Findings Of Fact Based upon the deposition testimony and documentary evidence from the petitioner's application file, the following relevant facts are found: Petitioner is a 1979 graduate of the University of Karachi and Dow Medical College in Pakistan. At the time of his application for Florida licensure by endorsement, he was licensed to practice medicine in Iowa. He is currently licensed to practice medicine in the states of Iowa, Georgia and Maryland. When the Florida Board of Medicine noticed its intent to deny petitioner's application, he had obtained a passing score on the federal licensing examination (FLEX). Contained within petitioner's application file are numerous letters from physicians who had, at one time or another, worked with the petitioner at various health care facilities. With one exception, all such letters recommended him for licensure in Florida and are quite positive regarding petitioner's competency as a physician. The one exception came from Dr. David W. Schultz, who was the director of petitioner's first year residency program at Lutheran Medical Center in Ohio. Petitioner participated in and completed a first year internal medicine residency program at Lutheran Medical Center from July 1, 1983 through June 30, 1984. Dr. David W. Schultz had held the position of director of the residency program for over twenty years. During petitioner's year of residency, Dr. Schultz taught the first year residents only one class. Other than his teacher/student relationship with petitioner during that one class in October and/or November of 1983, Dr. Schultz had no opportunity to directly and personally observe petitioner's ability to practice medicine. The entire faculty was involved in the teaching and observation of the residents. The "firm" or group to which petitioner was assigned as a first year resident did not manage or treat any of the patients admitted by Dr. Schultz. Other than his class observations, Dr. Schultz's opinions regarding petitioner's competency are based solely upon verbal reports and comments from other physicians and residents during the year. On January 13, 1984, Dr. Schultz wrote a letter "To Whom It May Concern," stating that petitioner is a "hard working and sincere physician" who "seems to get along with fellow residents and the Attending Staff." He recommended petitioner "for acceptance into your program." On or about February 10, 1984, Dr. Schultz completed and returned a form sent to him by the Florida Board of Medicine. The form advised Dr. Schultz that petitioner had applied for medical licensure in Florida and requested Dr. Schultz to rate petitioner in fifteen areas as either "poor," "fair," "good," "superior," or "don't know," and to provide an overall evaluation by checking one of the following: " 1. Recommend as outstanding applicant. 2. Recommended as qualified and competent. 3. Recommended with some reservation. 4. Cannot recommend." If either numbers 3 or 4 were checked, a written explanation was requested. Dr. Schultz rated petitioner "good" in all fifteen categories and checked item number 2 above -- "recommended as qualified and competent." On June 20, 1984, Dr. Schultz wrote a similar "To Whom It May Concern Letter" recommending petitioner "for acceptance into your program." On June 25, 1984, Dr. Schultz wrote a letter to the Florida Department of professional Regulation recommending petitioner "for a license in the State of Florida." Both of the June, 1984, letters again state that petitioner is "a hard working and sincere physician" and that "he seems to get along with fellow residents and the Attending Staff." In October of 1984, the Board of Medicine received a second completed form from Dr. Schultz regarding the petitioner. This form called for the identical information as the form completed by Dr. Schultz in February of 1984. However, this time Dr. Schultz rated petitioner as "fair" in thirteen categories, "poor" in one category (relationship with colleagues) and "good" in only one category (knowledge of English). As an overall evaluation, Dr. Schultz checked Item Number 3, "recommended with some reservation," but no written explanation was provided. At his deposition taken on September 17, 1987, Dr. Schultz attempted to explain the discrepancies between his evaluations of petitioner submitted in January, February and June of 1984 and his October, 1984, evaluation. When asked what happened between the two forms submitted in February and October of 1984, Dr. Schultz testified that it was only petitioner's failure to improve. Elaborating somewhat, Dr. Schultz stated: "I think, I admit to you it seems difficult to justify. I think if you have had the experience I've had over a period of many, many years in training residents and starting residents in what is a three-year program that you are always hopeful `that people who don't perform well at the first-year level may be able to find themselves, improve their basic knowledge level, and apply it better in the two years they have left in training, and that is the only justification I can give you for those letters. During his deposition, Dr. Schultz opined that petitioner was the "poorest" of the eight first year residents in the areas of basic medical knowledge, ability to apply knowledge to the effective management of patients and willingness to work hard. It was his opinion that, during the time of his first year residency, petitioner was not competent to independently practice medicine with skill and safety. The petitioner's application file also contains two letters written in January and February of 1984, from Dr. William T. Wilder, who was then an associate clinical director of the Medical Geropsychiatric Unit at Lutheran Medical Center. These letters represent that Dr. Wilder has worked closely with the petitioner during his residency program and that Dr. Wilder regards petitioner as having "excellent moral character" and "excellent qualifications to practice as a physician." He describes petitioner as a "very dedicated and thorough resident," "diligent in follow up on patient problems," and able to work well with patients. In 1983, Lutheran Medical Center was required to reduce the number of second year resident positions from eight to six. In the opinion of Dr. Schultz, even if Lutheran had had eight available second year residency positions, petitioner would not have been offered one of them because "his performance didn't warrant that." Petitioner was informed in October of 1983, that he would not be offered a second year residency position at Lutheran. Apparently, the month of October is a uniform appointment time throughout the country for residents in hospitals with approved medical programs. During the end of his second full month of residency at Lutheran Medical Center, petitioner underwent emergency eye surgery for a detached retina. It was petitioner's understanding that he was not offered a second year residency at Lutheran Medical because of his eye problems and because of the cutback in the number of second year residency positions. Although other residents were placed on probation due to unsatisfactory performance, petitioner was never placed on probation during his residency at Lutheran. On July 3, 1984, after the completion of his residency, petitioner filed a civil rights action against Lutheran Medical Center alleging that he had been discriminated against due to his eye problems. Dr. Schultz's deposition was taken in connection with that action in the summer of 1984. Since November of 1986, petitioner has been employed as a staff physician at the Georgia State Prison in Ridgeville, Georgia. In that capacity, petitioner sees approximately twenty to thirty male inmate patients per day and performs some minor surgery. His immediate supervisor is the medical director of the Georgia State Prison, Dr. Henry A. Robinson, who is board certified in obstetrics/gynecology and has been practicing medicine for 31 years. Dr. Robinson observes petitioner on a daily basis, and recommends him for licensure in Florida with no reservation. It is Dr. Robinson's opinion that petitioner is "very firm in his medical skills," has good medical knowledge which he applies very well, is willing to work, is cooperative and gets along well with his peers and his patients. Dr. Robinson has had fewer complaints from inmate patients regarding petitioner than any other health care worker. When asked to give an overall rating of petitioner as a physician, Dr. Robinson replied "I think he's well trained. He's motivated and does a fine job in the day-to-day practice."
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that petitioner's application for licensure by endorsement be GRANTED. Respectfully submitted and entered this 25th day of February, 1988, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of February, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2680 The proposed findings of fact submitted by counsel have been carefully considered and are accepted and/or incorporated in the Recommended Order, except as noted below. Respondent 5, last sentence: Rejected; if respondent is referring to "approved" medical training, this is irrelevant and immaterial. The evidence does establish that petitioner has been practicing medicine since the time of his residency. 9. The first two sentences and the last four sentences are accepted. The last sentence is accepted as a reason stated by the Board, but not as a sufficient reason for denial. The remaining portions are rejected as contrary to the conclusions drawn by the undersigned upon a reading of the entire deposition. COPIES FURNISHED: Gary D. Fields, Esquire 230 Royal Palm Way Suite 400 Palm Beach, Florida 33480 M. Catherine Lannon, Esquire Assistant Attorney General Administrative Law Section Suite 1601 - The Capitol Tallahassee, Florida 32399-1050 Dorothy Faircloth Executive Director Department of Professional Regulation Board of Medicine 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact The Petitioner applied for licensure by endorsement in the State of Florida on October 30, 1992. The Petitioner is a medical doctor licensed in the State of New York. He completed his medical school training in the Dominican Republic and completed a residency in internal medicine at the Lincoln Memorial and Mental Health Center in New York, New York. He was found by his supervising physician, Dr. Gernsheimer, to be a superior physician. Dr. Gernsheimer found that he was extremely competent in terms of his medical knowledge, skills, and clinical judgment. He found the Petitioner to be very honest and forthright and that he related well to patients and colleagues in a compassionate, pleasant, and cooperative demeanor. Dr. Gernsheimer recommends him to the Florida Board of Medicine as being an outstanding physician. Upon his completion of the internal medicine residency program under Dr. Gernsheimer, the Petitioner, in a span of only two months, was able to successfully pass his board certification examinations in internal medicine and, thus, became a diplomate of the American Board of Internal Medicine. He thereafter embarked on a residency training program in emergency medicine, which he is currently engaged in. The Petitioner also participated briefly, for a period of five months, in a residency program in internal medicine at the Jersey City Medical Center, located on Baldwin Avenue, in Jersey City, New Jersey. His evaluations by his supervising physician ranged from unsatisfactory to marginal to satisfactory in the various aspects of that program for which he was evaluated. He was evaluated by Dr. Danato, the Director of the Department of Medicine, as having a fund of medical knowledge which would not support a satisfactory rating in all categories. The Petitioner was described by Dr. Danato as well-motivated, with good humanistic qualities and as one who worked hard but could not overcome some of the major deficiencies in a demanding program. Dr. Danato advised him, apparently, to concentrate on his areas of deficiency and after correcting these, to go forward with his education. Because of his lack of success and, apparently, some friction with a supervisor in that program, the Petitioner resigned from the program after approximately five-months duration. He was in that residency training program from July 1, 1988 to November 30, 1988 at the Jersey City Medical Center. The application that the Petitioner submitted on October 30, 1992 requested, on page two of the application, that the Petitioner list all places of residence during all periods in medical school and postgraduate training. The application requested that he account for all times from the date of graduation from medical school to the present and that he not leave out any time. The application, at page three, requested that he list all practice and employment experience from the date of graduation from medical school to the present date, that is, the date of application. The Petitioner failed to list on his initially-filed application where he resided during the residency program, of five-months duration, at the Jersey City Medical Center. He failed to show the period of time in which he participated in the program on that application, as initially submitted. He did not list his participation in the program under the post-graduate training section of his application, on page two thereof. He did not list that participation under the "practice and employment" section on page three of the application. The Petitioner admitted omitting the information, referenced above, regarding his training for five months in the residency program of the Jersey City Medical Center. The Petitioner believed that "practice", as inquired about on the application, meant "practice being having finished residency and being in private practice for five or six years." By this, he meant that it was his belief that "practice" meant actually practicing as a fully-qualified physician in private practice treating patients. This is why the Petitioner stated on page three of his application, "I held no job or position in medical field during this time." The Petitioner admitted that this was incorrect. He contends that at the time, he wrote the statement and, as to the other questions on the application, failed to disclose his participation in the subject residency program, he did not believe that it constituted a "job or position" working in the medical field. He believed that terminology referenced actually working in a career position as a private physician caring for patients and believed that since he did not receive any credits for the aborted residency program, that that was not the sort of medical experience information that the question sought to elicit. The Petitioner's address while he participated briefly in that New Jersey Medical Center residency program was on Baldwin Avenue, and that address was not listed for the same reason. Thus, the Petitioner submitted his application for licensure to practice medicine in Florida in this fashion, and it was received by the Respondent Board on November 13, 1992. Some 83 days later, on February 4, 1993, the Board of Medicine sent a letter to the Petitioner listing certain deficiencies in the application and requesting additional information. On February 9, 1993, the Petitioner responded to the February 4, 1993 letter making a complete explanation concerning his tenure in the residency program in internal medicine,during 1988, at Jersey City Medical Center. Although the Board asserts in the denial order that he knowingly omitted a year of training from his application, during which he received less than favorable evaluations, that is not accurate. In fact, he was in the training program for a period of five months and received unfavorable or less than favorable evaluations and voluntarily resigned from the program. In his explanation and in his testimony at hearing, he explains that he did not list the program nor the related address nor did he list his experience in the five months of the aborted residency program as a "job or position in a medical field" (from April 1, 1986 to May 30, 1989) because he had a good-faith belief that the five months in the aborted residency program which he never completed and received no credit for did not qualify as a experience or education which the application sought to elicit. He believed that since he did not complete the program and received no credit for it that it was simply irrelevant and, therefore, mistakenly and inadvertently failed to list it in his application. Prior to his application becoming complete on July 9, 1993, in his response on or after February 9, 1993 to the February 4, 1993 Board letter, he made the above-referenced full explanation of his experience in that residency program and his residence address during the period of time in dispute. The Hearing Officer has observed the candor and demeanor of the Petitioner when he testified at hearing and has thoroughly read and considered the explanation provided in Petitioner's exhibits, as well as the superior recommendation and evaluation from his supervising physician in the residency program in internal medicine which he completed. That superior recommendation is corroborated by the fact that he was able to pass his board examinations, to be board certified in internal medicine, only two months after completing that program. After considering the evidence and the candor and demeanor of the Petitioner on the witness stand, the Hearing Officer is convinced that he is telling the truth and that his testimony is credible. Therefore, it is accepted, and the Hearing Officer finds that his deletion of the information in the questions on the application relied upon by the Respondent was not due to any intent to conceal part of his medically-related experience merely because it was less than satisfactory nor was it as a result of any effort to make a misrepresentation to the Board. The Hearing Officer accepts the Petitioner's representation and explanation at hearing and in his response to the February 4, 1993 letter of inquiry as credible. That representation and explanation was not refuted by substantial, competent testimony or evidence and is, therefore, accepted as fact. On July 9, 1993, the Petitioner's application was deemed "complete" by the Board and at that time contained all information requested by the Board concerning the Petitioner's training and experience, including, specifically, the five months of residency at Jersey City Medical Center at issue herein. The Petitioner was then requested to personally appear before the Credentials Committee of the Board of Medicine. He was scheduled to appear before that body on September 17, 1993, but he cancelled the appearance or re-scheduled it on his own volition. The Petitioner, thereafter, was noticed on October 22, 1993 requesting his personal appearance before the Credentials Committee of the Board of Medicine on November 19, 1993. The Petitioner testified under oath before the Credentials Committee on that date and freely admitted and acknowledged that he had omitted the information, referenced above, from his application. The Committee then voted to recommend denial of licensure. The Board of Medicine met on December 4, 1993, 148 days after the application was considered "complete" and voted to deny the application. The reason for denial was ". . . you knowingly omitted a year of training from your application during which you received less than favorable evaluations." In fact, however, as found above, the relevant training which he omitted from his first application filing was for a period of five months, and not a year. Further, the Petitioner has more than satisfied any perceived deficiency in his level of skill and training in the field of internal medicine, if such is the subject of the reference in the Board's denial order to "less than favorable evaluations". He successfully completed the residency program in internal medicine at Lincoln Memorial and Mental Health Center, receiving a superior evaluation and recommendation from his supervising physician in that program and becoming board certified in internal medicine by successfully passing the relevant examination with his first effort, approximately two months after completing the residency program.
Recommendation Based on the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is RECOMMENDED that a Final Order be entered granting the Petitioner's license to practice medicine in the State of Florida. DONE AND ENTERED this 3rd day of October, 1994, in Tallahassee, Florida. P. MICHAEL RUFF 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 4th day of October, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-1236 Petitioner's Proposed Findings of Fact 1-10. Accepted. Respondent's Proposed Findings of Fact 1-11. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter, including the finding that no fraudulent intent or scienter was attributable to the Petitioner's initial application filing in the manner in which he filed it and the finding that he voluntarily supplied all missing information before the application was complete and before the initial agency action occurred. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter in the sense that the subject matter of this proposed finding of fact was not intentionally false on the part of the Petitioner. Accepted. Accepted, except as to the date the information was received by the Board. Accepted. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter, which are controlling. Rejected, as not supported by a preponderance of the evidence of record and as subordinate to the Hearing Officer's findings of fact on this subject matter. COPIES FURNISHED: William M. Furlow, Esq. KATZ, KUTTER, ET AL. 106 East College Avenue Tallahassee, FL 32301 Gregory A. Chaires, Esq. Office of the Attorney General The Capitol, PL-01 Tallahassee, FL 32399-1050 Dr. Marm Harris Executive Director Board of Medicine Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack McRay, Esq. Acting General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
The Issue Florida Administrative Code Rule 59C-1.018(3)(c) requires that a request for an extension of a CON's validity period be made 15 days in advance of the period's expiration (the "15-Day Requirement.") The issue is whether the Agency for Health Care Administration should waive the 15-Day Requirement for Miami Jewish Home.
Findings Of Fact CON 9893 and its Construction Timeline On June 29, 2007, AHCA awarded CON 9893 (the "CON") to MJHHA. The CON authorized MJHHA to establish a 30-bed long term acute care hospital (LTCH) in Dade County. The Agency determined that the LTCH authorized by the CON was needed and would be of benefit in the service district (AHCA Acute Care District 11) where it would be located. It also determined that the LTCH would enhance access to health care in conformance with the goals of the Health Facilities and Services Development Act. The determination followed a contested comparative review proceeding at DOAH in which it was found that Miami Jewish Home had "demonstrated need for its project through a thorough and conservative analysis." MJHHA Ex. 26, p. 49, para. 106. All findings of fact and conclusions of law of the administrative law judge in the Recommended Order were accepted by the Agency in its Final Order that approved MJHHA's CON application. Un-rebutted evidence in this proceeding, moreover, establishes that the need for the LTCH continues to exist in AHCA Acute Care District 11. Miami Jewish Home proposed to locate the LTCH on its Douglas Gardens Campus, the site of a broad array of health and social services that span the continuum of health care. The continuum includes services related to community outreach, independent and assisted living facilities, nursing home diversion, chronic illness, outpatient programs, acute care hospital, rehabilitation and post-acute care, Alzheimer's disease, pain management, skilled nursing and hospice. The community surrounding the campus is an area known as "Little Haiti," one of the most densely populated areas of Dade County. The community is primarily low-income. It is a federally-designated "medically underserved area." Miami Jewish Home is a "safety net" provider of health care services, one of only 20 or so in the entire state. Its skilled nursing facility is the largest provider of Medicaid skilled nursing services in the state. Miami Jewish Home operates Florida's only Teaching Nursing Home program. Medical students, interns, and other health professionals rotate through the service program in the nursing home and hospital on a regular basis. In its teaching capacity, Miami Jewish Home serves as a student and resident training site for the University of Miami and Nova Southeastern University Medical Schools and the Barry University, Florida International University and University of Miami nursing schools. The LTCH was proposed as a hospital-in-a-hospital (HIH), that is, it would be part of an existing hospital and constructed within the hospital's existing structure rather than as a free-standing facility. Its status as an HIH meant that the construction required for it to achieve operable status would be more in the nature of renovation as opposed to breaking new ground as in the case of a free-standing LTCH facility. The Construction Deadline Paragraph (a) of Subsection 408.040(2), Florida Statutes, requires successful applicants for CONs to commence construction within 18 months of the CON's issuance. If construction is not timely commenced, the CON validity period expires and the CON terminates. By operation of law, therefore, December 28, 2008, was the deadline for the commencement of construction (the "Commencement of Construction Deadline" or the "Deadline"). See Finding of Fact 1. The Approach of the Deadline In the wake of the issuance of the CON, Miami Jewish Home worked to develop the project approved by the CON and to implement it. Shortly after the award of the CON, Miami Jewish Home contracted for the construction and development work with an architectural firm, Louis Sousa & Associates ("Sousa"). The firm was engaged "to do preliminary drawings to cost out [the] project and get … more detail on … other issues that [might] be encountered in the renovation of the area." Tr. 68. Garrett's Construction was identified as the construction company that would perform the construction on the basis of the Sousa drawings. After the issuance of the CON, a new Chief Executive Officer took the helm at MJHHA. Eventually, Sousa completed a full scale set of drawings that included changes and expansions in the program that had not been shown on the drawings that accompanied the CON application. Among the expansions were the addition of an elevator tower, a drive-through canopy and a second operating room in which the new CEO took an interest because of his development background. The completed drawings were submitted to the City of Miami for approval and Sousa was engaged to be the architect during construction. There were several surprises during the process of developing the drawings. These were described at hearing by Mr. Knight, MJHHA's Chief Financial Officer: It was identified that the backup generator located in the Chernin Building was not sufficient and could not bear the load to support a 30-bed acute care hospital [the LTCH.] * * * In addition . . . , it was identified that the current 02 or oxygen tank farm that we have on the west side of the property was problematic. It was freezing up. . . . it was advised . . . by an external vendor that it would not be able to accommodate the additional 30 beds [beyond] the 30 beds … in operation. *** It was a little over a million two [hundred thousand dollars] for both of those projects . . . , a significant increase over what we had anticipated to be the total cost of the project. Tr. 69-70. Submitted in June of 2008 to the City of Miami, permits for the generator and the 02 farm project were received in December of 2008. The 02 farm project started in the third week of March 2009 and was fully underway at the time of the final hearing in this case. Demolition for the generator project was scheduled to commence within two weeks of the conclusion of the hearing, that is, in April of 2009. By December of 2008, however, none of the construction plans had been submitted for review to AHCA. (In fact, none had been submitted by the last day of final hearing in this case, March 25, 2009.) AHCA's review "of plans . . . is an essential part of implementing a project that requires construction." Tr. 263. Following cross-examination on this point at hearing, Mr. Gregg was asked by AHCA's counsel to review the definition of "commenced construction" in the Health Facility and Services Development Act: "Commenced construction" means initiation of and continuous activities beyond site preparation associated with erecting or modifying a health care facility, including procurement of a building permit applying the use of agency-approved construction documents, proof of an executed owner/contractor agreement or an irrevocable or binding forced account, and actual undertaking of foundation forming with steel installation and concrete placing. § 408.032(4), Fla. Stat. (emphasis added.) After his review of the definition, Mr. Gregg explained that construction cannot be commenced without AHCA plan review because "it's a[]. . . technical . . . area that requires the expertise of the people in [AHCA's] office of plans and construction to give a project an okay from the health care perspective before it proceeds to the point of construction." Tr. 319. Plans were not submitted and construction was not commenced by the Deadline because of difficulty in financing the construction. The more than one million dollars required to update the generator system and the O2 Farm, unanticipated at the time of the CON approval, contributed to the difficulty. In the main, however, the delay was due to what the stipulation of the parties describes as "unique in the history of Florida's CON regulation," that is, the financial crisis of which the public became generally aware in the early fall of 2008. Distress in the Financial Markets In the early autumn of 2008, as the Commencement of Construction Deadline neared, the financial markets in the United States became unstable. World-wide financial markets followed suit. The gravity of the financial situation has been widely acknowledged to be the most serious since the Great Depression that immediately preceded World War II. During the years that Florida's CON regime has been in place, there has been no time period during which economic distress has been as severe as the period that commenced in September of 2008 and continued at least into early 2009, after the expiration of the Deadline. The problems in financial markets made further development of the CON unreasonable. Miami Jewish Home had proposed and was approved to pay for the costs of the implementing the LTCH from its cash on hand and other assets. At the time of the approval, the "cash-on-hand" approach was reasonable. It continued to be achievable, despite cost increases, until the late 2008 financial crisis' serious negative impact on MJHHA's investments. Loss in Investment Income Miami Jewish Home's un-audited balance sheet, admitted into evidence as MJHHA's Ex. 1, shows a steep reduction in Net Assets over the six months from June 30, 2008 to December 31, 2008, the six months in which the financial crisis occurred. The Balance Sheets June 30, 2008 column (audited) shows "Net Assets" of $101,363,000. The 12/31/2008 column shows "Net Assets" of $82,209,000 a reduction in net assets of between $19 million and $20 million. Over $12 million of the loss was due to losses suffered by MJHHA's endowment and foundation account which represents Miami Jewish Homes investments. This "investment account" was $72 million on June 30, 2008 and had shrunk to $50 million by the end of 2008. At the time of hearing, the investment account had lost another $40 million, making MJHHA's decision not to proceed with the LTCH appear to be a prudent one at the time of final hearing. The decision was prudent not merely because of a loss of funds. The impact of the loss of investment funds was compounded for Miami Jewish Home because of the use of income from those funds to keep MJHHA's nursing home operation afloat. Mr. Knight explained, "when the significant decrease in cash occur[red], that also reduced the income potential on that cash and ultimately the subsidy back to the nursing home." Tr. 74. Miami Jewish Home's nursing home operation's financial stability was also threatened by Medicaid reimbursement "looking to be getting worse." Tr. 75. With the Deadline approaching, the situation was summed up by Mr. Knight: [B]etween the incremental costs that were identified [with regard to the generator and the O2 farm] and the significant decrease in our ability to fund from cash [the loss of investment return produced by the investment account] and ultimately the . . . loss on the nursing home operations, in September and October of '08 [MJHHA] began the process of seeking another developer or another potential acquirer of a certificate of need. Tr. 77. Looking for a Purchaser of the CON As Miami Jewish Home became aware of the deterioration of its financial situation, it began to seek alternative means to finance the development of the LTCH, including standard loans and alternative financing. It approached its commercial banker SunTrust. The deterioration of MJHHA's finances, however, was occurring at the same time as "the credit crunch came into place." Tr. 96. SunTrust was not interested in financing the LTCH. With the realization that it could not reasonably fund the development of the LTCH and still believing it to be a needed service, MJHHA began to seek out other operators and developers. At first, MJHHA looked for a known LTCH company or a compatible provider to develop the LTCH on the Miami Jewish Home campus. Promise Health Care and Mt. Sinai were approached. For various reasons, no firm commitments were forthcoming. As autumn wore on, Miami Jewish Home continued to make progress toward the permits necessary to develop the LTCH, but it became clear it was not in a financial position to go forward with construction. It scheduled a call with AHCA for December 18, 2009, to inform AHCA that it would be abandoning the project. Nearly resigned to the loss of the project, MJHHA management met with principals of the Sanderling group in mid- December 2008. Sanderling showed a desire to work through the details of the LTCH project with Miami Jewish Home. A general agreement was reached between Sanderling and Miami Jewish Home by the time of the scheduled call with AHCA. When the call took place on December 18, 2008, instead of relinquishing the CON, MJHHA informed AHCA that there was a provider compatible with Miami Jewish Home that intended to purchase the CON and develop the LTCH. During the call, the Agency responded verbally that MJHHA should do whatever it needed to do to keep the project moving forward. Miami Jewish Home took immediate action. It submitted a written request for the extension of the validity period of the CON. The December 18 Written Request for an Extension On the same day as the call, Miami Jewish Home provided AHCA with written notice of intent to transfer the CON. The letter informed AHCA of MJHHA's financial difficulty due to "additional costs . . . required to develop the LTCH which were material, . . . the large (20%)losses to the Homes endowment . . . and] [g]iven these changed circumstances, . . . [that] the Home . . . cannot justify the development costs to implement [the CON] without impacting other services." MJHHA Ex. 11. Dated December 18, 2009, the letter bears the heading, "Via Electronic Mail". Id. The letter went one step further. It specifically noted that paragraph (c) of Florida Administrative Code Rule 59C-1.018(3) (the "Transfer Extension Paragraph"), provides that a 60-day extension of the life of the CON would be granted upon receipt of a notice and application for a transfer if the notice and application were received 15 days prior to the deadline for commencement of construction. After quoting the paragraph verbatim, the letter asked for relief under the variance and waiver provision of the Administrative Procedure Act, "[p]ursuant to Section 120.542, F.S., we are requesting a waiver of the 15 days prior notice provision." Id. at 2. Noting that "there is no statutory requirement for the 15 days notice," the letter asserted that the notice and proof of the closing of the acquisition would be submitted "with the initial transfer application as soon as possible and before the December 28, 2008 termination date." Id. The written request that comprised the letter (the "December 18 Written Request") was furnished five days later than required by the Transfer and Extension Paragraph. Had it been submitted on December 13, 2008, instead of December 18, 2008, it would have been timely. Before AHCA responded in writing to the December 18 Written Request, Miami Jewish Home took further action. It submitted a more formal request for relief: an emergency petition. The Emergency Petition On December 24, 2008, six days after the submission of the December 18 Written Request, Miami Jewish Home filed with AHCA a document entitled, "Emergency Petition for Variance of Waiver of Rule 59C-1.018(3)(c), F.A.C." (the "Emergency Petition"). See MJHHA Ex. 12. Denominated an emergency "because the CON is scheduled to terminate on December 28, 2008," id. at 2, the Emergency Petition pointed out that "the 90 days typically provided for review of petitions for variance or waiver would not allow the resolution of this petition." Id. Substantially similar to the December 18 Written Request, the petition expressed one new fact and pointed out an additional significant feature for AHCA's consideration. The new fact was that the initial application for transfer of the CON to Sanderling had been submitted to AHCA on December 24, 2009, along with the petition. The featured consideration was asserted in the petition's final paragraph: Granting the waiver will foster the goals of the Health Facility and Services Development Act as stated in the Recommended Order and Final Orders in DOAH Case No. 06-557 (AHCA No. 2006000716) approving CON 9893. Id. at para. 12., p. 4 (emphasis added.) This assertion amounted to the claim that the statute underlying the Transfer Extension Paragraph and the entire Termination and Extension Rule is not merely the law implemented by the rule but the entire Health Facility and Services Development Act. The Act The Act is a subset of one part of Chapter 408, Florida Statutes. The chapter governs "Health Care Administration" and is composed of Parts I - IV. Part I consists of Sections 408.031 through 408.7071. Fifteen sections, Sections 408.031 through 408.045, comprise the Act. "Sections 408.031-408.045 shall be known and may be cited as the "Health Facility and Services Development Act." § 408.031, Fla. Stat. Of the Act's fifteen statutory sections, several stand out as having been applied by the Agency and the DOAH in the process that led to the approval of Miami Jewish Home's application and the award of the CON. These include Section 408.037, which prescribes the content for a CON application, Section 409.035, which delineates the criteria for review of a CON application, and Section 408.039, which establishes the process for review of a CON application. The Act recognizes the transfer of CONs from the holder of a CON to another. See § 408.042, Fla. Stat., the catchline of which is: "Limitation on Transfer." This recognition is reflected in the section's opening sentence: "The holder of a certificate of need shall not charge a price for the transfer of the certificate of need to another person that exceeds the total amount of the actual costs incurred by the holder in obtaining the certificate of need." (emphasis added.) One of the 15 provisions of the Act bears particular relevance to this proceeding: Section 408.040, Florida Statutes, the "Conditions and Monitoring" Section. Section 408.040, Conditions and Monitoring Section 408.040 has two subsections: the first is concerned primarily with "conditions," the second with monitoring." The section, accordingly, bears the catchline, "Conditions and monitoring." Subsection (2), the "monitoring" subsection, is directly at issue in this case because it is cited in Rule 59C- 1.018 as its "law implemented." It provides, in pertinent part: (2)(a) Unless the applicant has commenced construction . . . , a certificate of need shall terminate 18 months after the date of issuance. The agency shall monitor the progress of the holder of a certificate of need in meeting the timetable for project development specified in the application, and may revoke the certificate of need, if the holder of the certificate is not meeting such timetable and is not making a good faith effort, as defined by rule, to meet it. * * * (c) The certificate-of-need validity period for a project shall be extended by the agency, to the extent that the applicant demonstrates to the satisfaction of the agency that good-faith commencement of the project is being delayed by litigation or by governmental action or inaction with respect to regulations or permitting precluding commencement of the project. § 408.040(2), Fla. Stat. Because the subsection is concerned with termination and extension of the deadlines for commencement of construction of CON project, the subsection will be referred to in this order as the "Termination and Extension Subsection." Paragraph (a) of the Termination and Extension Subsection focuses on the 18-month CON validity period during which the agency is to monitor the progress toward project development. It provides for revocation of a CON if a good faith effort is not being made toward meeting the 18-month timetable. It further provides for termination of the CON at the end of the 18-month CON validity period. Paragraph (c) of the Termination and Extension Subsection focuses on when the time for termination may be extended and the circumstances for such an extension: in cases plagued by litigation or when governmental action or inaction causes delay. One observation of the Termination and Extension Subsection is of particular import to this proceeding. It is silent with regard to extensions of a deadline for commencement of construction when a CON is transferred. Although not mentioned as a basis for an extension in the Termination and Extension Statute, transfer of a CON is a basis for an extension under paragraph (c) of Section (3) of Florida Administrative Code Rule 59C-1.018 (the "Termination Rule"). The Termination Rule The Termination Rule is divided into three sections. The first, denominated "Validity Period of Certificate of Need," restates the Termination and Extension Subsection's prescription that a CON shall terminate 18 months after issuance "unless the holder meets the applicable conditions for an extension set forth in Section 408.040(2), F.S., and this rule." Fla. Admin. Code R. 59C-1.018(1). The second section of the Termination Rule, called "Undertaking a Project Authorized by a Certificate of Need," prescribes minimum requirements to prevent termination of a CON and the expiration of its validity period. These requirements govern both new construction or renovation projects and non- construction projects that involve capital expenditures. The third section of the Termination Rule governs extension of a CON's validity period. It is divided into three paragraphs. Paragraph (a) deals with extensions when there is a demonstration that "good faith commencement of the project is being delayed by litigation or governmental action or inaction," Fla. Admin. Code R. 59C-1.018(3)(a), related to regulation which precludes commencement. Delay caused by litigation or government are the two bases for an extension provided by the statutory Termination and Extension Subsection. Unlike the case where extensions are sought because of a transfer, the filing of a request under paragraph (a) does not extend the validity period of a CON. A paragraph (a) extension request requires the Agency to pay close attention to a number of details in its review. The requester must make a showing of good faith. Other details the Agency must examine are revealed by the following provisions: The request must provide the agency a detailed explanation of the problem and a plan of action to be undertaken by the holder to resolve the problem within the time frame requested. Land zoning issues will be considered for extension of the certificate of need validity period beyond the 18 months, if the certificate of need holder can demonstrate that action has been initiated to obtain proper zoning for the proposed site for the facility, and that such action was timely with respect to the requirements for obtaining proper zoning. Untimely filing of submission of plans and requests for local and state permits, based on the processing time required by the state and local governments for such plans and permits, will not be considered as justification for an extension beyond the 18-month period. Fla. Admin. Code R. 59C-1.018(3)(a). Paragraph (b) contains yet another consideration for the Agency in cases of extensions requests on the basis of litigation. The extension "shall be granted for the actual time of the validity period which is equivalent to the period of litigation, including appeal." Fla. Admin. Code R. 59C- 1.018(3)(b). Paragraph (c) (the "Transfer Extension Paragraph") deals with extensions requests in the case of transfers, as in this case: Upon written request from the holder of a certificate of need received at least 15 days prior to the termination date of the certificate of need, and upon submission of a transfer application by the proposed transferee, the agency will extend the validity period of the proposed transferred certificate of need for a period of 60 days to ensure that the certificate of need remains valid throughout the agency's timetable for review of the transfer application. Only one such request for a 60 day extension will be granted under the provisions of this subsection. Fla. Admin. Code R. 59C-1.108(3)(c) (emphasis added.) The terms of the Transfer Extension Paragraph that govern "transfer extensions" are significantly different from the terms of paragraphs (a) for other extensions. For one, there is no showing of "good faith" required on the part of the holder of the CON as there is with paragraph (a). Instead, Paragraph (c) directs extension upon the submission of two documents: a written request and a transfer application ("the agency will extend the validity period . . .", emphasis added). By comparison, paragraph (a) is written in "discretionary" language: "[e]xtensions . . . may be requested by a certificate of need holder . . .". (emphasis added.) Paragraph (a) extensions require much more review by the Agency; the paragraph sets up points at which the Agency may exercise discretion in turning down the request. In addition to the "good faith" demonstration by the holder of the CON, there must be a detailed explanation offered and a plan of action to resolve the problem within the time frame requested. In contrast, review triggered under the Transfer Extension Paragraph by a written extension request is minimal. All the Agency need determine is whether a transfer application has been submitted by the transferee and that no other requests on the basis of a transfer have been granted previously. Miami Jewish Home seeks a waiver from only one clause in the Transfer and Extension Paragraph: that its written request must have been received fifteen days prior to the termination date of the CON (the "15-day Requirement"). It makes the request for the waiver under Section 120.542, Florida Statutes. Section 120.542: the Variance and Waiver Statute Section 120.542, Florida Statutes (the "Variance and Waiver Statute") was enacted in 1996 as part of a major revision to Chapter 120, Florida Statutes. Described as perhaps "the most significant aspect of the revised APA," Loosening the Chains that Bind: the New Variance and Waiver Provision in Florida's Administrative Procedure Act, Vol. 24, at 353, Florida State University Law Review (1997), the section sets forth the legislative intent in two straightforward sentences: Strict application of uniformly applicable rules requirements can lead to unreasonable, unfair and unintended results in particular instances. The Legislature finds that it is appropriate in such cases to adopt a procedure for agencies to provide relief to persons subject to regulation. § 120.542, Fla. Stat. The operative part of the Variance and Waiver Statute is found in subsection (2), the first sentence of which reads, "Variances and waivers shall be granted when the person subject to the rule demonstrates that the purpose of the underlying statute will be or has been achieved by other means by the person and when application of a rule would create a substantial hardship or would violate principles of fairness." The Variance and Waiver Statute provides a process for agencies in dealing with variance and waiver petitions. The agency is to give notice to the Department of State within 15 days of receipt of the petition. The Department of State, in turn, publishes notice of the petition in the first available issue of the Florida Administrative Weekly. See § 120.542(6), Fla. Stat. Within 30 days of receipt of the petition, the agency is to review it and request additional information it is permitted to require, see Section 120.542(7), Florida Statutes, "except for requests for emergency variances or waivers". Id. Agency Response to the December 18 Written Request The Agency did not rule on the December 18 Written Request prior to the expiration of the CON's validity period on December 28, 2008. The December 18 Written Request was hand-delivered to Mr. Gregg's office six days before the filing of the Emergency Petition (December 24, 2008). Mr. Gregg took the December 18 Written Request to the legal staff and said "please respond to this." Tr. 265. Before any response to the December 18 Written Request was issued in writing, the Emergency Petition was filed with AHCA together with the transfer application. Agency Response to the Emergency Petition The timing of the filing of the Emergency Petition, Christmas Eve, was problematic for the Agency. Mr. Gregg explained at hearing: [B]eing the holiday season, various key people were not there . . . The chief facilities counsel had broken his foot. The deputy secretary was out before Christmas. I was out after Christmas. This is a perfect example, apart from the fact that we all are juggling many different subjects, of why we would need [a] review period [as called for by the 15-Day Requirement] in order to develop an opinion about any request for extension or a request for a variance and transfer. Tr. 273. Since Mr. Gregg was not available to review the Emergency Petition the day of its submission, it was reviewed by the Deputy Secretary and Acting General Counsel. They formulated the Agency response: denial. Later, after Mr. Gregg had returned to the office and read the Emergency Petition, "we all agreed it was not something that we could grant." Tr. 266. In the wake of the receipt of the Emergency Petition and the transfer application, the Agency followed prescribed process. It issued a CON application omissions letter to Sanderling. Notice of the receipt of the Emergency Petition was published on January 16, 2009 in the Florida Administrative Weekly. Notice was also published on the Agency internet site. In the meantime, AHCA notified counsel for MJHHA that the CON had expired. The Agency letter, dated January 15, 2009, states: It has been determined that the holder of CON Number 9814 for the above referenced project [CON 9893] has violated the provision of section 408.040(2)(a), Florida Statutes . . . and Rule 59C-1.018(2) Florida Administrative Code in that the project has not commenced continuous construction, as defined in section 408.032(4), F.S., by the December 28, 2008 termination date. Therefore the CON has expired. * * * The final determination on your request for an emergency waiver could have an impact on whether or not this CON remains valid. Exhibit "E" attached to MJHHA Ex. 13. On January 22, 2009, written comments in opposition to the Emergency Petition were received from Victoria Healthcare, Inc., a wholly owned subsidiary of Select Medical Corporation and from Kindred Hospitals East, L.L.C. No comments were received in support of the petition. On January 23, 2009, the Agency issued a Final Order denying the Emergency Petition. The Agency's Final Order The findings of fact in the Final Order relate the history of the CON and the filing of the Emergency Petition. The order does not make reference to the December 18 Written Request. The findings of fact also cite and quote text from relevant statutory and rule provisions. The sixth and last finding of fact in the final order is: Since CON 9893 expired on December 28, 2008, Rule 59C-1.018(3)(c) required . . . the request and transfer application be received by the Agency no later than December 13, 2008. The petition and transfer application were received on December 24, 2008, eleven days late. MJHHA Ex. 13, at 2-3. The Final Order does not identify the specific statute underlying the Termination and Extension Rule. Nonetheless, it concludes with regard to the first prong of the Waiver and Variance Statute that the Emergency Petition comes up short: Beyond the bare, unsupported, and conclusory allegation in paragraph 9 of the Petition that "requiring the CON to terminate would be detrimental to the goals of the Health Facility and Services Development Act and the accessibility and quality of health care services to the community," and a reference in passing to the Recommended and Final Orders in DOAH Case No. 06-0557 CON, the Petition does not address or provide specifics explaining how waiving the 15 day prior notice rule requirement would achieve the purpose of the statute. Id. After its conclusion that MJHHA failed to meet the first prong, the Final Order reflects the Agency's conclusion that it was not necessary to address the second prong of the Variance and Waiver Statute. The order, however, reflects the Agency's decision to deal with the second prong "briefly." MJHHA Ex. 13, at 5. The Final Order finds that MJHHA failed to demonstrate that application of the rule would work create a substantial hardship or that principles of fairness had been violated. Accordingly, the Final Order denies the Emergency Petition. Section 120.57(1) Petition The Final Order's denial of MJHHA's request for a variance was challenged by a petition filed on February 2, 2009 (the "Section 120.57(1) Petition"). In the Section 120.57(1) Petition, MJHHA characterizes the December 18, 2009 Written Request, as a "written request" within the meaning of the term in the Termination Rule and characterizes the Emergency Petition as a "second" written request. The Section 120.57(1) Petition, of course, raises the issue of whether it demonstrated that both prongs of the Variance and Waiver Statute had been met. It also raises a number of issues surrounding the emergency nature of the Emergency Petition, whether the CON terminated, and whether there is a statutory basis for the 15-Day Requirement. See Section 120.57(1) Petition, at 7-9. Stipulated Facts Prior to hearing, the parties filed a joint pre- hearing stipulation. The stipulation contains a section entitled, "Facts Which Are Admitted and Require No Proof at Hearing." The section contains the following: AHCA is the state agency responsible for the administration of the Certificate of Need program in Florida. AHCA did not provide MJHHA copies of the relevant statutes and rules when it was presented with a request for relief (the December 18 letter) from the provisions of the rule. (Item a of the petition) The current financial crisis is unique in the history of the Florida's CON regulation. (Item g of the petition) Joint Pre-hearing Stipulation, at. 4. Final Hearing At final hearing, the Agency identified the statute it believes underlies the Termination and Extension Rule: Section 408.040(2), Florida Statutes, referred to in this order as the Termination and Extension Subsection. The Agency offered further evidence of the context in which its decision was made. Mr. Gregg opined that Miami Jewish Home was not positioned to request an extension. Construction plans had not been submitted for AHCA review. The extension request was first presented to AHCA ten days before the Construction Deadline; normally, AHCA is informed months in advance of the need for an extension. The Agency denied the request in an "attempt to be consistent and treat each situation in the same way." Tr. 274. Mr. Gregg further opined: And in the case of CON, given that we know that the financial situation is very widespread, if we were to be too liberal in our application of these laws and rules, I can guarantee you that we would quickly have other people asking us to do a similar thing, based upon financial problems. And we don't feel we have [that] flexibility . . . . In recognition of that, we have proposed . . . a total extension of the CON validity period that would extend it from 18 month to three years. And that is included in a bill that is generally referred to in this season as the agency's regulatory reform bill. [Without such legislation] we don't think we have authority to [give MJHHA an extension.] Tr. 275-6. Mr. Gregg also mentioned another instance in which a CON holder "had communicated . . . that they have financial problems . . . but they also happen to have local planning and zoning issues and environmental issues as well." Tr. 274. That instance was a case involving Hillsborough Extended Care, LLC. The Hillsborough Case On August 30, 2005, CON 9814 was issued to Hillsborough Extended Care, LLC, ("Hillsborough") to relocate 120 existing community nursing home beds from one facility in Tampa to a new freestanding 120-bed facility. The deadline for commencing construction of the project authorized by CON 9814 was February 28, 2007. Prior to November of 2007, Hillsborough invoked the Termination and Extension Rule on four separate occasions. Extensions were granted each time on February 1, May 17, June 15, and August 13, 2007. The letter granting the last extension informed Hillsborough that the CON validity period expired October 7, 2007 "and specifically stated that to request another extension pursuant to Rule 59C-1.018, Florida Administrative Code, that the extension request must have been received by the Agency no later than October 7, 2007." MJHHA Ex. 21 at 2; see also the fourth page of Exhibit "B" attached to MJHHA Ex. 21. On October 16, 2007, nine days late, Hillsborough filed a fifth extension request. The Agency sent a letter to Hillsborough on October 23, 2007. It denied the request and informed Hillsborough as follows: It has been determined that the holder of CON Number 9814 . . . has violated the provisions of section 408.040(2)(a), Florida Statutes . . . and Rule 59C-1.018(2), Florida Administrative Code in that the project has not commenced continuous construction, as defined in Section 408.032(4), F.S., by the October 22, 2007 termination date. Therefore, the CON has expired. Fifth page of Exhibit "B" attached to MJHHA Ex. 21. Hillsborough filed an emergency petition for a variance from or a waiver of the Termination Rule. The emergency petition invoked the Variance and Waiver Statute. The emergency petition recognized the law implemented by the Termination Rule to be the Termination and Extension Subsection, Section 408.040(2), Florida Statutes. With regard to the "underlying statute," Hillsborough took a position similar to that of Miami Jewish Home in this proceeding, that is, that the underlying statute is the Act. See MJHHA Ex. 20 at 2. The emergency petition asserted that in support of the end promoted by the Act, "the orderly development of health facilities and services in the State," id., the Agency had determined a need for the nursing home beds authorized to be relocated by CON 9814. The Agency issued a Final Order denying Hillsborough's emergency petition on December 28, 2007 (the "Hillsborough Final Order of December 28, 2007.") The Agency found that although a need for the nursing home beds had been determined when CON 9814 was issued, "there is no longer a need for these beds in Hillsborough County." MJHHA Ex. 21. The Agency at first, see Finding of Fact 86, below, concluded that the statute underlying the Termination Rule was the Termination and Extension Subsection not the Act. The Agency in the order further concluded that while "it appears there may have been ongoing litigation or other matters pending relating to permitting which may have justified a fifth extension of CON 9814," id. at 5, that the issue was whether a variance from or waiver should be granted as to the 15-Day Requirement. The Agency recognized that the 15-Day Requirement is not statutory. See MJHHA Exhibit 21 at 6, para. 18: "[i]t is true that there is nothing in the statute explicitly requiring that CON validity extension requests by received at least 15 days prior to the extension date . . .". The Agency further concluded that Hillsborough did not demonstrate that the purpose of the underlying statute, the Termination and Extension Subsection, would be met by a variance from or waiver of the 15-Day Requirement. In fact, the Agency wrote an untimely request "is contrary to the purpose of the underlying statute, which requires the Agency to determine whether an extension is justified before the CON has expired." Id. at 7. The Agency expanded upon the meaning of the term, "underlying statute" when it wrote the following in the Hillsborough Extended Care final order: Moreover, the entire CON statute, found at Chapter 408, Part I, [the Act] is dedicated to the principle that a CON is granted when there is a demonstrated need. * * * Therefore, the purpose of the underlying CON statute [emphasis added] has not been met in this case: this district does not need these beds [any longer.] The issue, always, in the CON program is whether there is a need for a facility or service, not whether it would be desirable to have additional options and choices beyond that need. In this case, the need does not exist. The Petitioners have not demonstrated that they have met the purpose of the underlying statute. [emphasis added.] Id. at 7-8. Thus, the Agency concluded that the Act is the statute underlying the Termination Rule as well as the law implemented, a provision contained within the Act. The Hillsborough Final Order or December 28, 2007, accordingly denied Hillsborough's emergency petition. Hillsborough challenged the decision by filing two petitions for formal administrative hearings. On February 19, 2008, the Agency entered a second final order (the "Hillsborough Final Order of February 19, 2008.") It reports, "[t]he Agency and Hillsborough have reached a settlement by which the AHCA notices are superseded and Hillsborough is given an extension to begin continuous construction pursuant to the time line schedule included in the Settlement Agreement." MJHHA Ex. 22 at 2. The final order approves and adopts the Settlement Agreement as part of the final order. The Settlement Agreement in its "whereas" clauses describes action and inaction of the local government that justified an extension. See MJHHA Ex. 22, Settlement Agreement at 3-4. With regard to the 15-day Requirement that its earlier letter had found Hillsborough to have violated, the Settlement Agreement recites the following in a "whereas" clause: "the parties agree that AHCA has evenly enforced its fifteen day requirement for filing an extension request and did nothing incorrect in denying the late filed extension request and canceling the CON ...". Id. at 5. Neither the Hillsborough Final Order of February 19, 2008 nor the Settlement Agreement attached to it provides any explanation as to why the 15-Day Notice Requirement was no longer to be enforced against Hillsborough. The lack of explanation is particularly worthy of observation in light of the agreement that AHCA did nothing incorrect in enforcing it in the first place. The Settlement Agreement sets out a detailed schedule for plan review, commencing construction and continuing construction. Id. As for future extensions, the Settlement Agreement contained a few additional provisions that relate to circumstances that would support further extensions and timely requests for extensions: The schedule and continuous construction commencement date of CON 9814 may only be extended by agreement of the parties because of governmental action or inaction or for unforeseen natural disasters or Acts of God. If such an extension or extensions become necessary, the Petitioner agrees to timely file the request(s) for extension in full compliance with the requirements of Rule 59C-1.018(3)(a), F.A.C., and upon failure to fully comply with the requirements of said rule, Petitioner agrees that CON 9814 shall become null and void by operation of law, without further action by the agency, and without any further administrative or legal remedies being available to the Petitioner. Id. at 7-8. The Agency's Position at Final Hearing At final hearing, the Agency embellished upon the circumstances that led to its decision to deny the Emergency Petition, including its view of why the outcome in the Hillsborough case is justifiably different from the Agency's preliminary denial in the Final Order in this case. See Finding of Fact 76. In essence, the Agency adhered to the position taken in the Final Order in this case: that MJHHA's Emergency Petition should be denied because it was filed eleven days late and Miami Jewish Home had failed to demonstrate a basis for waiving the 15-Day Requirement.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Agency waive the 15-Day Requirement for Miami Jewish Home with regard to its written request to extend the validity period of CON 9893, revoke the termination of the CON, and grant an extension of 60 days of the CON's validity period upon issuance of a final order. DONE AND ENTERED this 11th day of May, 2009, in Tallahassee, Leon County, Florida. S DAVID M. MALONEY 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 11th day of May, 2009. COPIES FURNISHED: Karl David Acuff, Esquire Watkins & Associates, P. A. 3051 Highland Oaks Terrace, Suite D Post Office Box 15828 Tallahassee, Florida 32317-5828 Shaddrick Haston, Esquire Agency for Health Care Administration Fort Knox Building, Mail Stop 3 2727 Mahan Drive, Suite 3431 Tallahassee, Florida 32308 Holly Benson, Secretary Agency for Health Care Administration Fort Knox Building, Mail Stop 3 2727 Mahan Drive, Suite 3116 Tallahassee, Florida 32308 Justin Senior, General Counsel Agency for Health Care Administration Fort Knox Building, Mail Stop 3 2727 Mahan Drive, Suite 3116 Tallahassee, Florida 32308 Richard J. Shoop, Agency Clerk Agency for Health Care Administration Fort Knox Building, Mail Stop 3 2727 Mahan Drive, Suite 3431 Tallahassee, Florida 32308
The Issue The issues are as follows: (a) whether Respondent is guilty of a Class II violation because Respondent failed to discharge a resident who no longer met the criteria for continued residency contrary to Sections 400.426 and 400.428, Florida Statutes (2005), and Florida Administrative Code Rule 58A-5.0181; (b) whether Respondent is guilty of a Class II violation because Respondent transferred a resident’s prescription medication from one storage container to another contrary to Florida Administrative Code Rule 58A-5.0185; and (c) what penalties, if any, should be imposed.
Findings Of Fact Petitioner is the agency charged with licensing of assisted living facilities (ALFs) in Florida. Petitioner has the duty to ensure that ALFs comply with the provisions of Chapter 400, Part III, Florida Statutes (2005). In the performance of its duties, Petitioner is required to conduct biennial surveys and monitoring visits to verify correction of any deficient practices. The evaluation, or survey, of a facility includes a resident review/observation and, depending on the circumstances, a record review and interviews with family and facility staff. Surveyors note their findings on an agency Form 3020-0001, titled “Statement of Deficiencies and Plan of Correction.” If deficiencies are found during a survey, the violations are noted as “Tags” on the Form 3020-0001. A Tag identifies and summarizes the applicable regulatory standard that the surveyor believes the licensee has violated. A Tag also sets forth specific facts in support of alleged deficiencies, identifies the classifications of deficiencies depending on their nature and gravity, and identifies the probable effect that deficiencies have on facility residents. Respondent operates a licensed ALF facility (the facility) located in Port Orange, Florida. Respondent is also licensed to provide its residents with limited nursing services (LNS). Respondent is authorized to admit a maximum of six residents. Resident 2 was admitted to the facility on October 11, 2004. She was an elderly female who had psychological and medical problems, including schizophrenia, chronic obstructive pulmonary disease, and hypertension. Resident 2 needed supervision for ambulation with a walker, dressing, eating, grooming, bathing, and total care for toileting due to incontinence of bowel and bladder. Resident 2 never received LNS from Respondent. Resident 2 was a strong-minded person who would not always cooperate with the efforts of the facility’s staff to keep her repositioned in her wheelchair or bed. At times she refused to take her medicines. Because Resident 2 was forgetful, the facility’s staff had to provide her with reminders so that she could stay oriented to time and place. She was always very verbal about her wishes, especially her desire to be left alone. Christal Caso is Respondent’s administrator and owner. She is also a licensed practical nurse. In March 2006, Resident 2 experienced trouble with vomiting for several days before she would allow Ms. Caso to take her to the hospital. After receiving treatment for kidney failure in the hospital, she recovered sufficiently to travel in a wheelchair on a seven-day cruise with Ms. Caso. After the cruise, Resident 2's health seemed to decline rapidly. She began to lose weight because she was not eating properly. Around the first of May 2006, Ms. Caso took Resident 2 for an appointment with her personal physician. After that appointment, she was referred to a local hospice. Resident 2 was admitted to hospice care on May 10, 2006. The hospice agreed to provide her hospice care in Respondent’s facility. Because hospice did not provide 24-hour day-to-day care, Respondent continued to provide care for her. A nurse from the local hospice visited with Resident 2 on May 12, 2006. The hospice nurse noted that she was very thin with poor appetite. The hospice nurse observed that she was very stiff with multiple skin breakdowns that seemed to get worse every day. The hospice nurse also noted that Respondent’s staff used normal saline solution and triple antibiotic ointment to treat the pressure sores. Resident 2 yelled when the hospice nurse or anyone touched her. She would not let the hospice nurse treat her pressure sores. On May 12, 2006. the hospice nurse requested the hospice physician to order ibuprofen (Motrin) suspension for Resident 2. The physician’s order stated that she could take the Motrin every six hours as needed for pain. On May 17, 2006, Petitioner’s staff performed a biennial survey of the facility. The survey involved an evaluation of the facilities’ care for Resident 2. Petitioner’s surveyor observed the following problems with Resident 2’s skin integrity: (a) a medical dressing at mid-calf on her right leg, draining a yellow, serosanguineous substance; (b) a bandage on her right foot, covering an swollen area that was deep red to bluish in color; (c) a pressure sore on her right heel that was black but not draining; (d) a black, draining ulcer on the outer side of her right foot about the size of a quarter; (e) a large bandage under her incontinent brief that covered an ulcer approximately 7 centimeters wide, 11 centimeters long, and 2-3 centimeters deep, with a yellow, serosanguineous drainage and that constituted a stage 4 ulcer almost exposing the hip bone. Petitioner’s surveyor could not see other parts of Resident 2’s body because she refused to change her position. During the course of viewing her pressure sores, Petitioner’s surveyor observed Respondent’s certified nurse assistant (CNA) removing Resident 2’s bandages. The CNA took off the dressings, one at a time, and laid them on the over-bed table. The CNA put the same dressings back on her after handling her clothing and the over-bed table, thus contaminating the dressings and the table. Contamination of the reapplied dressings created a direct threat of infection. The CNA stated that he was the only staff member that performed wound care at the facility. Ms. Caso admitted that she did not perform wound care. She also admitted that the facility did not have a staff member who was licensed and properly trained to provide wound care. During the surveyor’s observation, Resident 2 had periods of clearly understanding what was being said to her. At other times, she would either refuse to talk or was unable to do so. She yelled during the observation because she was annoyed and/or in pain. On May 17, 2006, Respondent could not provide Petitioner’s surveyor with a record more recent than 2004 or 2005 of Resident 2’s health status. There was no documentation to show that she received appropriate management of her pressure sores in Respondent’s facility before or after her admittance to hospice care. Respondent did not have a written plan of care for Resident 2 reflecting wound care, pain management, or hospice care. Ms. Caso admitted that she did not have time to keep records. More important, she could not produce any records kept by hospice. Petitioner’s surveyor checked Resident 2’s medication. As of May 17, 2007, she had not received a dose of the Motrin ordered for her on May 12, 2006. Respondent did not pick up the medicine from the pharmacy until May 16, 2006. Petitioner’s surveyor also observed that Resident 2 had a prescription bottle of medicine by the name of Metoprolol, a medicine commonly prescribed for high-blood pressure and heart problems such as angina. The medicine bottle contained two kinds of tablets: pink and round tablets and white oval tablets. When the pharmacist filled Resident 2’s prescription for Metoprolol, he did not have enough of the medicine to complete the physician’s order. When the pharmacist received a shipment of the same medicine from a different manufacturer, he sent Resident 2 the balance of the physician’s order. The Metoprolol tablets from the two manufacturers were different in color and shape. A member of Respondent’s staff combined all the tablets of Metoprolol in one prescription bottle. Thereafter, a third person would not know if these tablets in the same bottle were actually the same prescribed medication or whether someone mixed the wrong medications. Combining the tablets from two prescription bottles was a class II violation of Tag A626 because it created a direct threat to Resident 2‘s health. At the request of Ms. Caso, the hospice nurse visited Resident 2 during the survey on May 17, 2006. The hospice nurse noted that her skin continued to break down. The hospice nurse decided to consult a wound care specialist regarding Resident 2’s skin breakdown. During the hearing, the hospice nurse conceded that at least one of Resident 2’s pressure sores had advanced to a stage 3. During the survey on May 17, 2006, Petitioner’s surveyor recommended that Resident 2 be transferred to a facility with a higher level of nursing care. The surveyor contacted Resident 2’s personnel physician to advise the doctor about her health status and the advanced state of her pressure sores. After making that call, the surveyor was unable to get Resident 2 to voluntarily go see her physician at the emergency room. Ms. Caso took the position that Resident 2 was receiving appropriate care and refused to initiate discharge proceedings. Resident 2 required wound care on a daily basis. Hospice did not perform that care. A hospice nurse visited her on a weekly basis to monitor her condition. A hospice home health aide bathed her three times a week. Respondent’s CNA continued to provide all of her wound care, a task outside the scope of a CNA’s license. Resident 2’s skin breakdown had become very severe by May 17, 2006. Her admission to Respondent’s facility did not include LNS. Clear and convincing evidence indicates that Resident 2 required a higher level of nursing care for her pressure sores than Respondent provided or was licensed to provide. Resident 2’s admission to hospice care did not relieve Respondent of the duty to ensure that Resident 2 received appropriate care or, in the alternative, to initiate steps to discharge her. Respondent’s failure to do so was a class II violation of Tag A509 because it created a direct threat to Resident 2’s health. The hospice nurse made a weekly visit to Resident 2 in Respondent’s facility on May 23, 2006. The hospice nurse made the following progress notes: (a) patient has been eating three meals a day, consisting of approximately three ounces per meal; (b) brought out air pressure seat for wheelchair; (c) instructed ALF to use home health aide to give patient bath that is OK and allowed by ALF’s; (d) patient sitting up in wheelchair and feeds self puree diet very slowly; (e) wounds continue to look clean and without signs of infection; (e) see assessment; (f) poor circulation, poor nutritional status, daily wound care once a day; and (g) continue to assess diet, circulation, and wounds once a week and as needed. Resident 2 died a few days after the hospice nurse’s visit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order finding that Respondent is guilty of two Class II violations and imposing an administrative fine in the amount of $2,000 and a survey fee in the amount of $500. DONE AND ENTERED this 20th day of March, 2007, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 20th day of March, 2007. COPIES FURNISHED: Gerald L. Pickett, Esquire Agency for Health Care Administration Sebring Building, Suite 330K 525 Mirror Lake Drive, North St. Petersburg, Florida 33701 Christal Caso, Owner Caso, Inc., d/b/a Paradise Manor II 435 Greenleaf Square Port Orange, Florida 32127 Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308 Dr. Andrew C. Agwunobi, Secretary Agency for Health Care Administration Fort Knox Building, Suite 3116 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308 Craig H. Smith, General Counsel Agency for Health Care Administration Fort Knox Building, Suite 3431 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308
The Issue The issue for consideration in this case is whether Respondent's license to operate a nursing home at 702 South Kings Avenue in Brandon, Florida, should be disciplined because of the deficiencies alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, the Agency was the state agency in Florida responsible for the licensing and regulation of nursing homes, and Respondent was licensed to operate a nursing home at 702 South Kings Avenue in Brandon, Florida. This nursing home was certified as qualified to accept Medicare and Medicaid patients as residents, and to accept reimbursement for services rendered to those types of residents. Medicare payments are made from totally federal funds. Medicaid payments are made from a mix of federal and state funds. Medicare payments to nursing homes are usually of shorter duration than Medicaid payments, and Medicare usually reimburses at a higher rate than does Medicaid. Not all beds in a nursing home are Medicaid beds. The facility participating in providing care to eligible recipients has the option of deciding how many certified beds to have for Medicaid and/or Medicare. Some beds can be designated as dual beds. That means the particular bed can be used either for a Medicare or a Medicaid patient, and the facility bills the appropriate source. Medicare and Medicaid rates are not the same. If the bed is occupied by a Medicare patient, the facility will bill Medicare, and conversely, if the bed is occupied by a Medicaid patient, the facility bills Medicaid for the service. On February 1, 1999, Respondent's facility was surveyed by the Agency. Ms. Perrone participated in that survey. The survey was conducted as a complaint investigation which focused on the issue of discharge. It was done through a random focused sample which involved review of the discharge of patients from Respondent's facility. The term "discharge" has several meanings within health care services. It may mean either a discharge from the Medicare payer source to either a Medicaid or private payer source within the same facility, or it may mean an actual discharge from the facility to another facility or a hospital. The Health Care Financing Agency (HCFA) of the federal government lists six legitimate bases for discharges, which apply only when the discharge is initiated by the facility, not if the resident or family initiates it. These discharge bases are: The transfer must be for the resident's welfare and the resident's needs cannot be met by the facility. The transfer is appropriate because the resident's health has improved. The safety of the individuals is being endangered by the presence of the resident. The health of the individuals in the facility is being endangered by the resident. The resident has failed, after reasonable efforts, to pay the bill. The facility is no longer in business. Those criteria are made known to the facilities by HCFA'S Transmittal 9292, a copy of which is sent to every facility which served Medicare or Medicaid residents. Florida law requires that residents of nursing homes who are to be discharged must be given notification of the impending discharge and of their right to appeal the discharge. If the resident appeals the discharge decision, he or she may remain in the facility pending resolution of the appeal. The survey in question lasted about 10 hours. As a surveyor, Ms. Perrone was to classify any deficiencies discovered in the facility operation as Class I, II, or III. In conducting the survey, the team did not survey every resident of the facility, but, instead, did a sampling of approximately six residents. Of the residents surveyed, Ms. Perrone did the surveys on two or three. For each of those, she interviewed the resident, if possible; conducted family interviews; interviewed the staff; reviewed facility records regarding the resident; and made her personal observations. One of the residents surveyed on February 1, 1999 by Ms. Perrone was Resident 2. This resident was admitted to the facility on or about December 9, 1998. She was diabetic, had a pulmonary disorder and respiratory distress, and polyneuropathy, a side effect of the diabetes. She also had spinal stenosis, high cholesterol, and degenerative osteoarthritis, and was morbidly obese. She occupied a dually-certified bed, available to both Medicare and Medicaid patients. The resident's records which Ms. Perrone examined reflected that the resident had been identified for discharge to another facility, but there was no evidence in her clinical record that she was given notice of the pending discharge. The notice and resident's response thereto should have been in the file. When interviewed by Ms. Perrone, the resident was tearful, anxious, distraught and upset, Perrone believed, over the transfer, and though she remained in the facility through the survey, she was transferred to another facility after the survey process was completed. The facility administrator, Mr. Carotenudo, indicated that the resident was transferred because she wanted to go home. His review of the records disclosed there was a physician's discharge order included therein, but she had not been discharged, and at the time of the survey, was occupying a Medicare bed. According to Mr. Carotenudo, the resident's daughter was hostile toward the facility and the staff and had indicated she would decide what would be done. Dr. Andersen, the psychologist retained by the facility to help implement the directed plan of correction after the survey, concluded this resident's depression was the result of her relationship with her daughter rather than the potential for move from the facility. His testimony is discussed at length later in this order. Resident 2 was taken to the facility in November 1998 on release from the hospital when the family decided they could not care for her at home. The resident was eligible for both Medicare and Medicaid. According to the daughter, at one point in December 1998, the resident was not doing well. The resident called her daughter and told her she was to be transferred to another facility. The daughter then called the facility's social worker to inquire and was advised that because there were no more Medicaid beds at the facility, the resident was being transferred to another facility, and the family would have to pay the transfer fee. The daughter objected to the move and payment. When the daughter visited her mother after the call, the mother was very emotional because she had been told she was to be transferred the next morning. Neither the resident nor the daughter was advised of any appeal rights. The next afternoon, the daughter was called by the facility social worker who advised her that due to a moratorium on admissions at the new facility, the resident would not be moved. The resident was returned to her bed. As a result of this incident, the daughter called the Agency's ombudsman, but because she believed the situation had been satisfactorily resolved, took no further action. However, thereafter she was again notified of an impending move of her mother. When she tried to reach someone in charge, she was referred to administration where she spoke with a man she did not know, but who was later determined to be the facility administrator. The daughter explained to the administrator that she didn't want her mother moved. In response, she claims, the administrator advised her that she had been advised upon admission that the initial placement was short-term only, and that the bed would soon be needed. According to the administrator, this information was included in the admissions packet, but the daughter contends the admissions packet was not given to her until two weeks after the resident was admitted. The daughter and the administrator talked for a while and she claims he finally advised her that she had until the following Tuesday (the conversation was on Friday), to find another nursing home for the resident or to be prepared to take her home. Consistent with those instructions, the daughter looked into several other facilities in the area but found either that there were no vacancies or the facilities were, for some reason, unacceptable. Further, she was concerned about the costs of transfer of the resident to and from the doctor's office. The daughter was not aware at that time that the cost of doctor visit transfers would be paid by the Medicare or Medicaid program. Mr. Carotenudo categorically denies having given Ms. Vargas any ultimatum about her mother. He claims he had a long discussion with her about the Medicare rules and it was she who was hostile. He admits he finally told her she had to make a decision about what she wanted to do, but he denies telling her she would have to pay any transfer fee. If a transfer is made, the facility actually makes the transfer in its vehicle. The Director of Nursing described Resident 2 as a cheerful, social resident. When, in early January 1999, this resident was advised of a potential transfer, she seemed excited and pleased over the prospect. According to Ms. Wampler, the resident was capable of making her own decisions, and Ms. Wampler claims her review of the resident's chart showed no indication of a second transfer effort prior to February 1, 1999. Ms. Perrone also examined the record of Resident 3 who was admitted to the facility on or about December 15, 1998. This resident, in her early to mid 90's, was admitted after having suffered a series of mini-strokes, and evidenced weakness, ulcers, appetite loss, and peripheral vascular disease. The resident was being fed orally and by a stomach tube, and she had been assessed by the facility as requiring total care in all activities of daily living. She was mentally impaired in her decision-making, and her son had to make all decisions for her. The son, himself in his mid-60's to mid 70's, though fully aware of his mother's condition, was unable to care for her. Resident 3 also was occupying a dually-certified bed in the Medicare section of the facility. Review of her record during the survey indicated that she had been identified for discharge to another facility to continue the long-term care she required, but during the time of the survey she was still there. Her clinical record contained no documentation as to whether the resident, or her son, were given any choices about her placement. There was a note in the record dated "1/7" that the son was unable to take her home and preferred a long-term care placement, but he indicated he would care for her at home if she were not placed in a facility where she would receive proper care. Ms. Perrone interviewed the resident and determined she was not mentally capable of understanding what was happening. She had become accustomed to her surroundings and the staff and, to her, the facility was home. In Perrone's opinion as an experienced registered nurse, removal of the resident from the facility could have resulted in a potential decline in her condition. In this case, according to Mr. Carotenudo, the resident had several sons, each of whom had a different idea as to what should be done with their mother. This was confirmed by Ms. Wampler, the Director of Nursing (DON). In any case, no steps were taken to discharge this resident prior to the survey. Carotenudo contends his people are trained and qualified to do the proper thing regarding the residents, and he presumed they did. Notwithstanding the contention of Mr. Carotenudo that a doctor's discharge order was in the records of Resident 2, review of the records of both residents revealed that in neither case was there anything therein relating to discharge of the resident. Each resident must be evaluated for discharge by a physician who must comment on the propriety of the pending discharge utilizing HCFA criteria. The records of Resident 2 showed a physician had suggested several months previously that she might go home, but in the interim, her condition deteriorated to the point that that was not an option. Ms. Perrone classified the cases of both Resident 2 and 3 as Class I deficiencies. A Class I deficiency is one which poses an actual or potential harm to the resident. In Ms. Perrone's opinion, both residents would suffer harm, either emotional or physical, if discharged. Another of the Agency personnel who participated in this survey was Joanne Stewart. Ms. Stewart reviewed the case of Resident 6, a two-year resident of the facility who was re- admitted from a hospital stay. The resident was diabetic and hypertensive, and suffered from pulmonary disease, degenerative joint disease, coronary artery disease, bronchitis, depression, and anxiety. Ms. Stewart's interview with the facility's social service director indicated that facility practice was to discharge residents coming off Medicare or, as in the case of this resident, move them to the Medicaid area. Ms. Stewart's investigation revealed that the resident was happy where she was. She did not receive any notice of her right to stay there, and the social service director had indicated that for the six months prior to the survey, it was facility practice not to do so. The social services director was not called as a witness for the Agency, however, and the statement given by her to Ms. Stewart is inadmissible hearsay testimony to the extent it is not corroborated by other admissible evidence. Mr. Carotenudo contends, with regard to this resident, that she had been moved from bed-to-bed before this without any problem or complaint. The resident was not scheduled for discharge. She had resisted this move to another room because she wanted to keep her electric bed. According to the administrator, it is facility policy to accommodate resident desires and her wishes could have been met. In fact, when, after the survey, the resident was moved, the electric bed went with her. Nothing in the records reviewed by the DON indicated an imminent change of room for this resident. If one were anticipated, some reference to that should be in the resident's records. Ms. Stewart also evaluated the case of Resident 5 who was admitted to the facility on December 8, 1998, after a massive stroke. This resident needed skilled care, but on December 28, 1998, was discharged to another facility. The resident's spouse, with whom Ms. Stewart spoke, related she was told nothing regarding a pending transfer of her husband. Had she been asked for permission, she would not have objected because the new facility was closer to her, but the decision to move the resident was initiated and made by the facility without notice of the move or of the appeal rights. The spouse was not called to testify, however. Ms. Stewart's recounting of what the spouse told her is hearsay. The administrator, however, contends the resident was moved with the concurrence of his wife who wanted him closer to home. The only record regarding this resident introduced into evidence was a progress note of the social worker, dated December 24, 1998, which indicated the spouse's expressed desire that the resident return home or be transferred to a facility closer to her home. According to the DON, when the resident was admitted plans were made to move him to an assisted living facility or nursing home when he was able to be moved because the family could not care for him at home. However, the resident needed more care than could be provided at an assisted living facility. Review of the resident's clinical records showed a physician's note reflecting the comment "stable for transfer," but no reasons for the transfer were given even though they are required to be there. According to Ms. Stewart, the facility's social services staff are required to act as advocates for the residents and to act in their behalf. Her review of the records of Respondent's facility indicated to her that the social services staff were not advising residents or their families of their resident rights regarding transfer. Ms. Stewart classified this as a Class I deficiency due to the potential for harm to the residents as a result of the failure of the social services staff to intervene on their behalf. This is a generic comment, however, and no specific cases were cited, nor were any resident records submitted in support of this contention. At the close of the survey, the facility was issued a directed plan of correction (DPC) which itemized the corrections which had to be made immediately. Mr. Carotenudo contends the noted deficiencies were corrected in the time allowed. One item in the DPC called for an outside independent individual to brief the staff and residents' families on discharge/transfer requirements. An individual approved by the Agency, Dr. Andersen, was retained and the requirement complied with. Mr. Carotenudo claims that no residents were moved against their will, "that he knows about." Residents were advised of their transfer and discharge rights. The administrator admits that the survey showed the facility was not using the proper forms nor were the forms used being used correctly. However, on admission, residents were advised of basic resident rights which included transfer rights, and there were posters at each nursing station regarding the residents' rights to fair hearings on transfer rights and related subjects, which gave the name and address of the appeal authority. In addition, the facility had a residents' council, and Mr. Carotenudo can remember no complaints from either the council or the families of the residents. Though Ms. Wampler has heard of transfer trauma and recognizes it as a valid potential, whether it happens or not depends on the resident and the situation. In her opinion, none of the residents were in imminent danger due to their pending removal. None of the planned moves, in her opinion, would have a direct or immediate relationship to the health safety or security of the resident, and, she opines, none of the Respondent's actions had any impact so as to place a resident in immediate jeopardy. Dr. Blake T. Andersen, a psychologist with expertise in long-term care and geropsychology, was selected to help the Respondent comply with the DPC. A part of his job was to evaluate all discharge records, to instruct family and staff on resident discharge rights, and to evaluate residents traumatized by potential discharge. The first resident he evaluated was Resident 2. He spent about one-half hour speaking with the resident, the resident's family, and the staff. In his evaluation he looked at the resident's cognitive abilities and evidence of mental illness. He found this resident to have a history of depression. She was tearful and had feelings of helplessness. Dr. Andersen determined, however, that this stemmed from a history of family discord and disagreement with her daughter. It was clear to the doctor that a big problem here was that the resident wanted more independence or control over where she stayed. It was not clear to her where she was going. When Dr. Andersen told her it was up to her, she said she didn’t want to upset her daughter. Andersen spoke with the daughter and encouraged her to take her mother's wishes into account. Dr. Andersen found the resident had a history of many medical problems and was very dependent upon her daughter. The resident felt she could not make an independent decision. Her location was an issue in her depression, but Dr. Andersen felt the depression was more the result of the familial relationship and not the pending transfer. He could see no potential for trauma as a result of the pending transfer, nor did he believe the potential transfer would put the resident in a situation where she would likely suffer harm or impairment. He did not believe that anything the facility did made it likely the resident would be in imminent danger of mental or physical harm. Resident 3 was more difficult for Dr. Andersen to evaluate due to a diminished cognitive function. This resident could not make independent judgements. Dr. Andersen observed the resident talking with her son and saw no signs of mental disorder, except memory deficits. Andersen asked her about a discharge and she was not aware of any pending discharge. Dr. Andersen does not feel this patient was placed at harm by any action of the facility. In addition to resident evaluations, Dr. Andersen also oversaw the review of the facility's resident records and he conducted in-service training for the staff and family members regarding transfer and discharge rights. To do this, he worked with the administrator to set up a series of meetings during which he could meet with families and brief them. As a result of this, some people were alarmed and upset by the fact that the subject matter was discharge and transfer, fearing the facility was closing down. Once past that, he heard no complaints regarding resident care, even though such complaints are common at most facilities. Transfer trauma is affected by a number of factors and by the nature of the individual resident. Without full information, it would be pure speculation to try to estimate what would happen in a particular case. Dr. Andersen has found that trauma is greater in a transfer from home to a facility than in a transfer from one facility to another. However, he has found that residents form attachments to caregivers, and a transfer can have some effect.
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 rescinding the three administrative fines imposed by the Administrative complaint filed herein. DONE AND ENTERED this 24th day of June, 1999, in Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of June, 1999. COPIES FURNISHED: Thomas W. Caufman, Esquire Agency for Health Care Administration 6800 North Dale Mabry Highway Tampa, Florida 33614 Karen L. Goldsmith, Esquire Goldsmith & Grout, P.A. 385 West Fairbanks Avenue Suite 300 Winter Park, Florida 32790 Sam Power, Agency Clerk Agency for Health Care Administration Fort Knox, Building 3 Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308 Julie Gallagher, General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308
The Issue Whether Petitioner is entitled to temporary licensure as a physician assistant pending her successful completion of the licensure examination.
Findings Of Fact Petitioner is an applicant to sit for the examination for licensure as a physician assistant in Florida. Petitioner was found by Respondent to be eligible to sit for the licensure examination. Petitioner also requested a temporary certificate as a physician assistant, which request was denied by the Respondent. In requesting temporary certification, Petitioner relies on the provisions of Section 458.347(7)(b), Florida Statutes, which provide, in pertinent part, as follows: (b)1. . . . [T]he department shall examine each applicant who the board certifies: Has completed the application form ... Is an unlicensed physician who graduated from a foreign medical school listed with the World Health Organization .. Has applied for certification as a physician assistant in this state between July 1, 1990, and June 30, 1991. Was a resident of this state on July 1, 1990. . . The board may grant temporary certification to an applicant who meets the requirements of subparagraph 1. Petitioner's application to sit for the examination for licensure as a physician assistant was granted by an Order entered by the Board of Medicine on March 12, 1992. The Order also denied her request for temporary certification because she had not recently worked in the field of medicine and because she had not received significant continuing education in the interim. The Board determined that Petitioner had not established her ability to currently practice as a physician assistant with reasonable skill and safety to the public. The Board determined that Petitioner could establish that ability by passing the licensure examination. Petitioner graduated from medical school in Ecuador in December 1975. Between March 1976 and April 1980, she was in medical residency in Ecuador. She has not practiced medicine since April 30, 1980, when she moved from Ecuador to the United States. Physician assistants in Florida work under the supervision of a supervising physician. A physician assistant is permitted to examine patients, to diagnose conditions, and to prescribe treatment plans. Because of the rapid changes that occur in the field of medicine, the current ability to practice as a physician assistant should be demonstrated. The applicant can demonstrate that current ability through recent practice, through recent education, or through examination. Petitioner's testimony and the documentary evidence she presented at the formal hearing fail to establish that she is currently able to practice as a physician assistant with reasonable skill and safety to the public. She has not practiced medicine since 1980. Her participation in a program at the University of Miami School of Medicine in December 1991 and her volunteer work for Dr. Rodolfo Binker from August 1991 to November 1991, do not establish her current ability. The evidence offered by Petitioner as to continuing medical education likewise fail to establish her current ability. Both the quality and the quantity of her continuing education fail to meet the level of continuing education required of physician assistants.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order denying Petitioner's application for temporary certification as a physician assistant. DONE AND ORDERED this 28th day of July, 1993, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 28th day of July, 1993. COPIES FURNISHED: John H. Duhig, Esquire 702 National Bank Building 25 West Flagler Street Miami, Florida 33130-1770 Allen R. Grossman, Esquire Office of the Attorney General Plaza Level 01, The Capitol Tallahassee, Florida 32399-1050 Dorothy Faircloth, Executive Director Department of Professional Regulation Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Petitioner, Dr. Winifred Chambers received a master's degree in religion and art in 1957, a second master's degree in 1968 in philosophy with a specialization in ethics and social philosophy and a Ph.D. (with honors) in 1975 in the philosophy of science, all from the University of Chicago. While working on her dissertation, she studied at the Chicago Institute of Psychoanalysis. After working around hospitals and conducting classes and workshops on medical ethics for medical personnel, Petitioner decided to attend medical school. Because her educational training did not include extensive background in certain scientific areas, Petitioner was concerned with her ability to score well on the MCATS, which are the entrance examinations required by all medical schools in the United States. In addition, Petitioner's age (she was in her mid 40's at the time) was considered a negative factor by many medical schools in the United States. As a result, she inquired about attending certain foreign medical schools. She was limited in the schools that she could consider because she did not speak Spanish. Medical Education In 1979, Petitioner applied to the American University of the Caribbean (AUC). AUC taught its medical courses in English and Petitioner was only required to make up a few undergraduate science courses (including physics) in order to enroll in the medical school. Petitioner enrolled in classes at AUC in May of 1980. She actually started classes a few days after the semester began. She completed the first two semesters from May to December 1980 and then went home during the Christmas break. During the break, Petitioner learned that she had received an F in her course in neurosciences. Petitioner met with the professor from that course to discuss the failing grade she received and also met with the President of AUC. As a result of these meetings, it was her understanding that the grade was changed to a passing grade. In January of 1981, Petitioner visited CETEC (another Caribbean medical school located in the Dominican Republic,) and met with officials of the school to discuss transferring from AUC to CETEC. Petitioner applied to CETEC during her visit and, prior to leaving, was informed of her acceptance into medical school at CETEC. Petitioner returned to AUC and completed her third semester at the school. In May of 1981, she officially enrolled at CETEC by initiating clinical rotations at Sharp Hospital in San Diego, California. Even though Petitioner had only completed three semesters at AUC, she was granted status as a fifth semester medical student. She contends that she was granted this status based upon CETEC'S evaluation of her transcript and the number of hours she took at AUC. Prior to her enrollment at CETEC, Petitioner provided CETEC with a transcript indicating she had passed neurosciences at AUC and CETEC gave her credit for the course. From May 4, 1981 to June 6, 1982, Petitioner participated in clinical rotations at Sharp Memorial Hospital in San Diego, California as part of her medical education at CETEC. During this time period, Petitioner also participated in a clinical rotation at Children's Hospital in San Diego, California (from 12/28/81 to 2/20/82). Beginning in 1983, the media and some state licensing agencies began challenging the validity and/or authenticity of the credentials and training of some CETEC medical graduates. CETEC medical school was ultimately closed in 1984. The Dominican Republic government formed an agency to verify and certify the transcripts of CETEC graduates. This agency was called the "Counsel For Superior Education" also referred to by the acronym of CONES. CONES verified and certified the legitimacy of higher education credentials from all Dominican schools submitted to other countries. As part of her pending Florida Application, Petitioner has submitted a certification from CONES dated October 15, 1987 attesting to Petitioner's graduation from medical school at CETEC on June 12, 1982. Petitioner has also submitted a second certification from CONES dated July 8, 1988 confirming her graduation on June 12, 1982. Included as part of the documents submitted by Petitioner from CONES is a Certification of Clinical Rotations dated July 14, 1987 (the "CONES Report") and an academic transcript dated July 14, 1987 (the "CONES Transcript.") The "Education Commission For Foreign Medical Graduates" ("ECFMG") provides a certification of the education of applicants from foreign medical schools who seek licensure in the various United States and offers an examination required by some state licensing boards for licensure of applicants graduating from foreign medical schools. Petitioner passed the ECFMG examination and was certified by the ECFMG in 1982. However, after the CETEC scandal began in 1983, the ECFMG started an investigation of graduates of CETEC (including Petitioner) for the purpose of reverifying their medical training. The ECFMG required clearance from CONES of Petitioner's CETEC education before reverifying her ECFMG certificate. The ECFMG reinstated Petitioner's ECFMG certification on June 26, 1987. The earliest certification from CONES that has been submitted by Petitioner is dated July 14, 1987, approximately two and a half weeks after the ECMFG certification. It is not clear what the ECFMG relied upon in reissuing a certification to Petitioner. While Petitioner contends that CONES had originally certified her CETEC transcript shortly after her graduation in June of 1982, no competent evidence was presented to establish when or if an earlier CONES certification was issued. In any event, Petitioner currently holds a valid ECFMG certificate. In certifying Petitioner's medical degree from CETEC, CONES gave Petitioner credit for courses taken and work done at non-medical schools (i.e., the University of Chicago) prior to entering medical school. These credits are discussed in more detail in Findings of Fact 17. Although the ECFMG has apparently accepted CONES' certification of Petitioner's medical education at CETEC, there are several inconsistencies on the face of the CONES Report. The CONES Report states that during the period from May 4, 1981 to June 6, 1982, Petitioner completed fifty six (56) weeks of clinical rotations. However, in reaching this total the CONES Report provides one week of credit for a rotation (from 5/24/82 to 5/28/82) in obstetrics and gynecology which overlapped with another rotation (from 5/10/82 to 6/5/82) in obstetrics and gynecology. It it also provides double credit for a single two week clinical rotation (from 5/4/81 to 5/16/81) in obstetrics and gynecology. In addition, there are two periods of time (from 2/21/82 to 3/14/82 and from 4/25/82 to 5/9/82, which total approximately five (5) weeks), during which no clinical rotations were taken. Since the period between May 4, 1981 and June 6, 1982 consisted of approximately fifty seven (57) weeks, it does not appear that Petitioner actually completed fifty six (56) weeks of rotations as listed. Deleting the double credit received for the 5/4/81 to 5/16/81 clinical rotation, the CONES Report only appears to certify completion of fifty four (54 weeks) of clinical rotations. Moreover, those fifty four (54) weeks of rotations include one week of credit for five (5) days in obstetrics and gynecology (from 5/24/82 to 5/28/82) which directly overlapped a separately listed clinical rotation in obstetrics and gynecology, and one (1) week of credit for six (6) days in obstetrics and gynecology from 6/1/82 to 6/6/82. Thus, on the face of the CONES Report it appears that Petitioner actually completed only fifty three (53) weeks of rotations at most. This conclusion is bolstered by the fact that, according to the CONES Report, there were approximately five (5) weeks of the fifty-seven (57) week period during which no clinical rotations were taken. Petitioner contends that the CONES Report fails to take into account a five (5) week clerkship in family medicine which she completed at Sharp Hospital and which was accepted by the ECFMG when Petitioner applied for licensure in California. This clerkship is reflected in the CETEC Transcript even though it is not reflected in the CONES Report. It is not clear why this rotation was not included in the CONES Report However, the evidence did establish that Petitioner completed the rotation. One of the five weeks of this family medicine rotation overlaps with an OB/GYN rotation (from 5/4/82 -5/8/82). The time frame of the family medicine rotation roughly coincides with the period of time during which no rotations are reflected in the CONES Report. Thus, this rotation would only add four more weeks to the clerkship total listed on the CONES Report. Even if this four week rotation is added to the fifty three (53) weeks certified in the CONES Report, the Report would still only indicate that Petitioner completed a total of fifty seven (57) weeks of clinical rotations. According to the boiler-plate language on the CONES Report, sixty (60) to seventy-two (72) total weeks of clinical rotations had to be completed by CETEC students who took their clinical rotations outside of the Dominican Republic. Thus, the CONES Report does not reflect completion of the required weeks of clinical rotations even though CONES has issued a certification that purports to certify successful completion of the degree requirements. This discrepancy has not been adequately explained. The CONES Report does not reflect any clinical rotations by Petitioner in psychiatry. However, the CETEC Transcript does indicate that Petitioner was granted eight hours credit for her graduate studies at the University of Chicago from 1971-1973. Petitioner contends she is entitled to at least four hours of clerkship in psychiatry for those studies. However, it appears from the CONES Transcript that the credit she received was applied towards classes in Human Conduct which were a part of the curriculum during the first two years of medical school. There is no evidence to indicate that CETEC or CONES granted or should have granted Petitioner credit for clinical rotations in psychiatry based upon her graduate studies at the University of Chicago. During a three week period (between her second and third semesters at AUC) from December 20, 1980 to January 10, 1981, Petitioner participated in an OB/GYN clinical rotation at Sharp Memorial Hospital in San Diego, California (hereinafter this rotation will be referred to as the "Unsanctioned Rotation.") This rotation is usually not done until after a student completes the third semester of medical school. Petitioner's participation in this Unsanctioned Rotation was not authorized by any medical school and was not a part of any medical school program. Petitioner contends that she satisfied the required sixty (60) clerkship weeks if the Unsanctioned Rotation at Sharp Hospital from December 20, 1980 to January 10, 1981 is added to the undisputed clinical rotations and the family medicine rotation discussed in Findings of Fact 15. However, the Unsanctioned Clerkship was not accepted by CONES and Petitioner has not provided sufficient evidence to establish that it should be counted towards her required clinical rotations. Although CETEC had previously granted Petitioner credit for the neurosciences course at AUC, CONES was not able to verify that Petitioner passed the course and CONES required Petitioner to retake the course in order to obtain the 1987 certification from CONES. Petitioner attended Northwestern University during the spring quarter of 1987 and completed a four credit hour course (based on a quarter system) in neurosciences. This neurosciences course was apparently given five hours ex post facto credit by CONES to fulfill the neurosciences requirement for Petitioner's 1982 CETEC medical diploma. From December, 1987 to March, 1988, Petitioner attended Xochicalco Medical School in Ensenada, Mexico in order to take additional coursework in partial fulfillment of a requirement by the California licensing board in a stipulated agreement for additional medical training before licensure. (Petitioner's stipulation with the State of California is discussed in more detail in Findings of Fact 47-50.) The courses taken at Xochicalco were approved by the California licensing agency and included clinical pathology, pharmacology (two courses) and physiology (two courses). Petitioner successfully passed all of the courses. However, no evidence was presented as to the accreditation status of this school. Petitioner completed a five week rotation in emergency medicine at Cruze Roja Hospital in Mexico in 1988 while she was completing the remedial science classes required by the California Licensing Board. Post-Graduate Training Petitioner completed one year of post graduate training from July 1, 1982 to June 30, 1983 in the family medicine residency program at Holston Valley Community Hospital through East Tennessee State University's Quillen-Dishner College of Medicine. Petitioner has presented a certificate verifying succcessful completion of her first post graduate year of training in this program. Petitioner performed her residency at two hospitals which are part of the East Tennessee State University Quillen-Dishner College of Medicine: Kingsport Family Practice Center and Holston Valley Community Hospital. She saw patients at the Kingsport Family Practice Center for 7 months, one afternoon each week under the supervision of various physicians. The rest of Petitioner's residency was performed at the Holston Valley Community Hospital. Dr. Lee S. Hyde was the program director of the Kingsport Family Medicine Center. Petitioner's contact with Dr. Hyde was limited, but she did have several consultations with him about patients. In an evaluation submitted to the Florida Board of Medicine in connection with Petitioner's application for licensure, Dr. Hyde evaluated Petitioner's diagnostic ability and relationships with patients as poor. He also stated that Petitioner came to the program with a "poor fund of knowledge, clinical habits, and basic medical education". Although he felt Petitioner made progress during the residency program, he did not think it was sufficient. However, his overall evaluation was to recommend with reservations. Dr. Hyde's evaluation of Petitioner to the Board was received by the Board on July 18, 1983. Dr. Hyde noted on the back of the evaluation form that Petitioner was not ready to begin a second year of unsupervised practice. Petitioner was not and would not have been offered a contract for a second year in the residency program. Dr. Hyde also commented that Petitioner demonstrated poor judgment by once going "AWOL" from the program. While Petitioner did take a three (3) day leave over a weekend while assigned to a particular rotation with another physician contrary to the rules of the program, she did so with the permission of her supervisor at the time. Prior to the negative evaluation submitted by Dr. Hyde in July of 1983, Dr. Hyde had previously written a letter dated March 24, 1983 to the Florida Board of Medicine recommending Dr. Chambers for licensure stating that she was in good standing with the program and of reasonable professional competence and excellent moral character. Leslie P. Reynolds, Jr., M.D., was a professor of Family Medicine, assistant Dean, and Director of Medical Education at the Holston Valley Hospital during Petitioner's year of residency. In a June 29, 1983 evaluation form submitted to the Florida Board, Dr. Reynolds, gave an evaluation of Petitioner's performance during the family medicine residency and recommended her as an outstanding applicant. Dr. Reynolds subsequently submitted an affidavit to the Florida Board of Medicine dated October 21, 1987 attesting that Petitioner earned the respect of both her instructors and fellow residents and that the hospital's records suggest that she performed well on all her services and that she was very helpful to other residents. Several other physicians who served as clinical supervisors during Petitioner's residency at Holston Valley have submitted letters of recommendation and virtually all other evaluations of her work were positive. Aside from the letter from Dr. Hyde, (Dr. Hyde did not testify and his letter is hearsay,) no other evidence was presented to demonstrate that Petitioner is incapable of practicing medicine with reasonable skill and safety. The weight of the evidence established that Petitioner is capable of practicing with reasonable skill and safety. Numerous letters from the physicians who have worked with Petitioner over the last several years corroborate to her ability to practice medicine with reasonable skill and safety. Petitioner was employed as a house physician at Jackson Memorial Hospital in Miami from July 11, 1983 to October 31, 1983. Her position was under the supervision of the Department of Family Medicine in the Ambulatory Care Unit of the Emergency Room Department and the Family Medicine Clinical Faculty from the University of Miami. However, the position was not an advanced residency program and the nature of the supervision and training that Petitioner received has not been fully explained. Furthermore, the evidence did not establish the exact nature of her duties and functions. From October 1984 to March 1985, Petitioner participated in a series of clinical rotations at the Wesley Medical Center which is affiliated with the University of Kansas. The exact nature of Petitioner's position is not clear. The position at the Wesley Medical Center was a non-paying position during which Petitioner completed an eight week rotation in Internal Medicine, twelve weeks in General Surgery and four weeks in psychiatry functioning in each rotation at the level of a first-year resident. Petitioner was not officially enrolled as a resident in this program. However, she did receive evaluations from the attending physicians and her evaluations by the supervising physicians in that program were acceptable. In 1988, Petitioner completed an eight month internship at Universal Medical Center in Plantation, Florida Universal Medical Center is an osteopathic teaching institution. This internship was undertaken to satisfy a requirement of the California licensing authority for eight months of "remedial" clinical work. See, Findings of Fact 50. Petitioner was evaluated as performing in a competent and professional manner in this program. At the Universal Medical Center, Petitioner completed thirty three (33) weeks of clinical rotations. The program extended from March 21, 1988 through November 3, 1988. Her duties and responsibilities were similar to other interns in the program. In sum, Petitioner has successfully completed several additional science courses and completed at least thirty eight (38) additional weeks of clinical training beyond her medical school rotations and first post-graduate year residency. Those weeks of training include thirty three (33) weeks at Universal Medical Center which is an approved osteopathic medical training program that was accepted by the California Licensing Agency for purposes of Petitioner's remedial clinical work. Licensure Applications Petitioner passed the FLEX exam in June, 1982 with a score of 78. She also passed the ECFMG exam in January, of 1982 with a score of 76. In addition, she passed an oral examination administered by the California State Licensing Board in 1988. After graduating from CETEC in June 1982, Petitioner initiated efforts to obtain licensure in several states. In her initial attempts at licensure, Petitioner submitted several misleading applications which have backfired into a morass of complications and confusion. In 1982, Petitioner knowingly submitted a fraudulent application to the State of Oregon. Petitioner filed the application with the Oregon licensing authority in order to take the Federal Licensing Examination known as the FLEX. Oregon was one of the few states which allowed applicants to take the FLEX examination prior to graduation and also granted applicants some choice in the location of the exam. Petitioner took the FLEX in the Virgin Islands in June of 1982. This was the nearest location to the Dominican Republic where she was attending graduation ceremonies at CETEC around the same time. On the application to take the FLEX exam filed with Oregon, Petitioner falsely stated that she attended AUC from May, 1979 to April, 1981. She actually attended AUC from May, 1980 through April, 1981. In the early part of 1983, Petitioner submitted applications for licensure to South Carolina, California, Georgia, New Mexico, and Florida. South Carolina determined that Petitioner was not eligible for licensure in that state because she had not completed the required post-graduate training. Her application for licensure in that state was returned without action. In her applications to Georgia, California and Florida in 1983, Petitioner misrepresented her attendance at CETEC as having commenced in May, 1979 rather than reporting attendance at AUC starting in May, 1980 and ending in May, 1981 when she transferred to CETEC. Petitioner admits that she falsely stated that she began her medical education in May, 1979 on the Oregon FLEX application, as well as the California, Georgia and 1983 Florida applications. In an attempt to justify these false statements, Petitioner points out that the Dean from CETEC had issued a letter to these licensing agencies stating that Petitioner had completed eight (8) semesters at CETEC from 1979 to 1982. Petitioner claims she completed the misleading applications because she wanted her statements to be consistent with the CETEC Dean's certification of attendance. It would appear that an additional motivation for falsifying the applications was to avoid having to explain that she had received medical education credit for some of her non-medical course work at the University of Chicago approximately ten years earlier. It is unclear why the Dean's certification letters were not accurate. While no evidence was presented to directly link Petitioner to the issuance of these incorrect Dean's letters, the shady circumstances surrounding her involvement with Pedro de Mesones around this same time period (discussed in Findings of Fact 87-95 below) leads to an inference that Petitioner was at least indirectly responsible for these misleading letters. In her February 1983 application to New Mexico, Petitioner accurately stated the dates and locations of her medical school education. No adequate explanation was given as to why the correct dates were listed on this 1983 application but not the other applications filed around the same time in Georgia, Florida and California. Petitioner listed the correct dates of attendance at AUC and CETEC on her 1984 Florida application and the 1988 filing which are discussed in more detail in Findings of Fact 69-72 below. Georgia and New Mexico granted Petitioner licensure based upon the 1983 applications. California initially denied her licensure. However, as described in Findings of Fact 47-51 below, Petitioner challenged that decision. Florida permitted Petitioner to withdraw her 1983 Application rather than go to hearing on the Board's intent to deny licensure. See Findings of Fact 67-68. Petitioner's application for licensure in California was filed in the Spring of 1983. Petitioner received a letter in April of 1983 returning her application without action. Petitioner requested reconsideration of her application which, eventually, resulted in a proposed order of denial dated June 9, 1986. Petitioner requested a hearing on that proposed denial. The proposed denial was resolved without hearing by a stipulation between Petitioner and the California licensing agency in an order dated November 5, 1987 (the "California Stipulation"). The stipulated findings of fact in the November 5, 1987 California Stipulation recognize that the application filed by Petitioner in March, 1983 remained pending without action until the 1987 California Stipulation was entered. The California Stipulation notes that the proposed denial of her application in 1986 was based on the grounds that: (a) Petitioner had not listed on her application her attendance at AUC; (b) she had falsely stated under oath that she began her medical education at CETEC beginning in May, 1979; and (c) her medical education did not conform to California requirements. The California Stipulation provides that it supersedes the reasons set forth in the 1986 proposed denial so long as Dr. Chambers abides by the terms of the Stipulation. The California Stipulation makes no findings of fact or conclusions of law regarding wrongdoing on the part of the Petitioner. The California Stipulation provides that Petitioner would be issued a license to practice medicine in California upon completion of remedial medical education specified in the Stipulation, completion of an additional academic year of clinical training before September, 1990, satisfactory proof of certification by CONES, and passage of an oral examination. The California Stipulation also provides that Petitioner shall take forty (40) hours of continuing medical education within the first two (2) years of licensure in addition to the continuing education classes statutorily required for licensure in California. Petitioner was issued her license to practice medicine in California on November 11, 1988 demonstrating that she satisfied the requirements of the November 1987 California Stipulation. In her application to the State of Georgia in June of 1983, the Petitioner specifically represented that she attended CETEC from May of 1979 to April 1980, attended AUC from April, 1980 to May, 1981 and CETEC again from April 1981 through June, 1982. The Dean of CETEC certified to the Georgia licensing agency that Petitioner enrolled in the school of medicine in May, 1979 and attended eight semesters of 4.2 months each. As discussed in Findings of Fact 43, the basis for this certification by the Dean is unclear. Petitioner obtained a license to practice medicine in Georgia based on her 1983 application and did in fact practice medicine in that state from January, 1984 to August, 1984. On August 17, 1984 the Georgia State Board of Medical Examiners issued a Notice of Hearing to Petitioner setting forth charges against her including failure to meet the standards for licensure and/or intentionally making false statements in obtaining a license to practice medicine. The charges also included an allegation that Petitioner "was denied a license by the Board of Medical Quality Assurance of the State of California based on evidence of making false statements on a sworn application and submitting false and/or inaccurate certificates of education to obtain a license to practice in that state." In fact, in 1984 the California licensing authority had not formally denied Petitioner's application for licensure. The proposed denial of Petitioner's California application was pending, but not acted upon. Indeed, a formal denial of her California application was never finalized. Instead, the issues were resolved by the California Stipulation in November, 1987. On September 22, 1984, Petitioner executed a "Voluntary Surrender" which was approved by the Georgia State Board of Medical Examiners and served as the final order of that agency with respect to the Notice of Hearing discussed in Findings of Fact 54. By voluntarily surrendering her license to practice medicine in Georgia, Petitioner waived her right to a hearing on the charges contained in the Notice of Hearing. The first paragraph of the "Voluntary Surrender" states: "I hereby acknowledge that this surrender shall have the same effect as revocation of my license, and I knowingly forfeit and relinquish all right, title and privilege of practicing medicine in the State of Georgia, unless and until such time as my license may be reinstated, in the sole discretion of the Board." Notwithstanding this language, Petitioner contends the "Voluntary Surrender" should be distinguished from a revocation because she did not admit to any wrongdoing and because she was allowed to seek reinstatement upon application and demonstration of the ability to safely practice medicine. The Voluntary Surrender of the Georgia license contains no specific findings of fact or conclusions of law that establish any wrongdoing on the part of the Petitioner. The "Voluntary Surrender" states that Petitioner did not admit to any wrongdoing and it allows Petitioner to seek reinstatement. The Executive Director of the Composite State Board of Medical Examiners of Georgia certified to the Florida Board of Medicine on August 2, 1988, that Petitioner's Georgia license had been issued in 8/83, surrendered in 9/84 and that license had not been "suspended or revoked." Thus, while disciplinary action was clearly initiated against Respondent in Georgia, her license was not revoked. Petitioner was licensed to practice medicine in the State of New Mexico in November, 1983. On January 10, 1985, the New Mexico Board of Medical Examiners served on Petitioner a Notice of Contemplated Action notifying her of charges including having made misrepresentations in applying for and procuring a license to practice medicine in New Mexico and having her license in Georgia revoked. The New Mexico case was referred to a hearing officer who considered argument and briefs by the parties regarding the nature and effect of Petitioner's surrender of her Georgia license. By an order of the New Mexico State Board of Medical Examiners, Petitioner's New Mexico medical license was revoked in January, 1986. The New Mexico order of revocation treated Petitioner's voluntary surrender of her Georgia medical license as the functional equivalent of a revocation for purposes of the New Mexico licensing statute. In reaching this determination, the New Mexico Board relied upon the wording of the Voluntary Surrender and the Georgia Statutes which both indicate that a voluntary surrender shall have the same effect as revocation. No other specific grounds were cited by the New Mexico Board in its Findings of Fact and Conclusions of Law, Decision and Order. As indicated above, Petitioner's initial application to the Florida Board of Medicine (the "Board") for licensure was filed March, 1983. When the Board proposed denial, Petitioner requested a formal hearing. Prior to hearing, the Board obtained leave from the hearing officer to amend the basis for denial to include grounds relating to information presented to the Board by U.S. Postal Service investigators regarding Petitioner's truthfulness on her application form and the validity of certain documents she utilized in her attempt to obtain a Florida medical license. The Board was granted leave to amend as requested by order dated February 20, 1984. Shortly thereafter, Petitioner filed with the hearing officer a motion to withdraw her application because of the new information presented from the "federal investigation." The Board granted the request to withdraw the 1983 Application in an order rendered May 29, 1984. The Board's proposed denial of Petitioner's 1983 Application was on the basis that the Board had reason to believe that Petitioner, "as a graduate of CETEC, was not capable of safely engaging in the practice of medicine as a result of a report of the California Board of Medical Quality Assurance which indicated gross irregularities in the degree granting process of CETEC University and which raised serious doubts about the adequacy of medical education certified by CETEC." Petitioner filed with the Board a second application for licensure in Florida in December of 1984 (hereinafter referred to as the 1984 Application.) In response to a request for additional information from the Board regarding this second application, Petitioner executed a waiver of the requirement that the Board act upon the application within 90 days. As a result, the 1984 Application was left pending. The 1984 Application was for licensure by endorsement based upon Petitioner's license in New Mexico. As discussed in Findings of Fact 62-66, action was initiated against that New Mexico license in January, 1985 ultimately leading to the revocation of the license in January, 1986. After her New Mexico license was revoked, Petitioner did not hold a valid license to practice medicine in any other state until California issued her a license in November, 1988. On August 1, 1988, Petitioner filed another application with the Board as an update to the 1984 Application. (This August 1988 application is referred to as the "1988 Filing.") In her 1988 Filing, Petitioner included a recertification from ECFMG. At the time she filed her 1984 Florida application, Petitioner's original ECFMG certification had been placed on hold because of the CETEC scandal. Petitioner was required to provide a revalidation of her medical education by ECFMG in order to obtain consideration of her application in Florida. This revalidation was not provided until the 1988 Filing. On September 12, 1988, Petitioner filed a supplement to the 1988 Filing. On November 2, 1988 the Board requested additional information relating to the application. On December 12, 1988 Petitioner filed a response to this request. The Board issued an Order of Intent to Deny on March 3, 1989 stating as grounds for denial in Paragraph 2: You have had licenses in Georgia, New Mexico and California acted against by the licensing bodies of those states. See, Subsections 458.331(1)(b) and 458.311(1)(d), Florida Statutes (1988). The only year of training you received was in 1982-1983 at Holston Valley Community Hospital and the Kingsport Family Practice Center through the auspices of East Tennessee State University Quillen-Dishner College of Medicine. You were recommended less than favorably by both hospitals and you were not permitted to return for a second year of residency training by the College of Medicine. Your poor performance in your only year of medical training evidences your inability to practice medicine with reasonable skill and safety. See, Sections 458.301 and 458.331(4), Florida Statutes (1988). There are material discrepancies between answers and information provided in your 3 different applications and supporting documents submitted to the Board; and you have provided fraudulent information and misrepresented or concealed information regarding your medical education. See Subsections 458.311(1)(c) and 458.331(1)(a) and (hh), Florida Statutes (1988). Inconsistencies in the Application There are several discrepancies between Petitioner's 1983 Florida Application, her 1984 Application, and her 1988 Filing. On the 1984 Application, Petitioner reported her participation in the Unsanctioned Rotation at Sharp Memorial Hospital from December 20, 1980 to January 10, 1981 as part of her clinical clerkships. The Unsanctioned Rotation is not listed on the 1988 Filing. Petitioner contends that it was not until after submission of the 1984 Application that she found out that CONES refused to recognize the clerkships taken in 1980 because Petitioner was not enrolled as a student at CETEC at the time. Therefore, Petitioner deleted those unapproved clerkship weeks from the 1988 Filing. However, while specific reference to the clerkship was deleted in 1988, Petitioner admitted at the hearing that she counted the Unsanctioned Rotation as part of sixty (60) weeks of clerkships claimed in the 1988 Filing. The 1988 Filing states Petitioner completed sixty (60) weeks of clinical clerkships as part of her medical education at CETEC. However, as discussed in Findings of Fact 13 through 18, Petitioner's submitted a CONES verification of clinical rotations that only details fifty six (56) weeks (including duplicate and overlapping credit) of clinical clerkships. In the 1988 Filing, Petitioner did report the actions taken against her medical licenses in Georgia and New Mexico and mentioned her problems obtaining licensure in California. On the 1984 Application, Petitioner responded to the question "Have you ever been notified to appear before any licensing agency for a hearing on a complaint of any nature, including, but not limited to, a charge or violation of the medical practice act, unprofessional or unethical conduct?" by stating "after my voluntary surrender, notice of hearing in Georgia, [sic] charging denial and Flafalse documents re licensure (both false)." Both the Notice of Hearing and the Voluntary Surrender in Georgia were issued prior to the completion of Petitioner's 1984 Florida Application. Thus, while Petitioner did disclose the voluntary surrender, she only provided a brief and somewhat misleading explaination. The 1984 Application does not mention Petitioner's application in South Carolina (which was returned without action) nor does it discuss Petitioner's licensure difficulties in California other than to say she had been denied a license because of "informal deficiencies." The 1984 Application also omits Petitioner's licensure problems in New Mexico which is understandable since the Notice of Contemplated Action in that case was not filed until January, 1985. The application form requires the applicant to list all universities or colleges where the applicant "took classes/received training." Petitioner listed her training at the University of Kansas, Wesley Medical Center under the medical education section of her 1984 Application. In the 1984 application, she refers to it as a "externship". That position is also listed in the medical education section of the 1988 Filing with an explanation indicating that she was not actually a resident. As discussed in Findings of Fact 30, her position at the Wesley Medical Center is not easily described due to the unusual circumstances that led to her participating in the program. She was repeating clerkships in certain areas in accordance with the stipulation reached with the California licensing agency. Although Petitioner was not officially enrolled in classes or a residency program in that position, she considers it as part of her medical education and training and, therefore, listed it as such. In her 1984 Application, Petitioner listed time spent at Jackson Memorial Hospital (University of Miami) and Wesley Medical Center (Unversity of Kansas) on a sheet entitled graduate and post-graduate education. On her 1988 Filing, she listed both positions as post-graduate training. Both of these positions were actually house staff positions rather than part of the training programs of the affiliated medical schools. In the 1984 Application, Petitioner listed her dates of training at the Wesley Medical Center as October, 1984 to April 1985 (which was her projected completion date.) The 1984 Application was filled out and filed with the Board in December 1984, four months prior to the projected completion date of the Wesley position. In the 1988 Filing, Petitioner listed her actual completion date of March, 1985, which was approximately two weeks earlier than the projected completion date referred to in the 1984 Application. From January 1984 to August 1984, Petitioner worked for Spectrum Emergency Care in emergency rooms and free-standing clinics in Georgia. Petitioner listed different dates of service with Spectrum on the 1984 Application and the 1988 Filing. Petitioner contends the differences are due in part because the 1988 Filing included employment at Spectrum in New Mexico in December 1984 and January 1985 after submission of the 1984 Application. However, the 1988 Filing states that Petitioner was continuously employed by Spectrum from January 1984 - January 1985. In fact, she was not employed during the months of August, September, October and November, 1984. Moreover, her employment with Spectrum in New Mexico in December, 1984 and January, 1985 overlaps with her "externship" at the Wesley Medical Center/University of Kansas which took place from October, 1984 through March, 1985. Apparently, this overlap was possible because her work for Spectrum in December, 1984 consisted of one weekend and a holiday and in January, 1985 consisted of one weekend. In sum, the 1988 Filing significantly overstates her actual experience with Spectrum. The 1988 Filing contains several inconsistent statements regarding Petitioner's employment as a ship's physician. Under the practice/employment section of that Filing, she states she was a ship's physician for SeaEscape from April, 1985 to September, 1985 and a ship's physician for Commodore Cruise Lines from February, 1986 to September, 1986. Later in the application, under postgraduate medical training and work experience, she states she was a Chief Medical Officer for cruise ships from April, 1985, through September, 1986. However, according to the previously cited information, for at least a four month period during that time frame, she was not employed. In another portion of her application, Petitioner lists under clinical medicine that she worked on the two ships from April, 1985 through September, 1987. Even assuming that there is a typographical error and Petitioner meant September, 1986 as indicated in the other listings, by deleting any reference to the four months that she was not employed, an impression is created that Petitioner has more clinical experience than was actually true. There is a conflict between the AUC transcript that Petitioner submitted with the 1988 Filing and earlier versions of the transcript that appear in her records. The course titles are consistent in the transcripts, but the numbers of some of the courses are different. Only the last digit of the course numbers are different. Whether a course is listed in the 100 series, 200 series and 300 series is consistent in all of the transcripts. The series numbers reflect first semester, second semester and third semester courses respectively. The AUC transcript submitted with the 1988 Filing was the most recent one obtained by Petitioner from AUC. That transcript was prepared in June, 1986 and reflects a failing grade in the neurosciences course. However, as discussed in Finding of Fact 4, that grade was changed to a passing grade as reflected in a 1981 transcript from AUC which was submitted to CETEC when Petitioner transferred to that school. No adequate explanation has been given to explain why the 1986 AUC transcript is not consistent with the earlier one. Postal Investigation The confusing circumstances surrounding Petitioner's medical education are further complicated by her involvement with Pedro de Mesones. The circumstances surrounding her involvement with Pedro de Mesones have not been fully explained. While Pedro de Mesones' exact status or position is unclear, Petitioner believed him to be a representative of CETEC. He has subsequently been convicted of mail fraud in connection with selling medical diplomas and has been sentenced to a federal prison term. Between July, 1981 and January, 1982, while Petitioner was conducting her clinical rotations in San Diego, she attempted to get information and documentation from CETEC, but she had trouble getting responses to her repeated telephone calls, letters and telegrams. Petitioner sought the help of Pedro de Mesones in getting cooperation and/or responses from CETEC regarding transcripts and other documents necessary for the loan applications and residency applications which she had to file prior to her anticipated medical school graduation date of June, 1982. Another reason Petitioner hired Pedro de Mesones was to get confirmation that CETEC would give her credit towards her medical degree for her prior work on her Ph.D. at the University of Chicago. These credits were necessary for Petitioner to graduate in June of 1982 as she anticiapted. Petitioner was advised by others familiar with the school that Pedro de Mesones could help her in her dealings with CETEC. She first contacted Pedro de Mesones by telephone in February, 1982. She agreed to pay him a total of more than $8,000 for his services. Petitioner explains her payments to Pedro de Mesones as a $3000 fee, plus the next two (2) semester's tuition payments totaling an additional $5000.00 plus a $100.00 graduation fee. Pedro de Mesones advised Petitioner that she had to pay CETEC's tuition totalling $5,000 for two (2) additional semesters even though she did not have to take any classes at CETEC because she was given credit for her work at the University of Chicago. At one point during her dealings with Pedro de Mesones, Petitioner signed a false transcript from a Mexican medical school at Pedro de Mesones' request. This transcript reflected work which Petitioner never completed. No adequate explanation was given as to why these false transcripts were ever prepared. While Petitioner contends that she asked Pedro de Mesones not to use the false Mexican transcript for any purpose, it appears that these transcripts were prepared in the event that Petitioner could not secure two semesters credit from CETEC for her Ph.D. work at the University of Chicago. Ultimately, CETEC decided to give her credit for some of the Ph.D. course work she completed at the University of Chicago. As a result, Petitioner was able to graduate in June of 1982 from CETEC without having to use the false Mexican transcripts. It does not appear that the fraudulent Mexican transcript were ever used by Petitioner in any of her applications. Petitioner provided Pedro de Mesones with two false transcripts regarding her AUC medical education. It is clear that she intended for him to use those transcripts, if necessary, to get a dean's certification from CETEC. One of the false AUC transcripts she prepared made its way into the records of CETEC. It is not clear how CETEC obtained that transcript. Because Petitioner was given credit for her graduate work at the University of Chicago, she did not need the extra credits reflected on the false AUC transcripts. Petitioner subsequently wrote the Dean of CETEC requesting removal of the false AUC transcript after she saw it in her CETEC records during a visit to CETEC to obtain a letter from the Dean showing her to be in good standing. Petitioner asked Pedro de Mesones to provide her with letters signed by the CETEC Dean showing her to be in good standing and on track for graduation in June, 1982. She intended to use these letters in applying for licensure for residency programs. Petitioner felt that she was on track to graduate and indicated to Pedro de Mesones that because of time pressures, she felt it would be acceptable for him to forge the signature of the Dean on the letters required by the various state licensing agencies. However, there is no indication that he did so. While none of the false transcripts prepared by Petitioner were directly submitted by her in any of the applications for licensure filed with any state licensing authorities, it is clear the Dean's certification letters included in Petitioner's 1983 Applications in some of the states were false. See Findings of Fact 39-44. No direct connection has been drawn between the false Dean's certification letters submitted with Petitioner's applications in Georgia and California and Pedro de Mesones. However, the circumstances surrounding Petitioner's dealings with Pedro de Mesones raise a question as to how the certifications were obtained. More importantly, it is clear that Petitioner was aware that the representations contained in the Dean's certifications and the dates of attendance at medical school listed on her 1983 Applications were false. Nevertheless, she still submitted the applications. Petitioner's dealings with Pedro de Mesones ended on June 14, 1982, two days after her graduation ceremonies at CETEC. Practice Experience Petitioner has at various times practiced medicine in Georgia and New Mexico prior to surrendering or losing her license in those states. She has also worked on cruise ships as a ship's doctor for several months. She is currently licensed and practicing in California. She has been licensed in that state since November, 1988. She has practiced emergency medicine at various hospitals and has been practicing as a primary care physician for Castle Air Force Base in California since December 1988. There is no indication that she has been deficient in carrying our her professional duties in any of these positions.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board of Medical Examiners enter a Final Order granting Petitioner's application for licensure as a physician in the State of Florida subject to a probationary period of two years upon such terms and conditions as the Board deems appropriate. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 2nd day of July, 1990. J. STEPHEN MENTON 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 2nd day of July, 1990. APPENDIX Both parties have submitted Proposed Recommended Orders. To the extent that the proposed findings of fact can be isolated, they are addressed below. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. 1. Adopted in substance in Findings of Fact 37, 46-50 and 67. 2. Aubored in substance in Findings of Fact 67 and 68. 3. Adopted in substance in Findings of Fact 69. 4. Adopted in substance in Findings of Fact 70. 5. Adopted in substance in Findings of Fact 71. 6. Adopted in substance in Findings of Fact 72. Adopted in substance in the preliminary statement. Adopted in substance in Findings of Fact 73. Adopted in substance in Findings of Fact 73. Adopted in substance in Findings of Fact 1. Subordinate to Findings of Fact 2-4 and 6. Adopted in substance in Findings of Fact 5. Subordinate to Findings of Fact 6. Suborindate to Findings of Fact 6 and 8. Adopted in substance in Findings of Fact 20. Adopted in substance in Findings of Fact 96. Adopted in substance in Findings of Fact 9. Subordinate to Findings of Fact 9. Adopted in substance in Findings of Fact 10. Adopted in substance in Findings of Fact 11 and 33. Subordinate to Findings of Fact 87. Subordinate to Findings of Fact 87 and 88. Subordinate to Findings of Fact 88. Subordinate to Findings of Fact 89. Subordinate to Findings of Fact 90-94. The first sentence is rejected as constituting argument. The second sentence is subordinate to Findings of Fact 94. Adopted in substance in Findings of Fact 95. Subordinate to Findings of Fact 35. Subordinate to Findings of Fact 35. Subordinate to Findings of Fact 35. Adopted in substance in Findings of Fact 36. Subordinate to Findings of Fact 36 and 39- 42. Adopted in substance in Findings of Fact 45. The first sentence is adopted in Findings of Fact 87. The remainder is rejected as irrelevant. Rejected as irrelevant. Rejected as irrelevant. Adopted in substance in Findings of Fact 73. Subordinate to Findings of Fact 47-66. Adopted in substance in Findings of Fact 47. Adopted in substance in Findings of Fact 48. Adopted in substance in Findings of Fact 50. Adopted in substance in Findings of Fact 51. Adopted in substance in Findings of Fact 49. Subordinate to Findings of Fact 54. Adopted in substance in Findings of Fact 55. Subordinate to Findings of Fact 57, 59-60. Subordinate to Findings of Fact 58. Suborindate to Findings of Fact 61. Adopted in substance in Findings of Fact 59. Subordinate to Findings of Fact 62-66. Subordinate to Findings of Fact 66. Subordinate to Findings of Fact 66. Adopted in substance in Findings of Fact 73. Adopted in substance in Findings of Fact 73. Subordinate to Findings of Fact 20-30. Adopted in substance in Findings of Fact 73. Adopted in substance in Findings of Fact 22 and 27. Adopted in substance in Findings of Fact 23. Subordinate to Findings of Fact 24. Adopted in substance in Findings of Fact 23. Subordinate to Findings of Fact 25-26. Adopted in substance in Findings of Fact 27. Subordinate to Findings of Fact 24 and 25. Adopted in substance in Findings of Fact 73. Subordinate to Findings of Fact 27. Adopted in substance in Findings of Fact 73. Subordinate to Findings of Fact 74. See proposed findings 26-30 above. Subordinate to Findings of Fact 79-80. Subordinate to Findings of Fact 81. Subordinate to Findings of Fact 82-83. Subordinate to Findings of Fact 38. Subordinate to Findings of Fact 78. Subordinate to Findings of Fact 83. Subordinate to Findings of Fact 77. Rejected as irrelevant. Rejected as irrelevant. Rejected as irrelevant. Rejected as irrelevant. Subordinate to Findings of Fact 78. Subordinate to Findings of Fact 84. Addressed in Findings of Fact 12-18. Rejected as irrelevant. Subordinate to Findings of Fact 12-19. The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. Adopted in substance in Findings of Fact 1. Subordinate to Findings of Fact 2. Subordinate to Findings of Fact 3. Subordinate to Findings of Fact 4. Adopted in substance in Findings of Fact 5. Adopted in substance in Findings of Fact 6. Adopted in substance in Findings of Fact 7. Subordinate to Findings of Fact 9 and 13. Subordinate to Findings of Fact 13 and 14. Subordinate to Findings of Fact 16. Subordinate to Findings of Fact 18. Subordinate to indings of Fact 35. Adopted in substance in Findings of Fact 37. Adopted in substance in Findings of Fact 48. Adopted in substance in Findings of Fact 39. Adopted in substance in Findings of Fact 44. Subordinate to Fndings of Fact 46-52 and 67- 68. Adopted in substance in Findings of Fact 69. Subordinate to Findings of Fact 78. Subordinate to Findings of 78. Subordinate to Findings of Fact 76. Adopted in substance in Findings of Fact 70. Subordinate to Findings of Fact 76, 77 and 78. Adopted in substance in Findings of Fact 71. Adopted in substance in Findings of 72. 26. Adopted in substance in the preliminary statement. 27. Adopted in substance in Findings of Fact 73. 28. Adopted in substance in Findings of Fact 73. 29. Adopted in substance in Findings of Fact 54. 30. Adopted in substance in Findings of Fact 56. 31. Adopted in substance in Findings of Fact 78. 32. Adopted in substance in Findings of Fact 63. 33. Adopted in substance in Findings of Fact 65. Subordinate to Findings of Fact 47-51. Adopted in substance in Findings of Fact 22. Subordinate to Findings of Fact 24-26. Adopted in substance in Findings of Fact 27. Adopted in substance in Findings of Fact 25. Subordinate to Findings of Fact 31 and 79- 81. Subordinate to Findings of Fact 29. Adopted in substance in Findings of Fact 12 and 17. Adopted in substance in Findings of Fact 19. Subordinate to Findings of Fact 87-95. Adopted in substance in Findings of Fact 20. Adopted in substance in Findings of Fact 97. Subordinate to Findings of Fact 87-95. Rejected as not supported by competent substantial evidence. Adopted in substance in Findings of Fact 40. Rejected as not supported by competent substantial evidence. Subordinate to Findings of Fact 47-68. Rejected as constituting argument. Rejected as constituting argument. Copies furnished: Paul Watson Lambert, Esquire Attorney at Law 1355 Mahan Drive P. O. Box 31 Tallahassee, Florida 32308 Allen R. Grossman, Esquire Assistant Attorney General Suite 1602 - The Capitol Tallahassee, Florida 32399-1050 Dorothy Faircloth Executive Director Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Kenneth E. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Employment Charge of Discrimination filed by Petitioner on November 16, 2005.
Findings Of Fact Stipulated Facts Petitioner was hired by TPB as a premise sales representative for TPB's office in Gainesville, Florida on or about April 3, 2006. Petitioner and other new hires attended TBP's new hire sales training course in Jacksonville, Florida, on or about April 3, 2006. Petitioner and the other newly hired employees were required to establish employment eligibility in accordance with the Employment Eligibility Verification Form, Form I-9. For Form I-9 purposes, Petitioner produced a driver’s license and social security card. The social security card had the following notation: “For Social Security and Tax Purposes: Not for identification.” TPB informed Petitioner that it could not accept the social security card he produced for purposes of fulfilling his Form I-9 requirements. TPB asked Petitioner to provide it with any other document(s) to satisfy his Form I-9 requirements. TPB informed Petitioner that he could go to the local social security office in Jacksonville to request a new social security card and/or obtain a letter from the social security office that indicated he had applied for same. No other new hire in Petitioner’s training class provided TPB with a social security card with the same notation that appeared on Petitioner’s card. TPB requested Petitioner to provide an acceptable document from List A, B, or C found on the back of Form I-9. Petitioner provided TBP with a copy of a Birth Registration Form. The Birth Registration Form was not a document listed in List A, B, or C referenced on Form I-9. At the time Petitioner was hired by Respondent, TPB had policies that prohibited, among other things, discrimination on the basis of race and national origin. Petitioner was aware that TPB had anti-discrimination policies in place. Petitioner’s employment with TBP ended on or about April 6, 2006. TPB informed Petitioner that his employment was terminated because he was unable to provide sufficient proof of employment eligibility with regard to Form I-9. Petitioner cannot identify any similarly situated TPB employees outside of his protected class who were treated more favorably. Facts Based Upon the Evidence of Record Petitioner is a black male who was born in Jamaica. He became a citizen of the United States sometime after arriving in this country in 1978.1/ Respondent, TPB, is an employer within the meaning of the Florida Civil Rights Act. TPB is the brand name or logo for White Directory Publishers, which publishes telephone directories. At the time Petitioner was hired, Terry Strickland was a regional sales trainer for TPB. He conducted the training course in Jacksonville for the group of new hires which included Petitioner. At the time of the training session, Mr. Strickland was not aware of Petitioner’s national origin. During the training course in Jacksonville, all new hires, including Petitioner, were required to complete a human resources packet and review PowerPoint presentations regarding TPB policies, including its anti-discrimination policy. The human resources packet included Form I-9. When Mr. Strickland received Petitioner’s social security card and observed the notation on the bottom, he informed Petitioner that TPB would not be able to accept the card for Form I-9 purposes. He then informed Petitioner that he could go to the local social security office during lunch to apply for a new card. While Petitioner went to the local social security office, he was unable to obtain a new card or a letter from that office as he did not have proper documentation with him to secure a new card. Mr. Strickland handled this matter with other new hires in other training sessions in the same manner. That is, any time he was presented with a social security card with the notation “not for identification purposes,” he has informed the person that the card is not an acceptable document for Form I-9 purposes and that other acceptable documents would have to be provided. Mr. Strickland also informed Petitioner that a birth certificate would be acceptable. However, when presented with Petitioner’s Birth Registration Form, he noted that it did not have a seal. Therefore, he faxed it to Susan Ruhland at TPB’s corporate headquarters in Buffalo, New York. Susan Ruhland is the human resources manager for Respondent. Ms. Ruhland was contacted by Mr. Strickland regarding Petitioner’s social security card. Ms. Ruhland spoke to Petitioner by phone and explained to him that his social security card was not acceptable based on requirements of the Department of Homeland Security. She also informed Petitioner that there are other means of identification or documentation that can be provided to satisfy Form I-9 requirements. Ms. Ruhland was not aware of Petitioner’s national origin when she spoke to him by telephone. Ms. Ruhland contacted the Department of Homeland Security to verify her understanding that Petitioner’s social security card was unacceptable for Form I-9 purposes. She received confirmation that her understanding was correct. Other than the Birth Registration Form supplied by Petitioner, Petitioner was not able to provide any other document to satisfy the Form I-9 requirements. He had recently applied for a passport and had sent original documents with his passport application. Ms. Ruhland could not accept the Birth Registration Form provided by Petitioner because it was not issued by a state, county, municipal authority or outlying possession of the United States, and it lacked an official seal. She informed Petitioner that if he could not provide the acceptable documentation within three days, that he would have to be dismissed. Employees of TPB in previous training courses of different races and national origins who submitted social security cards with the same notation that appears on Petitioner’s were treated in the same manner as Petitioner. Specifically, during the period of 2004 to August 2007, 17 new employees of TPB were asked to submit another document that fulfilled the Form I-9 requirements or go to the social security office to apply for a new card. Of those 17 employees, 12 were Caucasian, three were African-American, one Hispanic, and one American Indian/Alaskan Native. Mr. Strickland informed Petitioner on or about April 6, 2007, that TPB had to terminate his employment because he was unable to provide sufficient proof of employment eligibility with regard to Form I-9. There was no competent evidence presented that establishes that Petitioner’s termination was based on race or national origin.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 17th day of October, 2007, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 17th day of October, 2007.
