Conclusions THE PARTIES resolved all disputed issues and executed a Settlement Agreement. The parties are directed to comply with the terms of the attached Settlement Agreement (Attachment A). Based on the foregoing, this file is CLOSED. DONE AND ORDERED on this 4 Any of (flay, , 2014, in Tallahassee, Florida. Agency for HealthCare Administration Filed February 14, 2014 11:45 AM Division of Administrative Hearings
Findings Of Fact The facility which is the subject of this proceeding is Florida Living Nursing Center, a 104-bed skilled nursing home in Apopka, Seminole County, Florida. The facility is currently constructing a 60-bed nursing home addition and a 60-bed adult congregate living facility (ACLF) addition. The licensee and operator of Florida Living Nursing Center is Sunbelt Health Care Centers, Inc., (SHCC) whose President is Glenn Choban. The facility is leased from the Florida Conference of Seventh Day Adventist. The lease, which includes payments for the current construction, is guaranteed by Adventist Health system/Sunbelt Health Care Corporation (AHS/SHCC), the parent corporation of SHCC. In October of 1988, the Department of Health and Rehabilitative Services (HRS) issued a fixed need pool report showing a need for 19 nursing home beds in Seminole County, Florida. The deadline for applying for a certificate of need (CON) for those beds was November 1988. SHCC decided to apply to convert 19 ACLF beds under construction to nursing home beds, as the beds at Florida Living Nursing Center were already being built to nursing home standards. Prior to filing its letter of intent SHCC learned that it would need to include its own audited financial statements in the application. SHCC's statements are included in the audited financial statement of its parent, AHS/SHCC, and there was insufficient time prior to the application deadline to obtain its own separate statements. In a prior CON batching cycle, SHCC had applied for a 20-bed nursing home conversion at Florida living Nursing Center. The named applicant in that cycle was AHS/SHCC and its wholly owned subsidiary, SHCC. At no time during the course of its review of that application did HRS object that the license holder and CON applicant were not identical. HRS never indicated in that cycle that the applicant could not effectuate the project because it was not the same as the license holder. Adventist Health System/Sunbelt, Inc. (AHS/Sunbelt) is also a wholly owned subsidiary of AHS/SHCC and a sister corporation of SHCC. AHS/Sunbelt operates other health care facilities in Florida, but not nursing homes. AHS/Sunbelt and SHCC both deposit their revenues into a cash pool account where all funds from corporations within AHS/SHCC are deposited. AHS/Sunbelt is the major depositor and has excess funds in the account. Both corporations draw from the account for their expenses, and to the extent that SHCC's funds are insufficient, AHS/Sunbelt's excess funds are applied. The letter of intent for the CON was submitted in November 1988, in the name of AHS/Sunbelt. Attached to the letter of intent was a resolution by AHS/Sunbelt authorizing the application, appointing Glenn Choban, President of SHCC, as agent for the corporation; and authorizing the licensure and operation of the facility by AHS/Sunbelt or SHCC. HRS accepted the letter of intent and cited application deadlines in its letter dated November 9, 1988. Neither HRS' letter nor any other contact by HRS during the review process, including the omissions letter, hinted that there might be a problem with the applicant's identity. The application plainly revealed that management would be provided by SHCC, the applicant's sister corporation. The facilities licensed by SHCC were listed in the application, as required by the application form. Nothing in the application form, nor the statutes, nor any rule of HRS states that the applicant for a CON must, at the time of application, be the licensee of the facility, when that facility already exists. AHS/Sunbelt first learned of HRS' position when it received the State Agency Action Report (SAAR) denying the application. The application had been reviewed and scored, and was found eligible in all respects, except this: ".... the applicant is not the license holder of the facility to which the proposed beds would be added, and as such, Adventist Health system/Sunbelt, Inc., is unable to effectuate the project." (SAAR, Petitioner's Exhibit #9) AHS/Sunbelt was the only applicant in this batching cycle for the 19 nursing home beds identified as needed in Seminole County. HRS interprets the CON and licensing law and rules as requiring the applicant of a CON for an addition to an existing facility to be the licensee of that facility. The statutes permit transfers of CON's but their approval or disapproval is within the authority of the Department, and approval is not automatically granted. HRS' policy regarding transfers was explained by its officials, Amy Jones and Sharon Gordon-Girvin. Transfers of CON's are not favored by HRS as they are considered to thwart the competitive process. Applications for transfers generally undergo expedited review, which is noncompetitive. (But see, Beverly Enterprises - Florida, Inc. d/b/a Beverly Gulf Coast Florida, Inc. v. Department of Health and Rehabilitative Service, 11 FALR 2762, Final Order entered 5/11/89, wherein the statute regarding expedited review was strictly construed to apply to certain transfers only.) The policy discouraging transfers is reflected in the CON application process which favors those applicants which have not transferred a CON in the prior 36 months. In the view of Ms. Gordon-Girvin, transfers can undermine effective health planning because they disrupt the correct matching of the community needs with the best applicant. Facility licenses are not transferred, but a facility may be transferred by sale or lease and the new owners can apply for and receive their own license. Again, HRS must deny or approve the license, and approval is not automatic. According to Amy Jones, changes in ownership can disrupt the continuity of operation and quality of care. Sharon Gordon-Girvin and Amy Jones are experienced HRS staff who have been directly involved in HRS CON and licensing process. They are expert health planners and speak for the agency they represent. Their opinions are accorded substantial weight with regard to the agency policy and its bases. In this unique case, however, the policy is not advanced by denial of the CON to AHS/sunbelt. This was not a competitive batching cycle and no other applicant competed for the 19 beds indisputably needed in Seminole County. The parties stipulated that AHS/Sunbelt, but for its lack of license, would be entitled to the CON. AHS/Sunbelt and SHCC are two separate legal entities with their own separate board of directors. However, each are nonprofit corporations and their relationship to the parent corporation makes them closer than sisters. AHS/SHCC, the parent, and AHS/Sunbelt have the same board of directors and corporate officers and are operated as one business enterprise. AHS/SHCC is the sole member of SHCC and appoints the board of directors of SHCC. The Bylaws of SHCC provide for control by AHS/SHCC over SHCC's operations. AHS/Sunbelt, therefore, also controls SHCC. Under the application at issue, the facility will remain under the management of SHCC, thus a transfer of the CON to SHCC would not disrupt the continuity of care. A health care facility which is required to have a CON may not be licensed until that CON is obtained. If HRS should deny a CON transfer to SHCC, it could not be licensed for the additional 19 beds. However, in this case, the beds are already being built, and denial of a nursing home license at a later date would not mean that a CON was granted to this applicant to the prejudice of another applicant. The health planning process itself is not impacted: The 19 nursing home beds would not be provided whether the CON is denied now or the license is denied later. Just as HRS has distinguished this from other cases involving grants of CONS to non-license holders, this unique case can be distinguished from future cases to avoid the negative impacts on the integrity of the competitive process and valid health planning principles.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That a Final Order be entered by HRS Awarding CON No. 5802 to Adventist Health System/Sunbelt, Inc. for the conversion of 19 ACLF beds at the Florida living Nursing Center to 19 nursing home beds. DONE AND ENTERED this 18th day of September, 1989, in Tallahassee, Leon County, Florida. Mary Clark Hearing Off cer 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 18th day of September, 1989. APPENDIX Case NO. 89-2408 The following constitute rulings on the findings of fact proposed by the parties. PETITIONER'S PROPOSED FINDINGS: 1. Adopted in paragraph 3. 2-3. Adopted in paragraph 5. Adopted in paragraph 4. Rejected as unnecessary. Adopted in paragraph 4. 7-11. Rejected as unnecessary. 12-13 Adopted in paragraph 7. 14. Rejected as unnecessary. 15-16. Incorporated in paragraph 8. Adopted in paragraph 11. Adopted in paragraph 10. Rejected as accumulative. 20-21. Rejected as unnecessary. 22. Included in Conclusion of Law #4. 23-25. Rejected immaterial. 26-27. Adopted in paragraph 9. Adopted in paragraph 2. Adopted in paragraph 6. 30-35. Adopted in paragraph 16. 36-38. Adopted in paragraph 6. Adopted in paragraph 2. Rejected as cumulative. Rejected as unnecessary. Adopted in paragraph 13. Rejected as immaterial. 44-45 Adopted in substance in paragraph 14. 46-61. Rejected as unnecessary. RESPONDENT'S PROPOSED FINDINGS: Addressed in statement of the issues. Adopted in paragraph 10. 3-4. Adopted in substance in paragraph 16. 5. Adopted in paragraph 2. 6-10. Adopted in paragraph 16. 11. Rejected as immaterial. 12-14. Rejected as conclusions of law. Adopted in paragraph 7. Rejected as immaterial. 17-19. Rejected as unnecessary. 20-21. Adopted in substance in paragraph 15. 22. Adopted in paragraph 12. 23-26. Rejected as conclusions of law or unnecessary. Adopted in paragraph 13. Adopted in paragraph 14. COPIES FURNISHED: Stephen K. Boone, Esquire Boone, Boone, Klingbeil, Boone and Robets, P.A. P. O. Box 1596 Venice, Florida 34284-1596 Thomas R. Cooper, Esquire Assistant General Counsel Department of Health and Rehabilitative Services 2727 Mahan Drive - Suite 103 Tallahassee, Florida 32308 Gregory L. Coler, Secretary Dept. of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700 John Miller, General Counsel Dept. of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700
The Issue The issue is whether Petitioner's request for an exemption from disqualification from employment in a position of special trust should be granted.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: This case involves a request by Petitioner, Bobby Jones, for an exemption from disqualification from employment in a position of special trust. If the request is approved, Petitioner would be allowed to return to work as a unit treatment rehabilitation specialist in a unit for developmentally disabled adults at Florida State Hospital (FSH). Respondent, Department of Children and Family Services (DCFS), is the state agency charged with the responsibility of approving or denying such requests. In a preliminary decision entered on an unknown date, a DCFS committee denied the request. Petitioner is now barred from doing such work because of a disqualifying offense which occurred on June 4, 1989. On that date, Petitioner was arrested for the offense of "battery- domestic," a misdemeanor under Section 784.03(1)(a), Florida Statutes (1987). According to Petitioner, the victim in the incident was his former wife. Thus, the offense constituted domestic violence as it subsequently became defined in 1994 by Section 741.28, Florida Statutes. Petitioner entered a plea of guilty to the charge of "battery" on August 10, 1989. He was fined $75.00, and he was placed on probation for a period of "up to 9 months." In addition, the court retained jurisdiction "to [o]rder rest[itution]," and Petitioner was required to complete a mental health counseling program. Petitioner successfully completed all terms of his probation, including the counseling course which lasted around "six to nine months." In October 1989, Petitioner began working at FSH as a human services worker in a unit for developmentally disabled adults. Eventually, he attained the position of unit treatment rehabilitation specialist, a position involving supervision of developmentally disabled adults. Due to a change in the law, in 1996, he was required to undergo a background screening. That screening uncovered his 1989 offense, and on July 14, 1997, he was disqualified from working in a position of special trust with developmentally disabled adults. Petitioner was then offered a temporary assignment effective July 24, 1997, without any "direct care duties." Most recently, however, he has been employed at a Wal-Mart store in Tallahassee, Florida. Because of his desire to return to his former position, he has applied for an exemption from disqualification. Since the disqualifying incident in 1989, Petitioner worked continuously at FSH for almost eight years. Since leaving FSH, he has been steadily employed by Wal-Mart. Petitioner was described by a former supervisor at FSH as being "dependable," "very good" with residents, and someone who got along well with other staff. Three former co-workers echoed these comments. A present co-worker at Wal-Mart also described Petitioner as friendly, helpful, and courteous with customers. Except for the fact that a former wife was the victim, the circumstances surrounding the incident for which the exemption is sought are not of record, and the "harm [if any] caused to the victim" is unknown. Despite the glowing comments of other workers, the adverse testimony of a former supervisor at FSH must be taken into account. In December 1995, she found Petitioner engaged in a verbal confrontation with another worker. She then directed that Petitioner report to her office. On the way to the office, he told her that the other employee was "going to make [Petitioner] put a board on his ass." At the ensuing meeting, Petitioner became extremely upset and told the supervisor that he wished she were dead, that she would get killed in a traffic accident on the way home, and that he would "spit on her grave." Petitioner subsequently received a written reprimand for using "Threatening and/or Abusive Language" towards his supervisor. In another incident that occurred on May 22, 1997, Petitioner was observed by the supervisor "horseplaying with another employee" in the dining room. When told by the supervisor that such conduct was inappropriate for the workplace, Petitioner stated in a loud, hostile manner, in the presence of both co-workers and clients, that he "would choke the motherfucker out." For this conduct, he received another written reprimand for "Threatening and/or Abusive Language," and he was suspended from work for three days. According to the same supervisor, Petitioner has an "explosive" temper, and she would not want him returning to her unit. Given this testimony, it is found that Petitioner has failed to demonstrate by clear and convincing evidence that he will not present a danger if continued employment is allowed. Besides the disqualifying offense, Petitioner has a long string of misdemeanor convictions beginning in 1979 and continuing through 1992. The specific crimes are described in Respondent's Exhibits 1-7 and 9-31 received in evidence. Petitioner himself acknowledged that he has been convicted of passing worthless bank checks approximately thirty times. Most recently, he was convicted for the offense of disorderly conduct in November 1992. In addition, he was convicted for the offense of simple battery on a former wife in October 1990. These convictions, by themselves, are not disqualifying offenses, and many are so old as to be arguably remote and irrelevant. They do, however, establish a continuing pattern of misconduct, especially since Petitioner has at least eight convictions for various misdemeanors since the disqualifying offense in 1989. Given these circumstances, it is found that Petitioner has failed to demonstrate sufficient evidence of rehabilitation since the disqualifying event. This being so, his request for an exemption should be denied.
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 Petitioner's request for an exemption from disqualification for employment in a position of special trust. DONE AND ENTERED this 3rd day of March, 1998, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 3rd day of March, 1998. COPIES FURNISHED: Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Pete Peterson, Esquire Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Ben R. Patterson, Esquire Post Office Box 4289 Tallahassee, Florida 32315-4289 John R. Perry, Esquire Department of Children and Family Services 2639 North Monroe Street, Suite 252A Tallahassee, Florida 32399-2949
Findings Of Fact At all times material to the Administrative Complaint, the Respondent was licensed as a Registered Nurse in the State of Florida, holding License No. RN 1471852. (Admission #2). From May 19, 1980 until April 6, 1988, the Respondent was employed at HCA North Florida Regional Medical Center, Gainesville, Florida. (Admission #4). The Respondent made charting errors or failed to chart as alleged in the Administrative Complaint regarding patients at North Florida Regional Medical Center. This constitutes unprofessional conduct proscribed by Chapter 464, Florida Statutes. See the Respondent's admissions through counsel at hearing. The Respondent saw a counselor at Charter Springs Hospital for an evaluation. Whether the Respondent was a participant in the Impaired Practitioner's program is unclear, and whether this evaluation was part of that program is also unclear. In the preparation for that interview, the Respondent executed two release forms, Michel's Exhibits 1 and 2. These release forms bear the following direction: PROHIBITION ON REDISCLOSURE: THIS INFORMA- TION HAS BEEN DISCLOSED TO YOU FROM RECORDS WHOSE CONFIDENTIALITY IS PROTECTED. ANY FURTHER REDISCLOSURE IS STRICTLY PROHIBITED UNLESS THE PATIENT PROVIDES SPECIFIC WRITTEN CONSENT FOR THE SUBSEQUENT DISCLOSURE OF THIS INFORMATION. Michel's Exhibit 3, an information sheet on the intervention program for nurses, states in pertinent part regarding potential release of information as follows quoting from Section 464.0185(6)(b), Florida Statutes: If, in the opinion of such a consultant after consultation with the provider, an impaired nurse who is enrolled in an approved program has not progressed satisfactorily, then the consultant shall disclose to the department all information in his possession regarding such nurse.... The Petitioner offered no evidence that the Respondent was ever accepted into the program. Respondent's Exhibit 4, a screening form for the impaired nurse program, contains the following question and language: "Immediate reason for applying to the IPN program?" and, "I understand participation in the IPN program will be for at least 2 years from the date of acceptance or beginning of treat- ment." The Petitioner offered no evidence that a consultant ever determined that the Respondent was not "progressing satisfactorily." The Respondent's admission that she was dismissed from the program falls short of proving lack of progress. There was no predicate established for the release of the information, notwithstanding the prohibition against redisclosure. While evidence was presented concerning the failure to chart, there was no evidence of failure to file out those forms required to be annotated when control substances are administered. No evidence was received regarding Respondent's alleged possession of drugs, sale of drugs, and falsification of records.
Recommendation Based upon the foregoing findings of fact and conclusions of law, and considering the length of time since the events and the lack of proof of the other charges, it is RECOMMENDED that the Respondent receive a letter of reprimand. RECOMMENDED this 25th day of July, 1991, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this day of July, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-2087 Petitioner's Proposed Findings of Fact Duplicates paragraph 2. Adopted, as amended. 3-4. Adopted and combined. 5-19. Unnecessary in light of the Respondent's admission that she did not chart professionally in violation of Chapter 464, Florida Statutes. Rejected as contrary to the facts. There was no evidence that the Respondent was accepted into the IPN project for nurses. There is an admission tht she was dismissed from it. However, the grounds and status for dismissal were not established by evidence or admissions. Rejected as not being based upon the evidence presented. 22-24. Unnecessary in light of the Respondent's admission that she did not chart professionally in violation of Chapter 646, Florida Statutes. 25-26. Admitted for the purpose of establishing the reason for the Charter Springs evaluation. Exhibit 5 was excluded upon objection by the Respondent because of the confidential nature of the examination and information developed in it and the limits on the release of this information. In addition, the exact source of the information is uncertain. The information in the report not only came from the Respondent but from other persons at the hospital. Exhibit 5 was excluded upon objection by the Respondent because of the confidential nature of the examination and information developed in it and the limits on the release of this information. In addition, the exact source of the information is uncertain. The information in the report not only came from the Respondent but from other persons at the hospital. Source is "Deposition, page 5"; however, no deposition was ever introduced into the record. See attached copy of the docket sheet and transcript. Exhibit 5 was excluded upon objection by the Respondent because of the confidential nature of the examination and information developed in it and the limits on the release of this information. In addition, the exact source of the information is uncertain. The information in the report not only came from the Respondent but from other persons at the hospital. Adopted as paragraph 2 of this Recommended Order. Irrelevant. 33-35. Unnecessary in light of the Respondent's admission that she did not chart professionally in violation of Chapter 464, Florida Statutes. 36-37. Exhibit 5 and testimony surrounding it was excluded. Admission does not support the proposed factual statement. The testimony does not support the proposed factual statement. The Respondent signed out for drugs for patients at approximately the same time the doctor changed the orders. It is possible that the Respondent had no knowledge of the doctor's orders had changed. 34. (SIC) Appears to duplicate paragraph 34. See comments for paragraph 34 above. COPIES FURNISHED: Judie Ritter, Executive Director Board of Nursing Department of Professional Regulation 504 Daniel Building 111 East Coastline Drive Jacksonville, FL 32202 Jack McRay, Esquire General Counsel Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Tracey S. Hartman, Esquire Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Rodney Smith, Esquire P.O. Box 628 Alachua, FL 32615
Conclusions Having reviewed the four Notices of Intent to Deny Application issued May 13-18, 2010, attached hereto and incorporated herein (Ex. 1, 2, 3, and 4), and all other matters of record, the Agency for Health Care Administration (“Agency”) has entered into a Settlement Agreement (Ex. 5) with the other party to these proceedings, and being otherwise well-advised in the premises, finds and concludes as follows: ORDERED: 1. The attached Settlement Agreement is approved and adopted as part of this Final Order, and the parties are directed to comply with the terms of the Settlement Agreement. 2. The Petitioner shall remit to the Agency, within thirty (30) days of the entry of a Final Order adopting this agreement, an administrative fee in the sum of thirty thousand dollars ($30,000.00) to resolve the Agency's allegations of unlicensed activity, in the interest of expediently resolving these matters and in recognition of the expense and uncertainty of litigation. 3. Checks should be made payable to the “Agency for Health Care Administration.” The check, along with a reference to this case number, should be sent directly to: Filed January 10, 2012 1:47 PM Division of Administrative Hearings Agency for Health Care Administration Office of Finance and Accounting Revenue Management Unit 2727 Mahan Drive, MS# 14 Tallahassee, Florida 32308 4. Unpaid amounts pursuant to this Order will be subject to statutory interest and may be collected by all methods legally available. 5. Any requests for an administrative hearing are withdrawn. The parties shall bear their own costs and attorney’s fees. This matter is closed. DONE and ORDERED this [0 day of ~ Bettie: ; 20/2, in Tallahassee, Leon County, Florida. — Ds we { izabeth Dudek, retary fey ir wacked 0. th€are Administration A PARTY WHO JS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY, ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW OF PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. Copies furnished to: Lance P. Cohen, Esquire Warren J. Bird, Asst. General Counsel Cohen & Thurston, P.A. Office of the General Counsel 1723 Blanding Boulevard, Suite # 102 Agency for Health Care Administration Jacksonville, Florida 32310 2727 Mahan Drive, Bldg #3, MS #3 (U. S. Mail) Tallahassee, Florida 32308 (Interoffice Mail) Jan Mills Agency for Health Care Administration 2727 Mahan Drive, Bldg #3, MS #3 Tallahassee, Florida 32308 (Interoffice Mail) Roger Bell Health Care Clinic Unit Manager Agency for Health Care Administration 2727 Mahan Drive, MS #53 Tallahassee, Florida 32308 (Interoffice Mail) Agency for Health Care Administration Office of Finance and Accounting Revenue Management Unit 2727 Mahan Drive, MS# 14 Tallahassee, Florida 32308 (Interoffice Mail) Suzanne F. Hood Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399 (U.S. Mail) CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of this Final Order was served on the oa above-named person(s) and entities by U.S. Mail, or the method designated, on this the 10 day of aaa » 2012" Agency for Health Care Administration 2727 Mahan Drive, Building #3 Tallahassee, Florida 32308-5403 (850) 412-3630 Certified Article Number , ?bbO 390) Y5778 8971 SEMDERS RECORD i", Certified Article Number (?160 3901 9846 7935 1337 SENDERS RECORD One Nofice $1149/1° CHARLIE CRIST FIORDAAGENCY FOR HEATH CARE ADMINS TRATION Better Health Care for ail Floridians THOMAS W. ARNOLD GOVERNOR SECRETARY May 12, 2010 Physicians Medical Centers - Jax Inc File Number: 8428 1680 Dunn Ave Case #: 2010004935 Ste 39 Jacksonville, FL 32218 F INTENT TO DENY APP TION It Is the decision of this Agency that the application for certificate of exemption from health care clinic licensure for Physicians Medical Centers - Jax Inc, located at 1680 DUNN AVE, STE 39, JACKSONVILLE, FL, 32218, be DENIED. The specific basis for this determination is based on the fact that: Requested information was not complete or timely received by the Agency pursuant to Section 408.806(3)(b), Florida Statutes. You were notified by correspondence dated April 9, 2010 to provide further Information addressing identified apparent errors or omissions within twenty-one days (21) from the receipt of the Agency's correspondence. Our records indicate you received this correspondence by certified mail on April 15, 2010. The outstanding issues remaining are: A copy of the closing documents, stock or similar certificates signed and dated by both the buyer and seller is required, In addition, the Agency received information that the facility does not meet exemption requirements as it is not wholly owned by a Florida licensed health care practitioner, pursuant to Section 400.9905(4)(g). EXPLANATION OF RIGH Pursuant to Section 120.569, F.S., you have the right to request an administrative hearing. In order to obtain a formal proceeding before the Division of Administrative Hearings under Section 120.57(1), F.S., your request for an administrative hearing must conform to the requirements in Section 28-106.201, Florida Administrative Code (F.A.C), and must state the material facts you dispute. SEE ATTACHED ELECTION AND EXPLANATION OF RIGHTS FORMS. ce: Agency Clerk, Mail Stop 3 ; Legal Intake Unit, Mall Stop 3. EXHIBIT 14 Visit AHCA online at http://ahca.myflorida.com 2727 Mahan Drive,MS-53 Tallahassee, Florida 32308 " Certified Article Number , 7260 3901 9648 57748 8995 SENDERS RECORD FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION CHARLIE CRIST THOMAS W. ARNOLD GOVERNOR Better Health Care for all Floridians SECRETARY May 12, 2010 Physicians Medical Centers - Jax Inc File Number: 8430 9826 San Jose Blvd Case #: 2010004881 Jacksonville, FL 32257 .. : NOTICE OF INTENT TO DENY APPLICATION It is the decision of this Agency that the application for certificate of exemption from health care clinic licensure for Physicians Medical Centers - Jax Inc, located at 9826 San Jose Bivd, Jacksonville, FL, 32257, be DENIED. The specific basis for this determination is based on the fact that: Requested information was not complete or timely received by the Agency pursuant to Section 408.806(3)(b), Florida Statutes. You were notified by correspondence dated March 27, 2010 to provide further information addressing identified apparent errors or omissions within twenty- one days (21) from the receipt of the Agency's correspondence. Our records indicate you received this correspondence by certified mail on April 8, 2010, The outstanding issues remaining are: Subpart 1.B, Name-of.Applicant: The name of the applicant must be the corporation or legal entity as it is registered with. the Division of Corporations, it must also match-the FEIN indicated in section 1.C. This subpart was submitted as a response to the omissions, but the. applicant's name indicated does not match the FEIN# listed in section 1.C. of the application. : As this facility did a change of ownership, provide a copy of the closing documents signed and dated by both the buyer (new owner) and seller (previous owner). Acceptable documentation may include any one of the following: Copy of final sale/transfer documents showing date of final transfer and signatures of buyer(s) and seller(s), or a signed, written statement from an attorney, on letterhead, that confirms sale/transfer completion and provides the date of final action. : In addition, the Agency received information that the facility does not meet exemption requirements as it is not wholly owned by a Florida licensed health care practitioner, pursuant to Section 400.9905(4)(g). TION OF HT! Pursuant to Section 120.569, F.S., you have the right to request an administrative hearing, In order to obtain a formal proceeding before -the Division of Administrative Hearings under Section 120,57(1), F.S., your request for an administrative hearing-must conform to the - requirements in Section 28-106.201, Florida Administrative Code (F.A.C), and must state the material facts you dispute. ; : : Visit AHCA online at http://ahca.myflorida,com 2727 Mahan Drive,MS-53 Tallahassee, Florida 32308 EXHIBIT 2 Physicians Medical Centers -. . Inc Page 2 : May 12, 2010 SEE ATTACHED ELECTION AND EXPLANATION OF RIGHTS FORMS. ce: Agency Clerk, Mail Stop 3 Legal Intake Unit, Mail Stop 3 Te thictee-Va thet [9 Number fd60 3901 9848 7495 a2, SENDERS RECORD FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION CHARLIE CRIST THOMAS W. ARNOLD GOVERNOR Better Health Care for all Floridians SECRETARY May 13, 2010 Physicians Medical Centers - Jax Inc File #8427 5960 Beach Blvd : Case #2010004956 Ste3 ; Jacksonville, FL 32207 NOTICE OF INTENT TQ DENY APPLICATION It is the decision of this Agency that the application for certificate of exemption from health care clinic licensure for Physicians Medical Centers - Jax Inc, located at 5960 Beach Bivd., Ste 3, Jacksonville, FL, 32207, be DENIED. The specific basis for this determination is based on the fact that: Requested information was not complete or timely received by the Agency pursuant to Section 408.806(3)(b), Florida Statutes. You were notified by correspondence dated April 7, 2010 to provide further information addressing identified apparent errors or omissions within twenty- one days (21) from the receipt of the Agency's correspondence. Our records indicate you received this correspondence by certified mail on Apri! 9, 2010. The outstanding issues remaining are: As this facility did a change of ownership, provide a copy of the closing documents signed and dated by both the buyer (new owner) and seller (previous owner). Acceptable documentation may include any one of the following: Copy of final sale/transfer documents showing date of final transfer and signatures of buyer(s) and seller(s), or a signed, written statement from an attorney, on letterhéad, that confirms sale/transfer completion and provides the date of final action. ; In addition, the Agency received information that the facility does not meet exemption requirements as it is not wholly owned by a Florida licensed health care practitioner, pursuant to Section 400.9905(4)(g). EXPLANATION OF RIGHTS Pursuant to Section 120.569, F.S., you have the right to request an administrative hearing. In order to obtain a formal proceeding before the Division of Administrative Hearings under Section 120.57(1), F.S., your request for an administrative hearing must conform to the requirements in Section 28-106.201, Florida Administrative Code (F.A.C), and must state the material facts you dispute. EXHIBIT 3 Visit AHCA online at http://ahca.myflorida.com 2727 Mahan Drive,MS-53 Tallahassee, Florida 32308 Physicians Medical Centers - Jax Page 2 May 13, 2010 SEE ATTACHED ELECTION AND EXPLANATION OF RIGHTS FORMS. Health Cae Clinic Unit ce: Agency Clerk, Mail Stop 3 Legal Intake Unit, Mail Stop 3 RTE ecm 3901 94a 7935 yy74 SENDERS RECORD FLORIDA AGENCY TOR HEALTH CARE ADMINISTRATION oe ERNGS Better Health Care for all Floridians THOMAS W. ARNOLD May 18, 2010 CERTIFIED MAIL / RETURN RECEIPT REQUESTED File Number: 8429 Physicians Medical Centers - Jax, Inc 2020 Kingsley Ave Case #: 2010005135 Suite A Orange Park, FL 32073 NOTICE OF INTENT TO DENY APPLICATION It is the decision of this Agency that the application for certificate of exemption from health care clinic licensure for Physicians Medical Centers - Jax Inc, located at 2020 Kingsley Avenue, Suite A, Orange Park, Florida, 32073 be DENIED. The specific basis for this determination is based on the fact that: Requested information was not complete or timely received by the Agency pursuant to Section 408.806(3)(b), Florida Statutes, You were notified by correspondence dated April 9, 2010 to provide further information addressing identified apparent errors or omissions within twenty-one days (21) from the receipt of the Agency’s correspondence, Our records indicate you received this correspondence by certified mail on April 12, 2010, The outstanding issues remaining are: Evidence of Ownership — Information received by the Agency states that Victoria Critzer is the owner of Physicians Medical Centers-Jax Inc. Provide the following documentation as evidence of ownership: * A copy of the final closing documents such as a bill of sale or stock purchase agreement. signed and dated by both the buyer and seller including the effective date sale or transfer. The closing documents should contain the signature of Gordon Garver DC, previous owner of Physicians Medical Center-Jax Inc and Joseph Thomas MD, new owner of Physicians Medical Center-Jax Inc. ¢ A copy of the cancelled and reissued stock certificates transferring shared to Joseph Thomas MD. ¢ Acopy of the lease agreement that includes the name(s) of the owner(s). e Acopy of the business tax receipt that includes the name of the corporation and owner. In addition, the Agency received information indicating that the facility does not meet exemption requirements as it is not wholly owned by a Florida licensed health care practitioner, pursuant to Section 400.9905(4)(g). EXHIBIT 2727 Mahan Drive,MS-53 Tallahassee, Florida 32308 Visit AHCA online at http://ahca.myflorida.com . Physicians Medical Centers - Ja... .nc Page 2 May 18, 2010 EXPLANATION OF RIGHTS Pursuant to Section 120,569, F.S., you have the right to request an administrative hearing. In order to obtain a formal proceeding before the Division of Administrative Hearings under Section 120.57(1), F.S. your request for an administrative hearing must conform to the requirements in Section 28-106.201, Florida Administrative Code (F.A.C), and must state the material facts you dispute. ey SEE ATTACHED ELECTION AND EXPLANATION OF RIGHTS FORMS, For questions regarding this notice, please contact Ruby Schmigel, Health Services & Facilities Consultant with the Health Care Clinic Unit at (850) 412-4413. oger Bgl, Mandger Health Care Clinic Unit ce: Agency Clerk, Mail Stop 3 Legal Intake Unit, Mail Stop 3 STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS PHYSICIANS MEDICAL CENTERS-JAX, INC., Petitioner, DOAH Case Nos. 10-3202, 10-3203, 10-3204 and 10-3205 vs. AHCA CASE Nos.: 2010004881, 2010004956 AGENCY FOR HEALTH CARE 2010004935 and 2010005135, ADMINISTRATION, Respondent. / SETTLEMENT AGREEMENT Respondent, State of Florida, Agency for Health Care Administration (hereinafter the “Agency”), through its undersigned representatives, and Petitioner, Physicians Medical Centers- Jax, Inc. (hereinafter “Petitioner”), pursuant to Section 120.57(4), Florida Statutes, each individually, a “party,” collectively as “parties,” hereby enter into this Settlement Agreement (“Agreement”) and agree as follows: WHEREAS, the Petitioner applied for four certificates of exemption from licensure pursuant to Section 400.9935(6), Florida Statutes and Chapter 59A-33, Florida Administrative Code; and WHEREAS, Victoria Critzer has applied for four initial health care clinic licenses, expressly intending to purchase the interest of Dr. Joseph Thomas in Petitioner upon issuance by the Agency of those licenses; and WHEREAS, the Agency has jurisdiction of the license and exemption applications described in the foregoing paragraphs, by virtue of being the regulatory and licensing authority over the said licenses and exemptions; and EXHIBIT 5 WHEREAS, the Agency served the Petitioner with four Notices of Intent to Deny Application on or about May 13, 2010, notifying the Petitioner of the Agency’s intent to deny the certificates of exemption for the reasons stated thereon, in Agency cases numbered 2010004881, 2010004956, 2010004935 and 2010005135; and WHEREAS, Petitioner timely requested a formal hearing pursuant to Section 120.57(2), Florida Statutes, and in response to said request the matters were forwarded to the Division of Administrative Hearings (DOAH), and were designated as cases numbered 10-3202, 10-3203, 10-3204 and 10-3205 in that tribunal; and subsequently the parties agreed to, and did abate those cases in DOAH, for the purpose of discussing settlement; and WHEREAS, the Agency alleges, and Petitioner denies, that during the period of processing of the aforementioned applications, Petitioner operated one or more unlicensed health care clinics in violation of Florida law as to which no formal administrative, civil or criminal action has thus far been brought; and WHEREAS, the parties have agreed that a fair, efficient, and cost effective resolution of this dispute would avoid the expenditure of substantial sums to litigate the dispute; and WHEREAS, the parties stipulate to the adequacy of consideration exchanged; and WHEREAS, the parties have negotiated in good faith and agreed that the best interest of all the parties will be served by a settlement of these proceedings; and NOW THEREFORE, in consideration of the mutual promises and recitals herein, the parties intending to be legally bound, agree as follows: 1. All recitals are true and correct and are expressly incorporated herein. 2. Both parties agree that the “whereas” clauses incorporated herein are binding findings of the parties. 3. Joseph Thomas, M.D. hereby acknowledges, affirms and certifies that, at the time this agreement is executed by him, he is the sole owner of the Florida corporation Physicians Medical Center-Jax, Inc. 4, Victoria Critzer hereby acknowledges, affirms and certifies that, at the time this agreement is executed by her, she is the sole owner of the Florida corporation Physicians Medical Center, Inc. 5. Upon full execution of this Agreement, Petitioner agrees to waive any and all proceedings and appeals to which it may be entitled including, but not limited to, an informal proceeding under Subsection 120.57(2), a formal proceeding under Subsection 120.57(1), appeals under Section 120.68, Florida Statutes; and declaratory and all writs of relief in any court or quasi-court (DOAH) of competent jurisdiction; and further agrees to waive compliance with the form of the Final Order (findings of fact and conclusions of law) to which it may be entitled. Provided, however, that no Agreement herein, shall be deemed a waiver by either party of its right to judicial enforcement of this Agreement. 6. Upon full execution of this Agreement, the parties agree to the following: a. Petitioner's four (4) applications for exemption from licensure are hereby withdrawn, and Petitioner expressly waives its right to challenge or appeal, or both, in DOAH or elsewhere, the denial by the Agency of the exemptions. b. The Agency will resume processing the four initial licensure applications submitted by Victoria Critzer as intended future 100% owner of Physicians Medical Centers-Jax, Inc., now pending, and if the applications are complete and the applicant qualified under applicable law, the Agency will issue the licenses upon full payment by Petitioner of an agreed upon sum, as set forth below, to resolve the Agency's claim of unlicensed activity against Physicians Medical Center, Inc. Ms. Critzer agrees to use reasonable diligence to timely remedy any omissions from the applications cited by the Agency, to make the facilities available as required by law for all inspections required in connection with the licensure of the facilities, and to otherwise comply with all requirements of the application process, and all statutes and administrative rules thereunto appertaining, including background screening as may be applicable. c. The Agency agrees to use all reasonable diligence to process the initial license applications, and to issue the initial licenses as expeditiously as reasonably possible, provided that Ms. Critzer timely complies with all reasonable requests for additional information to which the Agency is entitled as a component of the application and licensure process, and provided that Victoria Critzer, and the applications she presented, are qualified for the licenses under all applicable statutes and administrative rules. d. Victoria Critzer will maintain the health care clinic license #HCC6732 currently held by Physicians Medical Center Inc. (PMC), for purposes of billing health care services provided solely at the licensed location, 9826 San Jose Boulevard, Suite B, Jacksonville, Florida. Whereas, Ms. Critzer, through counsel, has advised the Agency of a change of address for the license from 9826 San Jose Boulevard, to 9826 San Jose Boulevard, Suite B, PMC will submit a change of address application to the Agency together with the appropriate fee, within 10 days of execution of this agreement, and prior to resumption by the Agency of processing of the subject licensure applications. The license will be maintained 7. under a different federal employer identification number from any other licenses issued to Victoria Critzer or any entity in which she has a controlling interest. A separate health care clinic license must be obtained for any other location at which any health care services will be provided and third-party reimbursement sought for on behalf of Physicians Medical Centers Inc. e. Physicians Medical Centers, Inc. agrees to pay the sum of thirty thousand and no/100s dollars ($30,000.00) to the Agency, to resolve the Agency's allegations of unlicensed activity, in the interest of expediently resolving these matters and in recognition of the expense and uncertainty of litigation. The sum will be paid in lump sum at the time that the initial licenses referenced in paragraph b., above, are issued, or within 30 days following rendition of a Final Order by the Agency that incorporates this Agreement, whichever occurs first. f. Nothing in this Agreement shall prohibit the Agency from denying Petitioner’s application for licensure based upon any statutory and/or regulatory provision, including, but not limited to, the failure of Petitioner to satisfactorily complete a survey reflecting compliance with all statutory and rule provisions as required by law. By executing this Agreement, the Petitioner neither admits nor denies the allegations raised in the Notices of Intent to Deny referenced herein. 8. Upon full execution of this Agreement, the Agency shall enter a Final Order adopting and incorporating this Agreement in its entirety, and closing the above-styled case(s). The cases resident in DOAH, referenced above as DOAH cases numbered 10-3202, 10-3203, 10- 3204 and 10-3205, are currently closed by Order entered in that tribunal on October 7, 2010. The parties hereby further agree that those cases shall remain closed permanently, and each party hereby waives its right to seek to have any of those cases re-opened. 9. Each party shall bear its own costs and attorney’s fees. 10. This Agreement shall become effective on the date upon which it is fully executed by all the parties. 11. The Petitioner for itself and for its related or resulting organizations, its successors or transferees, attorneys, heirs, and executors or administrators, does hereby discharge the Agency and its agents, representatives, and attorneys of all claims, demands, actions, causes of action, suits, damages, losses, and expenses, of any and every nature whatsoever, arising out of or in any way related to this matter and the Agency’s actions, including, but not limited to, any claims that were or may be asserted in any federal or state court or administrative forum, including any claims arising out of this Agreement, by or on behalf of the Petitioner or related or resulting organizations. 12. This Agreement is binding upon all parties herein and those identified as a party, or a beneficiary, of the provisions of this Agreement, and each signatory acknowledges same and the adequacy of consideration therefor. 13. In the event that Petitioner is or was a Medicaid provider, this settlement does not prevent the Agency from seeking Medicaid overpayments or from imposing any sanctions pursuant to Rule 59G-9.070, Florida Administrative Code. This Agreement does not prohibit the Agency from taking action regarding Petitioner’s Medicaid provider status, conditions, requirements or contract. 14. The undersigned have read and understand this Agreement and have authority to bind their respective principals to it. Both parties have been represented by counsel in the negotiation and execution of this Agreement. The Petitioner fully understands that counsel for the Agency represents solely the Agency and Agency counsel has not provided legal advice to or influenced the Petitioner in its decision to enter into this Agreement. 15. This Agreement contains the entire understandings and Agreements of the parties. 16. | This Agreement supersedes any prior oral or written Agreements between the parties. This Agreement may not be amended except in writing. Any attempted assignment of this Agreement shall be void. 17. Venue for any action brought to interpret, challenge or enforce the terms of this Agreement or the Final Order entered pursuant hereto shall lie solely in the Circuit Court in Leon County, Florida. 18. ‘Ifa court of competent jurisdiction finds any part of this Agreement to be void, voidable, or unenforceable, then the remainder of the contract shall remain in full force and effect. 19. All parties agree that a facsimile signature suffices fe 20. The following representatives and beneficiaries hereby ae duly S. to enter into this Agreement. Molly McKéns eputy Secretary {_ panes P. Céhen, Esquire Health Quality ance Cohen & Thurston, P.A. Agency for Health Care Administration 1723 Blanding Boulevard, Suite 102 2727 Mahan Drive, Bldg #3 Jacksonville, Florida 32310 Tallahassee, Florida 32308 Counsel to Petitioner DATED: (frolir DATED: 1-1 U~ aye William R. Roberts Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308 DATED: /7 [(3l 4 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308 DATED: Uf (5) WH Physicians Medical Centers-Jax, Inc. 9826 San Jose Boulevard Jacksonville, Florida 32257 patep: _})-14~!/ ~~ x. 1 _f- Victoria Critzer as president, sole director and 100% Owner Physicians Medical Center, Inc. 9826-B San Jose Boulevard Jacksonville, Florida 32257 DATED: _|1- (4-//
Conclusions THIS CAUSE comes before the AGENCY FOR HEALTH CARE ADMINISTRATION (the "Agency") concerning the Agency’s denial of the Home Health application of the Petitioner, Florida Home Health Association, Inc., (“Petitioner”), Subsequently, Petitioner filed a Petition For Formal Administrative Hearing, which was forwarded by the Agency Clerk to the Division of Administrative Hearings (“DOAH”). On April 9, 2010 , Petitioner filed its voluntary dismissal of the DOAH case. (Exhibit “A”) On April 12", 2010, an Order Closing File was issued by DOAH as a result of the voluntary dismissal. (Exhibit “B”) ' The correct Fraes No is 2010000781. The pleading filed by Petitioner in the above referenced matter, theNotice of Voluntary Dismissal, reflects an incorrect Fraes No of 2010000782. Filed April 15, 2010 8:00 AM Division of Administrative Hearings. It is therefore ORDERED and ADJUDGED: 1. The voluntary dismissal filed by Petitioner and the DOAH Order Closing File are hereby acknowledged and accepted. 2. Petitioner’s application is hereby denied. 3. The above-styled case is hereby closed. DONE and ORDERED this A eos of Copuk , 2010 in Tallahassee, Florida. AGENCY FOR HEALTH CARE sonmasreanion
The Issue Whether Respondent engaged in an unlawful employment practice with regard to Petitioner because of Petitioner's asserted disability.
Findings Of Fact At the time of the hearing, Ms. Hays was 36 years of age and was unemployed. During times pertinent she lived in Chattahoochee, Florida. The Hospital in Chattahoochee, Florida, is a large residential mental health facility operated under the auspices of the Department. The Hospital also administratively supports employees of the Agency for Persons with Disabilities. The Hospital is an employer as that term is defined in Subsection 760.02(7), and thus subject to the Florida Civil Rights Act of 1992. Ms. Hays, prior to her employment with the Hospital, worked for various employers in clerical and secretarial positions. She began working at the Hospital in 2000. She was employed in a temporary position in Unit 25 as a Clerk Typist Specialist. After two weeks on the job, she was moved to Unit 14 and worked as a Human Service Worker I. This was also a temporary position. In this latter position, she took care of elderly residents. She bathed them, fed them, and otherwise helped them with their daily needs. She also escorted them to off-campus appointments. She received a "Review and Performance Planning" document signed by her on June 19, 2000, which indicated that she was performing in a satisfactory manner. She was hired in a full-time position as a Human Service Worker I in August 2000 in Unit 31/32. In this position her duties included assisting nurses in the medical unit of the Hospital. A "Review and Performance Planning" document signed by Ms. Hays on January 30, 2001, stated that she achieved standards and included some complimentary remarks. In July 2001, she was moved to Unit 29 as a Human Service Worker I. Unit 29 is also known as the Mentally Retarded Defendant Program (MRDP) or MRDP 29. She received a "Review and Performance Planning" document that she signed on March 29, 2002. She received an overall evaluation of "3.81." A performance rating of "4" means that she consistently met and often exceeded expectations. A "5" is the highest rating one can obtain at the Hospital. Her next rating for the period March 2002 until July 2002, resulted in a grade of "4." During the period July 20, 2002, until March 1, 2003, she did not receive a rating because she was not working at the Hospital during the evaluation period. Nevertheless, Annette Bates, Ms. Hays' supervisor, noted that she was a good worker and an asset to MRDP 29. Ms. Hays was injured on November 27, 2001, while exiting the "big blue bus." She slipped on wet steps, and her lower back and neck impacted the steps. A physician, Dr. K. W. Richardson of Chattahoochee, reported that the injury sustained was a broken tail bone. He noted this in a "First Report of Injury or Illness" dated November 28, 2001. Ultimately the diagnosis was changed to two bulging disks. Pain medication was prescribed, but she never required surgery. Wages paid to her, by the Hospital, $751.63 bi-weekly, terminated on December 4, 2001. Subsequently, she was paid workers' compensation benefits. She was informed she could work, but could not lift more than ten pounds and could not have contact with patients. She was authorized to work only at a desk job. Ms. Hays returned to work at the Hospital on January 18, 2002. She was placed on light duty and assigned to the Medical Records Section at MRDP. She filed documents and did other tasks as assigned. Her supervisor was a Ms. Lawrence. On July 18, 2002, her light-duty status expired and because the Hospital could not accommodate her restrictions, she was sent home and provided workers' compensation benefits. She continued to receive workers' compensation benefits until December 2004, when she reached maximum medical improvement. In December 2004, she was contacted by Tracy Wallace and as a result, Ms. Hays met with Margaret Forehand. Ms. Forehand, at that time, was the Hospital's Workers' Compensation Coordinator. She told Ms. Hays that a position was available in MRDP, Unit 29, and invited her to apply for it. Ms. Hays completed a State of Florida Employment Application. She was thereafter employed as a "clerk typist specialist - F/C" at a salary rate of $754.24, which was, on a bi-weekly basis, $39.70 less than she was receiving before her injury. (The designation F/C means forensic corrections.) Ms. Hays' Letter of Acceptance, dated December 7, 2004, and accepted by Ms. Hays on December 7, 2004, informed her that her position was probationary for 12 months. The letter was written on Department stationery, but was signed by David English, Program Operations Administrator, who worked for the Agency for People with Disabilities. He has the ultimate hiring authority for the employees of MRDP. Although termed a "demotion," the lower pay was actually the result of Hospital policy that was applied to all employees who returned from an absence subsequent to being placed on workers' compensation. This job was not preceded by an interview. The person who became her supervisor, Shellie Owens, was not involved in Ms. Hays' hiring process. Ms. Hays' ultimate employer was the Department. Ms. Hays' duties as a "clerk typist specialist- F/C" included filing, typing, and answering and referring calls. She filed ward charts, "thinned charts," and ensured that ward charts and central files were maintained in accordance with Hospital policies, among other tasks. Her duties were set forth in a "Career Service System Position Description." Her section was denoted "MRDP." She was physically able to perform these duties without an accommodation. Her daily work was not in the least affected by any injury or disability. The evidence indicates that both Ms. Hays and Ms. Owens' ultimate employer was the Agency for Persons with Disabilities. Ms. Owens was aware that Ms. Hays had been on workers' compensation for a time. Ms. Owens knew that Ms. Hays could not lift more than ten pounds and was aware that the job did not require lifting more than ten pounds. No evidence was adduced indicating that Ms. Owens perceived Ms. Hays as disabled. Because entries are frequently entered in patients' ward charts, they would grow quite large if not managed. It is necessary for some of the information to permanently remain in ward charts, but a substantial portion may be stored elsewhere. The portions of the charts that are not required to remain in the ward are permanently stored in the Medical Records Office. The process of removing designated matter from the ward charts is called "thinning." Thinning was an important part of Ms. Hays' job. She had to "thin" in accordance with a schedule. Some documents would be left in ward charts for three months, some would be kept if they were only the most recent of a type, and some were kept as long as needed. Some were permanent and, therefore, never removed. It was important also, as part of the process, that Ms. Hays ensure that documents in ward charts were arranged in the proper order. For the rating period December 7, 2004, until March 1, 2005, Ms. Owens evaluated Ms. Hays as a "3." In the written portion of the evaluation, Ms. Owens noted that Ms. Hays had a pleasant personality and was willing to assist others. Ms. Owens' job title is Health Information Specialist Supervisor. In addition to Ms. Hays, during times pertinent, Ms. Owens supervised from three to four other people. On April 19, 2005, approximately six weeks after receiving her evaluation, Ms. Hays was counseled by Ms. Owens. Ms. Owens told her she needed to improve in some areas and that her desk was not tidy. She provided Ms. Hays with a schedule of daily assignments designed to help Ms. Hays improve. Ms. Owens memorialized her discussion with Ms. Hays in a memorandum dated April 19, 2005. In the memorandum, she noted that Ms. Hays had been provided with the MRDP Worksite Orientation Requirement Worksheet on February 25, 2005, and that Ms. Hays understood her duties and acknowledged that by signing it. The memorandum recited that Ms. Hays' work was backed up and that her desk had food and drink on it that could have been spilled on documents which were on the desk. The memorandum also reminded Ms. Hays that she was a probationary employee. Ms. Owens also gave Ms. Hays a "daily schedule" that had an effective date of April 25, 2005. Ms. Hays and Ms. Owens both signed it. The "daily schedule" informed Ms. Hays exactly what she was to do every day of the week. In Ms. Hays' opinion, she followed "every word" of the schedule, and Ms. Owens did not indicate that there was any problem with her work immediately subsequent to the implementation of the "daily schedule." Ms. Owens conducted an audit of the charts maintained by Ms. Hays on May 20, 2005, and reduced the results to writing. The information developed in the audit caused Ms. Owens to conclude that Ms. Hays' work was not improving. Ms. Owens believes that medical records are extremely important and keeping them in good order is a necessity. Her audit found that Ms. Hays was not keeping them in good order. She found her work to be unacceptable. She discussed the matter with Les Smith, the Residential Services Director of Forensic Corrections. He was her immediate supervisor. Ms. Owens then talked to Amy Bryant the Hospital's Employee Relations Counselor with regard to procedures to be followed in terminating an employee. She wanted to comply with procedures. Ultimately a meeting occurred attended by Ms. Owens, Les Smith, David English, and an attorney for the hospital, Amy Tillman. During this process, the decision to offer Ms. Hays the opportunity to resign in lieu of being fired, was finalized. On May 24, 2005, Ms. Hays was ordered by Ms. Owens to report to Mr. Smith's office. Mr. Smith is Ms. Owens' supervisor. When she arrived, she was given the choice of resigning or being fired. If she had not resigned, she would have been fired immediately. Ms. Hays was surprised when she was informed of this choice. She resigned in a handwritten letter dated May 24, 2005. This was her last day of work at the Hospital. As a probationary employee, she had no right to appeal what amounted to a discharge. Bernice King worked at the Hospital with Ms. Hays. She was a Human Service Worker II in MRDP 29. She had an opportunity to observe Ms. Hays' work. Ms. King used the charts maintained by Ms. Hays, and she found them to be in good order. Danielle Rene Shaw worked at the Hospital with Ms. Hays. She was a Human Service Worker II in MRDP 29. She had an opportunity to observe Ms. Hays' work. Ms. Shaw used the charts maintained by Ms. Hays, and she found them to be in good order. She thought Ms. Hays was a hard worker. Mark Flodin, M.D., worked as a physician in MRDP 29 when Ms. Hays was working there, and he had an opportunity to observe her performance. He noted that she was a hard worker and had a professional attitude. He said she maintained the ward charts in an orderly fashion. He was surprised when she was terminated. Ms. Hays' position was filled by Ms. Ryan Smith, who came to the Hospital from another state agency. She was paid at the rate of $828.17 bi-weekly. Ms. Hays applied for over a hundred jobs with the State of Florida using the state's website, MyFlorida.com. She also sought employment with 15 private employees. She was interviewed twice, but received no job offers. She was never offered an interview at the Hospital. She received unemployment compensation for about six months after she left the Hospital. Subsequent to her departure from the Hospital, and her inability to secure other employment, she had to have her depression medicine, Zoloft, increased, but she still feels depressed and worthless. She is also taking Chlonzpam, an anti- anxiety drug, and Wellbutrin. Ms. Hays' mother works at the Hospital, as a licensed practical nurse, and her husband was once employed there also. Her father is retired from employment at the Hospital, and her grandmother and grandfather worked there.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations dismiss the Petition of Alicia Hays. DONE AND ENTERED this 25th day of July, 2007, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 July, 2007. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Carolyn Dudley, Assistant Staff Director Department of Children and Family Services 1317 Winewood Boulevard Building 1, Room 101F Tallahassee, Florida 32399-0700 Sharon L. Ray, Esquire Agency for Persons with Disabilities 3700 Williams Drive Marianna, Florida 32446 Erika E. Bush, Esquire Marie A. Mattox, P.A. 310 East Bradford Road Tallahassee, Florida 32303 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issues in this case are whether the applications of Urban Edge Family, Ltd. (Application No. 2011-236C), and Urban Edge Apartments, Ltd. (Application No. 2011-235C), are entitled to Proximity Tie-Breaker Points with regard to a "medical facility," as defined in the 2011 Universal Cycle Instructions.
Findings Of Fact Findings of Fact 1 through 29 were stipulated to by the parties and appeared in their Prehearing Stipulation. Each Petitioner is a Florida limited partnership with its address at 700 West Morse Boulevard, Winter Park, Florida 32789. Each is in the business of providing affordable rental housing units in the State of Florida. Florida Housing is a public corporation, with its address at 227 North Bronough Street, Suite 5000, Tallahassee, Florida 32310, organized to provide and promote the public welfare by administering the governmental function of financing and refinancing housing and related facilities in the State of Florida. Background Florida Housing administers various affordable housing programs, including the following: Housing Credit (HC) Program pursuant to section 42 of the Internal Revenue Code and section 420.5099, Fla. Stat., under which Florida Housing is designated as the Housing Credit agency for the state of Florida within the meaning of section 42(h)(7)(A) of the Internal Revenue Code, and Florida Administrative Code Rule 67-48, F.A.C.; and HOME Investments Partnerships (HOME) Program pursuant to section 420.5089, and Rule 67-48. The 2011 Universal Cycle Application, through which affordable housing developers apply for funding under the above- described affordable housing programs administered by Florida Housing, together with Instructions and Forms, comprise the Universal Application Package or UA1016 (Rev. 2-11), adopted and incorporated by Florida Administrative Code Rule 67-48.004(1)(a). Because the demand for HC and HOME funding exceeds that which is available under the HC program and HOME program, respectively, qualified affordable housing developments must compete for this funding. To assess the relative merits of proposed developments, Florida Housing has established a competitive application process known as the Universal Cycle pursuant to Florida Administrative Code Rule 67-48. Specifically, Florida Housing's application process for the 2011 Universal Cycle, as set forth in Rule 67-48.001 through 67-48.005, involves the following: The publication and adoption by rule of a "Universal Application Package," which applicants use to apply for funding under the HC and HOME Programs administered by Florida Housing; The completion and submission of applications by developers; Florida Housing's preliminary scoring of applications (Preliminary Scoring Summary); An initial round of administrative challenges in which an applicant may take issue with Florida Housing's scoring of another application by filing a Notice of Possible Scoring Error ("NOPSE"); Florida Housing's consideration of the NOPSEs submitted, with notice (NOPSE scoring summary) to applicants of any resulting change in their preliminary scores; An opportunity for the applicant to submit additional materials to Florida Housing to "cure" any items for which the applicant was deemed to have failed to satisfy threshold or received less than the maximum score; A second round of administrative challenges whereby an applicant may raise scoring issues arising from another applicant's cure materials by filing a Notice of Alleged Deficiency ("NOAD"); Florida Housing's consideration of the Cures and NOADs submitted, with notice (final scoring summary) to applicants of any resulting change in their scores; An opportunity for applicants to challenge, by informal or formal administrative proceedings, Florida Housing's evaluation of any item in their own application for which the applicant was deemed to have failed to satisfy threshold or received less than the maximum score; Final scores, ranking of applications, and award of funding to successful applicants, including those who successfully appeal the adverse scoring of their application; and An opportunity for applicants to challenge, by informal or formal administrative proceedings, Florida Housing's final scoring and ranking of competing applications where such scoring and ranking resulted in a denial of Florida Housing funding to the challenging applicant. Petitioners timely submitted their two applications for financing in Florida Housing's 2011 Universal Cycle. In Application No. 2011-236C (DOAH Case No. 12-1615), Petitioner Urban Edge Family, Ltd., applied for $1.46 million in annual federal tax credits to help finance the development of its project, a 64-unit multi-family apartment complex in Pinellas County, Florida, known as Urban Edge--Phase II. In Application No. 2011-235C (DOAH Case No. 12-1616), Petitioner Urban Edge Apartments, Ltd., applied for $1.66 million in annual federal tax credits to help finance the development of a second project, an 80-unit multi-family apartment complex in Pinellas County, Florida, known as Urban Edge Apartments. For both applications, Petitioners initially submitted for Proximity Tie-Breaker Points medical facility coordinates purporting to be an entrance to Bayfront Medical Center in Pinellas County, Florida. Petitioners' applications were initially awarded the full 4.0 Proximity Tie-Breaker Points for proximity to Bayfront Medical Center. Subsequently, competing applicants submitted NOPSEs asserting that the coordinates submitted for Bayfront Medical Center were, in fact, located at the nearby All Children's Hospital (the "Hospital"). In response to the NOPSEs filed against Petitioners' applications, Florida Housing rescinded its preliminary scoring with regard to the medical facility and awarded Petitioners zero points for proximity to a medical facility. Petitioners subsequently submitted Cures to their applications providing different medical facility coordinates, this time for the Hospital emergency department and asserting that the emergency room of the Hospital met Florida Housing's definition of "medical facility" for purposes of awarding Proximity Tie-Breaker Points. In response to the submitted Cures, competing applications filed NOADs disputing the status of the Hospital as a medical facility under the definition included in the 2011 Universal Cycle Instructions. After review of the submitted Cures and NOADs regarding the status of the Hospital emergency room as a "medical facility," Florida Housing again rejected the Hospital emergency room as a medical facility and awarded zero Proximity Tie-Breaker Points to both applications for this service. Urban Edge (235C) Application Status and Scoring The Urban Edge application (2011-235C) meets all threshold requirements for consideration for funding. The Urban Edge application (2011-235C) is entitled to 79.00 points (excluding all Tie-Breaker points). The Urban Edge application (2011-235C) is entitled to 6.00 Ability to Proceed Tie-Breaker Points. The coordinates provided by Urban Edge on the Exhibit 25 (Surveyor Certification form), submitted with its Cure for a medical facility, represent a point on the doorway threshold of an exterior entrance that provides direct public access to the emergency department at the Hospital. The coordinates provided by Urban Edge on the Exhibit 25 submitted with its Cure for the Tie Breaker Measurement Point (TBMP) were unchanged from its original TBMP, and they represent a point that is on the Urban Edge development site. The coordinates provided by Urban Edge for a medical facility in the Exhibit 25 submitted with its Cure represent a point that is within .25 miles of the Urban Edge TBMP. If the medical facility designated by Urban Edge on the Exhibit 25 submitted with its Cure qualifies as a medical facility under Florida Housing's rules, then Urban Edge is entitled to 4.0 Proximity Tie-Breaker Points for a medical facility; and Urban Edge would be entitled to a total of 34.75 Proximity Tie-Breaker Points. If Urban Edge had relied on the alleged location of the exterior entrance to Bayfront Medical Center as stated in NOPSE No. 519, then it would have received only 3.5 Proximity Tie-Breaker Points for a medical facility, for a total Proximity Tie-Breaker Point score of 34.25. Urban Edge II (236C) Application Status and Scoring The Urban Edge II application (2011-236C) meets all threshold requirements for consideration for funding. The Urban Edge II application (2011-236C) is entitled to 79.00 points (excluding all Tie-Breaker points). The Urban Edge II application (2011-236C) is entitled to 6.00 Ability to Proceed Tie-Breaker Points. The coordinates provided by Urban Edge II on the Exhibit 25 submitted with its Cure for a medical facility represent a point on the doorway threshold of an exterior entrance that provides direct public access to the emergency department at the Hospital. The coordinates provided by Urban Edge II on the Exhibit 25 submitted with its Cure for the TBMP was unchanged from its original TBMP, and they represent a point that is on the Urban Edge II development site. The coordinates provided by Urban Edge II for a medical facility on the Exhibit 25 submitted with its Cure represent a point that is within .25 miles of the Urban Edge II TBMP. If the medical facility designated by Urban Edge II on the Exhibit 25 submitted with its Cure qualifies as a medical facility under Florida Housing's rules, then Urban Edge II is entitled to 4.0 Proximity Tie-Breaker Points for a medical facility, and Urban Edge II would be entitled to a total of 34.00 Proximity Tie-Breaker Points. If Urban Edge II had relied on the alleged location of the exterior entrance to Bayfront Medical Center as stated in NOPSE No. 515, then it would have received only 3.5 Proximity Tie-Breaker Points for a medical facility, for a total Proximity Tie-Breaker Point score of 33.50. Urban Edge II timely filed its Petition contesting Florida Housing's scoring of its application, whereupon Florida Housing forwarded the matter to the Division of Administrative Hearings. The following Findings of Fact are based on testimony and documentary evidence presented at final hearing: Florida Housing defines medical facilities, for purposes of determining Proximity Tie Breaker Points, as "[A] hospital, state or county health clinic or walk-in clinic (that does not require a prior appointment) that provides general medical treatment or general surgical services at least five days per week to any physically sick or injured person." (This definition is found on page 34 of the Florida Housing Instructions portion of the application.)1/ All Children's Hospital is licensed by the State of Florida as a Class II hospital with 162 acute care beds, 35 neonatal intensive care unit (NICU) Level 2 beds, and 62 NICU Level 3 beds. The Hospital is classified as a specialty hospital for children and is known as a pediatric health care facility. Emergency services at the Hospital are provided through an on-site emergency department. The emergency department, per the federal Emergency Medical Treatment and Active Labor Act (EMTALA), must provide emergency services to any person, regardless of age, who presents in an emergent state. The emergency department at the Hospital is within .25 miles of the sites proposed for Petitioners' projects. Florida Housing contends that the emergency department of the Hospital is not a medical facility as defined by Florida Housing's rules. Because the emergency department is part of a specialty hospital which serves only children, Florida Housing takes the position that the medical facility selected by Petitioners does not provide services to "any" physically sick or injured persons. Florida Housing's director, Mr. Auger, stated that no distinction is made between a hospital and its emergency room, i.e., if a hospital holds a specialty license, then the entire hospital is considered a specialty hospital. He did not opine as to the impact of EMTALA on that statement. Mr. Auger did, however, address the correlative situation of a specialty grocery store (as grocery stores are another place which can provide tie-breaker points to an applicant in close proximity). If an ethnic grocery was located near a proposed project, it could be counted for proximity points if it also met all the rule requirements for a grocery store, e.g., sufficient square footage, appropriate air conditioning, necessary food products, etc. Presumably, a specialty hospital could also satisfy the proximity requirements, so long as it met all other requirements for a medical facility. Petitioners provided a letter from the Hospital in its Cure documents which stated in full: "This letter confirms that the Emergency Center at All Children's Hospital is open 24/7 and will treat all patients in accordance with EMTALA." The letter was written by Tim Strouse, the Hospital's vice-president of facilities and support services. Mr. Strouse is not a physician. Mr. Strouse did not know the Hospital's protocol for handling non-pediatric patients in its emergency center. He was of the opinion that generally such a patient would be sent across the street to Bayfront Medical Center. However, he did believe that essentially all services offered in the Hospital were available in the emergency center. Two expert witnesses testified, in the abstract, concerning the process for treating patients who present to an emergency room.2/ It is clear that once a person appears at a specialty hospital's emergency room, there is an initial triage performed to determine the level of treatment needed. If the person requires medical care to stabilize his or her condition, such care must be provided by the emergency room under EMTALA. It does not matter whether the person would be a candidate for admission to the specialty hospital after stabilization; any and all care the hospital is authorized to provide can be given to that patient in order to resolve the emergency situation. There was no testimony provided by a physician or other health care worker from the Hospital concerning how it handled emergency center patients. Absent such testimony, it is not possible to ascertain exactly how the Hospital complies with EMTALA requirements. If, as Mr. Strouse believed, an adult patient would merely be transferred 130 feet across the street to Bayfront Medical Center without further treatment, then there would not seem to be any provision of medical services. However, if the medical experts who testified were correct and stabilization of patients involved the provision of medical services, then the Hospital may be a medical facility under the Florida Housing rules. The Hospital representative was provided several scenarios involving the treatment of different kinds of patients presenting with various and sundry ailments. In each case, the representative, who was not a physician, attempted to suggest how the Hospital might treat those individuals. The representative could not opine, however, as to whether general medical treatment would be provided in any of the scenarios. From the evidence presented, the Hospital provides an extensive array of services to its pediatric patients, including, but not limited to: cardiology, cardiovascular surgery, colon and rectal surgery, endocrinology, gastroenterology, hematology, internal medicine, nephrology, neurology, obstetrics, ophthalmology, orthopedics, plastic surgery, pulmonary medicine, radiology, thoracic surgery, and urology. It must be presumed that those same services could theoretically be provided in the emergency department as well.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Respondent, Florida Housing Finance Corporation, finding that Petitioners, Urban Edge Family, Ltd., and Urban Edge Apartment, Ltd's, applications satisfy the requirements for all four Proximity Tie-Breaker Points relating to proximity to a medical facility. DONE AND ENTERED this 9th day of July, 2012, 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 9th day of July, 2012.
