them at all and for no apparent reason. Of the residents identified in the June 6, 2001 survey, Resident number 1 was ambulatory. She would wander at night time up until midnight before she would settle down and go to sleep. This is typical Alzheimer's type activity. She was a lady who had very large bags under her eyes constituting soft tissue which can continue to bleed from a bruising into both eyes. Such an injury is typical of people with glasses, or people who get hit over the bridge of the nose, making it quite common to have two black eyes with one injury. A small bruise over the eye one day may be extremely massive the next because there will be continued leaking of blood under the skin and the tissues that cause the bruise. This resident was allegedly struck by another resident who was not known to be aggressive, but did not recognize people all the time. One of the defenses that Alzheimer's people have, if they can't process the thought and recognize someone, is to make someone the bad person because they don't remember what happened. Often they will respond verbally ordering the person to go away, even though the person may be a roommate. In the earlier stages of Alzheimer's, a person may recognize that he or she is forgetting things and have a tendency on some occasions to be more resistant, not necessarily aggressive. The resident who allegedly struck Resident number 1 was not known to be aggressive to other residents, even after this alleged incident. The alleged incident could not have been foreseen. Resident number 2 in the June 1, 2001 survey was receiving therapy for her falls. There was a recommendation that a different wheelchair with a seat which slightly tilts back be tried. After the June 1, 2001 survey, this resident was placed in a nursing home which could use restraints in a wheelchair. Resident number 5 in the June 1, 2001 survey would sit on the side of the bed to put her slippers on. She would pitch forward because she was short and the bed was too tall for her to sit on. Her mattress was placed on the floor to alleviate the problem which was resolved. Resident number 5 had a tendency to bruise easily. It was determined that she had a bleeding disorder, so that even a slight bump would cause her skin to bruise. She continued to have skin tears and bruising following June 1, 2001, which required her to go to the emergency room. When she returned her skin tear had not healed and she had very massive bruising from use of an IV in the emergency room. The patient eventually went back to the hospital and did not return to the facility. Resident number 4 in the June 1, 2001 survey was the resident who allegedly had an altercation with Resident number 1. She had no other problems such as this. Resident number 4 apparently alleged that Resident number 1 came into her room and grabbed her arm. Then she hit that resident for coming into her room, to defend herself. This is the only event that occurred with this resident. A person with dementia is usually not credible. It is not uncommon for people with dementia to blame something that happened to them on someone else. Due to memory impairment, they do not want people to think that something is wrong with them, so they blame someone else for something that happened to them. The material available, publications and educational offerings for Alzheimer's encourage allowances for wandering for Alzheimer's clients, because it is part of the disease process and part of their need. They are not able to sit quietly; in fact, the literature states that it's important that they be permitted to wander. At Respondent's ALF wandering is allowed throughout the facility, which is open. Respondent is barrier- free to permit the wandering, allowing a resident to pace up and down the hallways or common areas. The option to participate in activities is always the right of the resident. Alzheimer's clients can't always make that decision, and so they're encouraged to participate in activities to keep them distracted to a degree. They cannot be forced to participate if they choose to continue to walk up and down the halls. Respondent tries various techniques to deter wandering into the wrong room, from posting photographs on residents' doors to decorating rooms with personal items. Respondent tries hard to keep the residents in common areas when they wander and tries to keep doors to residents' rooms closed. But wandering is still a problem with Alzheimer's residents. There are no publications on how to prevent falls. Falls can be minimized in number and by the severity of injuries. The facility needs to be able to provide what the resident needs; if that means they need to go barefoot, then they should be allowed to go barefoot without neglect being alleged. While Respondent cannot prevent falls, it tries to minimize them by providing appropriate care and services to meet the residents' needs within the standards set by the state. Respondent has a procedure in place to minimize falls. Fall assessments were done by the therapy department. When someone had a first fall, therapy would do a screening and assessment to see if they had a need for therapy services to increase their functionality of ambulating. The administrative staff would also review the circumstances of the fall to see if it was preventable or non-preventable. The resident would be evaluated to determine if there was a medical condition that had arisen that was contributing to the fall. There would be a general assessment of the different environmental issues as well as clinical issues. The resident would be watched for any possible decline. Resident number 3 in the June 1, 2001 survey is a tall gentleman who walks around with a stuffed dog. He is friendly and takes direction easily. He is not aggressive, and he does not have a tendency to walk into other peoples' rooms. Other than the two residents seen napping in other residents' beds, the incidents cited in the July 16, 2001 survey, which led to the issuance of a repeat citation and a moratorium, consisted of the actions of one resident identified in that survey as Resident number 6. Resident number 6 was a 48-year-old lady who was brought to Respondent by DCF through an emergency placement under a court order to place her in an ALF for supervision of her care needs. She was a younger resident than normal for the facility because she had a diagnosis of Huntington's Chorea, which is a type of dementia which does not progress as quickly as Alzheimer's but strikes adults earlier in life. Respondent has an agreement with DCF which provides for emergency placements for persons who do not need to go into nursing homes, for those with memory impairment, including after-hour placement, and weekend placement. Respondent does not require that DCF bring with them a medical assessment. Regulations allow Respondent to have one completed within 30 days following the emergency placement. Resident number 6 was at a table and another resident reached for her purse. Resident number 6 picked up a cup of coffee that was sitting on the table and threw the coffee on the other resident's lap. The other resident involved was not injured because the coffee served was not hot coffee. Resident number 6 came to the facility in early June 2001. The coffee incident occurred on June 30th and was the first indication that there might be a problem. Respondent did not interpret the action of Resident number 6 to mean that Resident number 6 was going to hurt anyone. Resident number 6 did not come with a history of hurting anyone, and there was no documentation that she had tried to hurt anyone in the past. She calmed down after the incident and didn't seem to be a problem. Resident number 6 was quite settled in and was doing well. This was a DCF placement to see how she did and whether or not she would be able to return home or go to a different living arrangement. On July 11, 2001, the survey indicated that Resident number 6 had an altercation with Resident number 1 over a cigarette lighter and pushed him down and kicked him, requiring him to be admitted to the hospital with a fractured hip. On July 14, 2001, Resident number 6 allegedly grabbed the arm of Resident number 3 who was in her room and created a skin tear to Resident number 3 as she was pulling her down the hall to the nursing station. During the July 16, 2001 survey, Respondent was directed to remove Resident number 6 immediately from the facility. DCF declined to help. Respondent placed Resident number 6 on one-to-one supervision until the next day when DCF refused to remove her. Respondent could not Baker Act Resident number 6 to a mental facility because she did not meet the criteria. Respondent was finally able to get Resident number 6 to agree to a voluntary psychiatric placement. Resident number 4, a 98-year-old female, identified in the August 8, 2001 survey, apparently had been found on the floor of her room in April with no injuries. She appeared to fall because she was trying to dress herself and the blanket got wrapped up in her legs. In June, she fell into the soda machine with no injuries. And then on July 18th and 20th she fell in the evening. Evening is when some Alzheimer's residents have what is called "sundown syndrome," simply meaning that as the sun sets, they have become so tired they've exhausted all their physical resources and will have a decline. Resident number 4 was receiving physical therapy to keep her ambulating at the highest level possible. She reached her highest potential in therapy because she couldn't remember safety factors that she was taught. The purpose of physical therapy was to help Resident number 4 in her ability to ambulate and minimize her falls. The only way to actually prevent her from falling was to restrain her, which is not permitted at an ALF. On August 1st, Resident number 4 aparently stood up from a bench that was in the hallway and literally ran down the hallway, running to the point that a therapist and the nursing assistant could not catch her. Resident number 4 only stopped because she fell forward and hit her nose on the floor. She was in a dementia state, and did not reach her hands out to catch herself. There was no way anyone could have prevented such an accident, especially since Resident number 4 did not take off running all the time and she was under direct supervision when this happened. Resident number 3 in the August 8, 2001 survey, apparently fell in the TV room and the corner of her chin hit the table. While the injury did cause a massive bruise on her chest, there was no way of knowing the fall would occur since the resident did not have a history of falls. Resident number 6 identified in the August 8, 2001 survey, was non-verbal. During the survey she followed the staff and held hands with a staffer. She is a person who was always reaching for someone. She had a habit of patting another resident on the head, but she was not aggressive. She merely liked to touch, kiss, hold hands, or hug people. Respondent tried to keep her hands busy by giving her something to hold but that did not stop her need to touch people. During the surveyor's tour of the facility on August 8, 2001, a resident mistakenly walked up to a room and asked if it was hers. She was redirected before she entered the room. The resident who claimed to be missing glasses and spools of thread has a mild dementia. She was wearing glasses and the facility supplied her with spools of thread when she ran out. Resident number 2, in the August 17, 2001 survey, was totally ambulatory and did not have a history of falling. She was steady but very confused. She was walking to dinner in the dining room in an open area, no barriers, and apparently when she made a step, she stepped on the shoe of her other foot and fell down, striking her head on the piano. She had a tendency when she sat down to constantly shake her leg or cross her legs back and forth. She was in continuous motion, which is not unusual with Alzheimer's type of dementia. Apparently when she first came back from the hospital, she was able to stand up, help herself to bed with some assistance. Through the night she was having more difficulty and returned to the emergency room where they discovered that she in fact had a fractured hip from the fall. Resident number 1, in the August 17, 2001 survey, was approximately 97 years old, very frail and very thin. He had a recent diagnosis of cancer that was a progressive non-Hodgkins type lymphoma. He had good days and he had bad days, as far as his physical health, which is typical of the disease process. He also had confusion from memory impairment disorder that may or may not have been Alzheimer's. There were days when Resident number 1 could walk using a cane, on other days he could walk with a walker, and there were days when he was so tired he used a wheelchair. With his demented state he wasn't always sure which appliance to use for the day and had to be reminded. Resident number 1 was a smoker, so he would go out on the patio frequently. Sometimes he would reach for things and, being frail, would fall. He was in end stage with his cancerous process and one of his goals was to stay out of a nursing home. Resident number 1 did have a series of falls which created skin tears because his skin was very thin, but nothing that was more of a serious nature than that, and he was adamant that he stay at the ALF. He was able to be maintained at Respondent's ALF and did not have any fractures while he was there. Toward the end of his life, he determined that he did not want to be involved with the hospice group that came to visit. He did eventually go to a different level of care. Resident number 3, identified in the August 17, 2001 survey, fell in the shower when she was being assisted in May of 2001. She apparently fell and hit the back of her head on a shower stall, but she was receiving assistance at the time. This was an unusual occurrence, Resident number 3 was not a resident who fell frequently or had a great history of falls. On August 12 the survey notes that she had redness under both her eyes and a cut or scratch on her nose. This was another resident who had very large bags under her eyes and rubbed her eyes frequently. There was no documentation that this resident had received an injury or a fall that would create this redness around her eyes or the yellowish, purplish hematomas. There was no indication that this resident had had a fall and she was not prone to falls. Resident number 6, identified in the August 17, 2001 survey, was a resident who was required to wear shoes because it is considered inappropriate for our elders to walk around barefoot. She would take her shoes off frequently. When she did wear them, she had a difficult time picking her feet up high enough to walk without someone with her. Resident number 6 apparently tripped with no apparent injuries, but later that day her right hand showed bruising and swelling. There was no indication as to the cause of the swelling and an X-ray indicated no fracture. Resident number 6 apparently tripped again while walking, tried to catch herself and held onto a chair; she had a skin tear on her shin. Resident number 6 although ambulatory, would often catch herself from falling. Resident number 4, identified in the August 17, 2001 survey, scratched his arm because he has dry skin. It began bleeding and an aide administered a bandage. There was no need for documentation. The facts alleged in the four surveys at issue do not indicate any conditions or occurrences relating to the operation and maintenance of this facility, or the personal care of the residents which directly threatened the physical or emotional health, safety or security of the facility residents. At no time during any of her surveys that are at issue in this proceeding did Pellot find Respondent's ALF to be short-staffed. The facts alleged in the four surveys at issue do not indicate any conditions or occurrences relating to the operation and maintenance of the facility or the personal care of the residents which would have been an imminent danger to the residents or guests of the facility, or a substantial probability that death or serious physical or emotional harm could result therefrom. Respondent was providing appropriate care for the needs of the residents that were identified in the statements of deficiencies at issue in this proceeding. None of the patients who were involved in these incidents cited in the four surveys had the mental capacity to form a willful intent to harm someone. Nor could the patient's actions be interpreted, under the facts, to be anything more than defensive reactions or touching incidents of persons with mental impairments. The relevant facts showed that Respondent took appropriate steps to address wandering problems and protect residents in its facility. The events surrounding Resident number 6, in the July 16 survey were an anomaly and could not have been foreseen by the staff at the facility. Respondent had a right to rely on the assertion by DCF that Resident number 6 was appropriate for placement in an ALF. The incident with the coffee was not significant enough to precipitate the resident's removal from the facility. When it became apparent that the resident was aggressive at times, Respondent took appropriate steps to have her placed elsewhere. In addition, this isolated incident was not similar to those for which Respondent was cited in the first survey of June 1, 2001. This was a problem created by a particular patient and not incidents of falls or wandering. As such, it should not have triggered a repeat offense nor a moratorium. The evidence produced by Petitioner was primarily hearsay in nature without corroboration. Respondent presented none of the patients, staff or other witness to the incidents referred to, and none of the records referred to or relied on by the surveyor were produced. Under these circumstances, Petitioner failed to meet its burden to produce clear and convincing evidence that Respondent committed the violations alleged in Petitioner's form 3020s, the Administrative Complaints, or the Order of Immediate Moratorium. Respondent's witness was credible and its explanation surrounding each incident was plausible.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order determining that: The deficiencies in the AHCA form 3020s are unfounded and must be withdrawn; The Administrative Complaints be dismissed against Respondent; and The Order of Immediate Moratorium be revoked. DONE AND ENTERED this 3rd day of September, 2002, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Theodore E. Mack, Esquire Powell & Mack 803 North Calhoun Street Tallahassee, Florida 32303 DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of September, 2002. Michael P. Sasso, Esquire Agency for Health Care Administration 525 Mirror Lake Drive, North Suite 310-G St. Petersburg, Florida 33701 Virginia A. Daire, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308 William Roberts, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308
The Issue The issue is whether the correctional officer certification of Steven S. Wright should be revoked or otherwise penalized based on the acts alleged in the Administrative Complaint.
Findings Of Fact Steven S. Wright is a certified correctional officer, having been issued certificate number 43-88-502-05 on December 19, 1988. Mr. Wright was employed as a Correctional Officer I at Lake Correctional Institute in June 1989. On the morning of June 20, 1989, and on other occasions, Mr. Wright had discussed drugs with inmates. He did not encourage or support the use of drugs. He believed these discussions were a useful part of the rehabilitation process. Later on June 20, 1989, Inmate Clinton Gholson approached Mr. Wright in the Food Services area and placed a piece of paper in Mr. Wright's pocket. Mr. Wright was planning to be married in a short time. Gholson had indicated that he and some other inmates wanted to make a wedding present for Wright in Arts and Crafts. Because inmates are generally prohibited from giving gifts to correctional officers, Mr. Wright and Gholson had agreed to a paper work process which was to be followed if Gholson and the others wished to make the gift for Mr. Wright. Authorization was to be sought before Mr. Wright actually received the gift. Gholson was to give Mr. Wright a choice of gifts Gholson could make. Mr. Wright understood that Gholson was to give him a short written list from which to pick. While Mr. Wright was working on June 20, 1989, Gholson approached him from behind and slipped the piece of paper into Mr. Wright's back pocket. Gholson indicated it was the gift list and Mr. Wright was to circle the gift he wanted. Gholson said something like, "You do that and that's what we'll make." Mr. Wright did not look at the note then. He forgot about it and finished his work. When Mr. Wright got home that evening, he discovered the note in his pocket. When he opened it, instead of a gift list, he found $3.00 and a note asking Mr. Wright to smuggle drugs (a "twenty cent piece") into the prison and they would make $240.00 from it. Mr. Wright was scheduled off from work the next two days. He was afraid he would lose his job because of what Gholson had done. When Mr. Wright returned to work on June 23, 1989, he told Sergeant Alexander what had happened. She sent him to Major Collier to make a report. Wright made the report and submitted it. He had forgotten to bring the note and money that day, so he could not attach it to the report. When Mr. Wright returned home that night, the note and money were gone. It was never determined if his wife or his nephew or someone else had thrown it away. Once Gholson knew he had Mr. Wright in a bad position, he used it to his advantage. He began demanding money from Mr. Wright and stated at various times that he had given Mr. Wright $10.00 to buy drugs and that he had loaned Mr. Wright $10.00. Mr. Wright reported these incidents immediately. When Gholson wrote another note demanding $10.00, Mr. Wright immediately turned that note over to Major Collier. A hearsay statement from Gholson in the form of a taped interview was submitted into evidence. It is found that Gholson's statements are so unbelievable as to be unworthy of any credibility. Even if the statements were not hearsay, they would be too unbelievable to form the basis for a finding of fact. Mr. Wright was fired from his job at Lake Correctional Institute as a result of these incidents and Gholson's statements. While there are some insignificant inconsistencies among the various statements and reports given by Mr. Wright, I find that his testimony and account of these events is absolutely credible and worthy of belief. While it is not disputed that Mr. Wright left the correctional institute on June 20, 1989, with a note and $3.00 which Gholson slipped into his pocket, it is affirmatively found that Mr. Wright had unwittingly done so. Mr. Wright had no idea that Gholson had placed money into his pocket until he reached home later that night. Mr. Wright did not knowingly accept money from Gholson.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Criminal Justice Standards and Training Commission enter a Final Order dismissing all charges against Steven S. Wright. RECOMMENDED this 10th day of June, 1991, at Tallahassee, Florida. DIANE K. KIESLING, 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 10th day of June, 1991.
The Issue Whether Petitioner violated section 400.0255, Florida Statutes, by improperly discharging or transferring a resident such that Respondent correctly issued a Statement of Deficiencies against Petitioner.
Findings Of Fact Petitioner is a 36-bed skilled nursing facility located on the campus of Sand Cove Hills, a retirement community in Palm City, Florida. Sand Cove Hills is a continuing care retirement community containing 255 independent living units, 36 skilled nursing units, and 20 assisted living beds. The assisted living beds and skilled nursing units are separately licensed by the Agency. M.M. became a resident of Water's Edge on February 25, 2012, after being referred to the facility from Martin Memorial Hospital for rehabilitation. She was 90 years old. During M.M.'s residency at Water's Edge, Heather Furlong served as the administrator, Martha Legere served as the director of nursing, Dr. Michael Sherman served as the medical director, Althea Armstrong served as a charge nurse, Christine Cerny served as a licensed practical nurse (LPN) who provided direct care to M.M., and Deneas Morris served as a certified nursing assistant (CNA) who also provided direct care to M.M. From March 3, 2012, until March 11, 2012, M.M. was hospitalized and diagnosed with right lower lobe pneumonia. When she arrived at Water's Edge, she was admitted by Dr. Sherman, an internist. Dr. Marie Cambronne was M.M.'s psychiatrist and first saw M.M. on April 10, 2012. She found M.M. to be very agitated and paranoid. Dr. Cambronne diagnosed her as suffering from dementia and psychosis and prescribed Risperdal for paranoia, delusion, and psychosis. Dr. Cambronne believed that an involuntary examination under the Baker Act might be appropriate because M.M. was very territorial, but opted to wait and see if medicine would alleviate the symptoms. On or about April 14, 2012, Nurse Cerny noticed that M.M. was exhibiting troubling behavior. She had periods of paranoia, believing that Water's Edge staff and other residents were trying to hurt her. CNA Morris recalled M.M. being difficult; M.M. hit Ms. Morris on more than one occasion, ate other residents' meals, took other residents' possessions, and argued with other residents. Ms. Morris believed that other residents were afraid of M.M. Nurse Cerny recalled that M.M. was confused, agitated, went into other residents' rooms, changed her clothes often, and would go through her roommate's belongings. M.M. was calmer when her daughter was present, but when alone, would sometimes pack and unpack her own belongings. She had periods of forgetfulness and hallucinations. Water's Edge is not a locked-down unit; therefore, some residents, like M.M., were fitted with a "WanderGuard" to keep them from wandering out of the facility. The WanderGuard is a bracelet which activates an alarm if a resident wearing it attempts to open an exterior door. The door becomes locked for 15 seconds, to allow time for the staff to redirect the resident. M.M. cut off her WanderGuard twice while she resided at Water's Edge. On or about April 30, 2012, M.M. pushed a roommate's wheelchair (while the roommate was seated in the wheelchair) out of their room and into the hallway, and then slammed the door shut. Dr. Sherman ran tests to rule out an organic cause for M.M.'s spiraling psychiatric issues; he found none. On May 1, 2012, Dr. Cambronne once again saw M.M. M.M. explained to Dr. Cambronne that she believed her roommate had fooled around with her husband, which is why she had kicked her roommate out of the room. Dr. Cambronne noted that M.M. was angry, obsessed with her roommate, confused, and paranoid. She prescribed Ativan to calm M.M. down. While she considered initiating a Baker Act transfer, she was informed by the staff that Dr. Sherman was running tests to rule out an organic cause for M.M.'s psychiatric symptoms. On May 2, 2012, Nurse Cerny noted that M.M. was getting more aggravated at night and was wandering into other resident's rooms. The staff began conducting 15-minute safety checks on M.M. On the morning of May 3, 2012, Nurse Cerny noted that M.M. had continued to enter other residents' rooms through the night and had been found wearing her undergarments over her clothes. On May 3, 2012, M.M. left with her daughter to have some lab work done. When M.M. returned to Water's Edge, and her daughter left, M.M. required one-on-one care due to her high level of agitation. Nurse Cerny provided that care. On that same day, Dr. Cambronne received a call from Water's Edge, letting her know that the Ativan was not working, that Dr. Sherman had ruled out any organic cause for the psychiatric symptoms, and that M.M. was becoming increasingly agitated. She was informed that M.M. was continuing to bother the other residents, and, in particular, M.M. was bothering the resident whom she had delusions about. Dr. Cambronne decided to involuntarily commit M.M. to a facility that received Baker Act patients, because the Ativan was not working, and M.M. was terrorizing another resident. Dr. Cambronne was concerned that M.M. was a threat to the other residents. Because Dr. Cambronne was busy at a hospital, she asked Water's Edge staff to bring the Baker Act form to her at the hospital so that she could fill it out. Director of Nursing Legere brought the form to Dr. Cambronne and waited until Dr. Cambronne was able to see her. The Baker Act form was completely filled out by Dr. Cambronne. On the Baker Act form, Dr. Cambronne checked the boxes that indicated the patient was likely to suffer from neglect or would pose a threat to herself by refusing to take care of herself and that there was a substantial likelihood that she would pose a threat. Dr. Cambronne failed to check the next box, which indicated whether that threat was to M.M. or others, but she credibly testified that the threat was to both. Dr. Cambronne wrote the following as her observations: Pt. [sic] is combative with staff [sic] push [sic] other resident on her wheelchair and closed door, entering into other residents room [sic], confused, disorganized, psychotic [sic] not following redirection, exit seeking[.] Martha Lenderman, an expert in the Baker Act, reviewed the Baker Act form and found it deficient because Dr. Cambronne had not personally observed M.M. on the date the form was filled out, the form was not filled out based solely on Dr. Cambronne's observations, and Dr. Cambronne had left a box empty which asked for "other information." Dr. Cambronne explained that she had personally observed M.M.'s obsession with her roommate, her confusion, and her psychosis. Dr. Cambronne had been informed of M.M.'s combativeness with staff and her exit seeking behavior. Since Dr. Cambronne was not providing one-on-one care to M.M., she had to rely on the reports from the staff, coupled with her own observations and diagnosis. The undersigned finds Dr. Cambronne's testimony credible and reasonable; any omissions on the form were harmless. Water's Edge held a bed open for M.M., paid for by M.M.'s family, should she return to the facility that same night, or at any later date. Dr. Sherman was in complete agreement with M.M.'s involuntary commitment, finding it an appropriate course of action. Dr. Cambronne was fairly certain that M.M. would be brought by law enforcement to the St. Lucie Medical Center, which is the hospital where she was working that day, because it is the closest Baker Act facility to Water's Edge. Ms. Lenderman testified that once a Baker Act involuntary examination is initiated, the patient must be taken to a receiving facility or hospital. Law enforcement is the designated authority to transport a patient, and law enforcement has no discretion to ignore the Baker Act order. Ms. Lenderman also testified that, if a Baker Act order is improperly issued, an affected person can file a Petition for Writ of Habeas Corpus to have the individual released from the receiving facility. No evidence was presented indicating that a Petition for a Writ of Habeas Corpus was ever filed in the instant case, or that any disciplinary action was initiated as to Dr. Cambronne's medical license. Water's Edge, having received a Baker Act initiation form from M.M.'s treating psychiatrist, contacted law enforcement for a proper transfer. M.M. was brought by law enforcement to the St. Lucie Medical Center, and Dr. Cambronne treated her there. M.M.'s transfer from Water's Edge to St. Lucie Medical Center was initiated by Dr. Cambronne, and not by Water's Edge. Water's Edge only complied with M.M.'s treating psychiatrist's Baker Act order, arranging transportation without delay. M.M. received 24-hour care at St. Lucie Medical Center and, in Dr. Cambronne's opinion, received good care. During M.M.'s stay at St. Lucie Medical Center, M.M.'s family did not request that M.M. return to Water's Edge. After eight to ten days had passed, M.M.'s family asked Water's Edge to release the bed hold for M.M. M.M. was later moved to another facility and eventually passed away in January of 2013.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration dismiss the Statement of Deficiencies issued to Water’s Edge. DONE AND ENTERED this 24th day of June, 2013, in Tallahassee, Leon County, Florida. S JESSICA E. VARN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of June, 2013.
