The Issue Whether the Petitioner should receive general revenue funds allocated to the Department of Children and Family Services.
Findings Of Fact The Petitioner is an 18 year-old female who is eligible for services as an individual with mental retardation. The Department (or its predecessor) first provided benefits to the Petitioner in 1985 based upon such eligibility (Downs Syndrome). Although an applicant for services in the Department’s District 15, the Petitioner currently attends a residential placement in Miami, Florida. From the undisputed evidence, Petitioner is performing well in her placement and is learning life skills. Petitioner exhibits child-like behaviors, however, and is dependent on adult supervision for her well being. The Petitioner is a client of the Department’s Developmental Disabilities Program and would have received the benefits requested in this cause but for the lack of funds. It is the Department’s position that the appropriations allocated to the Department by the Legislature did not provide sufficient funds to meet the Petitioner’s claim and that it would be unlawful for the Department to exceed its appropriated budget. Because the Department does not have funds for all of the eligible recipients (clients), the Department prioritizes the claims and places clients whose benefits are not provided on a waiting list. In fact, the Petitioner is on the Medicaid Waiver Program waiting list for the services sought. The Petitioner’s mother has provided for her daughter and incurred debt to do so. She must have financial assistance in order to keep the Petitioner at the school where she is doing well. The Department provides assistance for persons like Petitioner only when they are deemed to be “in crisis.” The Department maintains that the Petitioner does not currently meet its definition for “crisis” intervention. The Petitioner’s services from the Developmental Disabilities Program were canceled without notice to the Petitioner in 1988. The Petitioner timely sought benefits in 1998 or 1999 and would be receiving the benefits now sought had the Department properly processed the application through the correct program. The Department appropriates funds through its district offices. In this case, District 15 (where the Petitioner’s mother resides) does not have funds available to meet the Petitioner’s claim. Whether statewide funds are unavailable is unknown. Were the Petitioner’s mother to abandon the Petitioner, it is unlikely the Petitioner could provide for her own needs; she would be in “crisis.”
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a final order granting Petitioner’s request for services. DONE AND ENTERED this 23rd day of December, 2002, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 23rd day of December, 2002. COPIES FURNISHED: Paul F. Flounlacker, Jr., Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700 Laurel Hopper, Esquire Department of Children and Family Services 337 North Fourth Street Fort Pierce, Florida 34950 William N. Swift, Esquire William N. Swift, P.A. 901 Southwest Martin Downs Boulevard Suite 208 Palm City, Florida 34990
The Issue The issue in this proceeding is whether Petitioner Ryan Flint, the minor son of his personal representative and mother, Madeline Flint, should immediately receive developmental services or remain on a waiting list for such services until funding is available.
Findings Of Fact At the time of the hearing, Ryan Flint was three years old and has been identified as being on the "autism spectrum." Autism spectrum puts Ryan at risk of having a developmental disability, but is not itself a developmental disability. Testing at a later date will ascertain whether he actually has a developmental disability. Until such testing can be accomplished, however, pursuant to federal law and long-standing policy, the Department regards Ryan Flint as a client because of his risk status. The parties stipulated that Ryan is eligible for services of the Developmental Services Program. Ryan became a client of Developmental Services on June 20, 2000. Despite the rejection language of the notice of denial letter, Ryan was placed on a waiting list and may ultimately be provided the requested services from Respondent. Currently, there are approximately eight thousand persons who became clients of the Developmental Services Program after July 1, 1999. Ryan was receiving services through Children's Home Society. However, because he turned three years old he no longer qualifies for services under that program. Children's Home Society referred him to Developmental Services for evaluation. Mrs. Flint recalls that the "intake" for services was done May 11, 2000. It was Mrs. Flint's impression from the intake interview that Ryan would receive the requested services. This continued to be her impression when Ryan's service plan was written in June of 2000. Ryan currently receives some occupational therapy services through the local school board. However, these occupational services are limited to those which are only educationally necessary such as writing skills and do not extend to other non-educational skills such as running. A long and complex chain of events and circumstances led to the situation faced by Ryan Flint. Prior to the 1999 legislative session, the Department identified 23,361 Developmental Services clients who were either not getting services from the developmental services program or who were not receiving adequate services. The Department's Legislative Budget Request for fiscal year 1999-2000, included a plan to address the underserved clients over a two-year period. Under this plan, 15,984 of the identified 23,361 clients would be served during fiscal year 1999-2000, with the remaining 7377 clients to be added to the group in fiscal year 2000-2001. The Legislature elected to route the new moneys into the Medicaid Waiver program. That program provided for a 45/55 State/Federal match, under which fifty-five cents of federal moneys would be provided for every forty-five cents contributed by the Florida Legislature. Since most of these clients resided in the community and not in institutions, the program utilized under this plan was not the Institutional Medicaid program, but the Home Community Based Waiver program. The Home Community Based Waiver program, also called the Medicaid Waiver program, differs from the Institutional Medicaid program. The Institutional Medicaid program is an entitlement program. The Medicaid Waiver program is not. Consequently, the moneys which fund the Medicaid Waiver program are limited and claims on such programs must be prioritized. The Legislature directed the Department to prioritize these limited funds in proviso language of the 1999-2000 Appropriations Act: . . . Priorities for this funding, in order, are as follows: 1) Transitions for those requesting transfers from Intermediate Care Facilities for the Developmentally Disabled (ICF/DD) institutional placements into Home and Community Based Waiver residential placements, and 2) Meeting the needs of identified under-served participants in the Home and Community Based Waiver Services after accurately assessing the actual costs of each person's support plan. The 2000 Appropriations Act contained proviso language identical to that found in the 1999 Appropriations Act referenced in paragraph 9. The Department implemented this legislative mandate by implementing policy that, except for crisis situations, only persons who were clients on July 1, 1999, would receive services. All others would be put on a waiting list. Ryan Flint is not eligible for the Medicaid Waiver Program. The funds Mrs. Flint seeks come from another source, the Individual and Family Support appropriation. However, as a matter of policy, the Department has applied the prioritization described in paragraph 11, not only to the appropriations made through the Medicaid Waiver program, but also to those relating to the Individual and Family Support appropriation. This policy was communicated to the Department's District Administrators and Developmental Services Program Administrators in a memorandum dated May 22, 2000. Utilizing this policy, the result in this case is the same as if Ryan had been on the Medicaid waiver. Jo Ann Braun, a Human Services Counselor with the Department, was not aware of the new policy until August of 2000. Thus, she could not have been aware of the new policy at the time she wrote Ryan's service plan which was in June 2000. According to Ms. Braun, as this policy was in the process of being disseminated through the Department, there may have been some clients who did not meet the crisis criteria and who entered the system after July 1, 1999, who received services. However, once the Department staff received and began implementing the policy, new clients were put on the waiting list and did not begin to receive services. In the past two years, the Legislature has not appropriated any new funds under the Individual and Family Support Program. Thus, since the existing client base in Developmental Services remained static, the new client base has increased by approximately 8,000 clients since July 1, 1999. Since the client base increased by 8,000 but the funding did not increase, the Department was faced with a decision as to how to fairly and consistently use the funding that was available. The Department determined that the only way it could provide funds to new clients would be by withholding services from existing clients who already received these services. However, it is not the policy of the Department to take money from someone who already is receiving services and give it to someone new. Faced with two choices, neither of which was desirable, the Department implemented a policy which requires that the allocation of Developmental Services moneys be made on a consistent basis. That is, the Department elected to apply these moneys in a manner consistent with the Medicaid Waiver appropriation. Moreover, many of the clients who receive Medicaid Waiver funds also receive Individual and Family Support funds. Additionally, the Department's prioritization puts at the top of the list those clients who are in crisis. Under these circumstances, the Department's decision to allocate the Individual and Family Support moneys in the same manner as the Medicaid Waiver moneys is not unreasonable or arbitrary. Applying the Department's policy, Ryan can only receive services if he is in crisis because he became a client after July 1, 1999. The Department has identified six conditions which, if present, constitute a crisis which would permit it to provide services to persons who became clients after July 1, 1999. These are: A court order from a criminal proceeding requires the Department to provide services. The client is highly dangerous to himself or others, and danger will continue if services are not provided immediately. The client is living in a high risk situation in which abuse and/or neglect is occurring or likely to occur. The client is homeless, living either in a homeless shelter or on the street. The caregiver is unable to provide care for the client, no alternative arrangements are possible, and without the provision of services, the client cannot safely remain with the caregiver. Other circumstances exist which will present a danger to the client's safety and/or security if services are not provided. The parties stipulated that Ryan Flint met none of the foregoing criteria. Consequently, the Department did not provide him the services his mother sought on his behalf.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Children and Family Services enter a Final Order leaving Ryan Flint on the waiting list of clients to be served by the Department's Developmental Services Program, and providing those services to him as soon as funds become available to do so. DONE AND ENTERED this 12th day of January, 2001, in Tallahassee, Leon County, Florida. 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 12th day of January, 2001. COPIES FURNISHED: Madeline Flint 1327 Conservancy Drive Tallahassee, Florida 32312 John R. Perry, Esquire Department of Children and Family Services 2639 North Monroe Street, Suite 100A Tallahassee, Florida 32399-2949 Virginia A. Daire, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
The Issue The issue for determination is whether Petitioner must reimburse Respondent an amount up to $269,456.35, which sum Petitioner received from the Florida Medicaid Program in payment of claims arising from Petitioner's treating of AIDS patients with infusions of intravenous immune globulin between January 1, 1996, and August 11, 2000. Respondent contends that Petitioner is not entitled to retain the payments in question for several reasons, the principal one being that the subject treatments allegedly were not medically necessary.
Findings Of Fact Background Petitioner Patrick Cadigan, M.D. ("Cadigan") is a physician who has been licensed to practice medicine in Florida since 1988. Board certified in internal medicine, Cadigan specializes in the treatment of patients with HIV infection and AIDS.2 At all times relevant to this case, Cadigan practiced in Miami-Dade County. Respondent Agency for Health Care Administration ("AHCA" or the "Agency") is the state agency responsible for administering the Florida Medicaid Program ("Medicaid"). Cadigan was, at all relevant times, a Medicaid provider. From time to time, therefore, he had entered into various written contracts with the Agency, which will be referred to collectively as the "Provider Agreement." During the relevant time frame, from 1996 to 2000, Cadigan saw patients in two separate clinics, one in North Miami and the other in Miami Beach. Cadigan had a separate Medicaid Provider Number for each office. Around the mid-1990s, Cadigan began infusing some of his AIDS patients with intravenous immune globulin ("IVIG"). IVIG is a biological product derived from blood. Its use in treating adult AIDS patients was controversial, if for no other reason because there was relatively little data on the efficacy of IVIG replacement therapy as an AIDS treatment.3 Some studies, however, had concluded that IVIG could, in fact, be used to beneficial effect in the treatment of AIDS. The most important of these studies, according to the instant record, was conducted by Dr. Michael Kiehl at the University of Munster, Germany, between August 1991 and June 1994 (the "Kiehl Study"). In December 1996, an article reporting on the Kiehl Study was published in the American Medical Association's Archives of Internal Medicine. In this article, Dr. Kiehl and his research colleagues stated their conclusion that the prophylactic use of IVIG therapy to treat AIDS patients "decreases the frequency of serious infections and is associated with a reduction of hospitalization for short-term care." It should be noted that the Kiehl Study did not purport to be the last word on the issue of IVIG therapy as an AIDS treatment; while confident that the results of their "randomized open study" had demonstrated the "obvious benefits of [IVIG] treatment," the Kiehl Study's authors nevertheless acknowledged that "a double-blinded, placebo-controlled study [was] urgently needed." Cadigan was impressed by the Kiehl Study. The results of the Kiehl Study were consistent with Cadigan's empirical findings that his patients seemed to feel healthier, have fewer infections, and otherwise respond positively to treatment with IVIG. Cadigan was not alone in prescribing IVIG for AIDS patients in the 1990s. In fact, quite a few physicians, mostly in South Florida, were billing Medicaid for this treatment——so much so that AHCA began to take notice. At around $1,800 per infusion, IVIG was relatively expensive, and the Agency became concerned about the amount of money that Medicaid was spending on IVIG replacement therapy for AIDS patients. In 1995, the Agency started identifying Medicaid providers who were prescribing IVIG, for the purpose of auditing them. The first provider to be audited was the Mayer Foundation, a clinic in Miami that primarily treated AIDS patients. The Agency conducted the audit using a so-called "generalized analysis," or "GA" for short. In a GA audit, the provider's claims history is reviewed for policy violations—— usually of an obvious nature. One such a violation, as an example, would be billing for an office visit and a urinalysis with respect to a single patient on the same day. Medicaid will not pay both charges, on the theory that the urinalysis should be included in the office visit. A generalized analysis can spot this kind of policy violation without resort to reviewing individual patient's charts. In the case of the Mayer Foundation, the putative violation was less obvious, because Medicaid did not have a policy specifically prohibiting the use of IVIG in the treatment of AIDS patients. However, because Medicaid only reimburses providers for medically necessary services, there is effectively a general prohibition against any and all treatments that can retrospectively be deemed medically unnecessary. Thus, as part of the GA audit of the Mayer Foundation, the Agency consulted with a physician peer reviewer, Dr. Scott Folk, who gave the opinion that IVIG was not a medically necessary——and hence not a Medicaid compensable——treatment for patients with AIDS. Dr. Folk's opinion became the basis of an incipient policy of exclusion regarding IVIG——a policy that could easily be applied using the GA auditing method. In due course, other South Florida Medicaid providers known to be prescribing IVIG, including Cadigan, came under AHCA's scrutiny as well. In January 1996, AHCA asked Cadigan to produce the records of five patients, which he did.4 After receiving these records on February 8, 1996, the Agency forwarded them to Dr. Folk for review. On April 18, 1996, Dr. Folk again gave AHCA his opinion that IVIG was not a medically necessary treatment for patients with AIDS. After that, Dr. Folk refused to review additional medical records until his (and the Agency's) opinion that IVIG was not a medically necessary treatment for AIDS had been vetted in an administrative proceeding. Consequently, the Agency decided to demand recoupment from the Mayer Foundation and pursue that demand as a test case. In the meantime, the audit of Cadigan was put on hold pending the outcome of the test case. The Agency did not notify Cadigan that emerging Medicaid policy deemed IVIG medically unnecessary for the treatment of AIDS patients.5 As it happened, the case against the Mayer Foundation was settled before an administrative hearing was had. To proceed with the audits of Cadigan and others, the Agency decided to obtain a second opinion on medical necessity, so it sent various providers' medical records to Dr. Margaret A. Fischl at the University of Miami School of Medicine. Although these records remained with Dr. Fischl for about a year and half, she did not render an opinion for the Agency, one way or the other, regarding the efficacy of IVIG. As a result, the Agency retrieved the documents from Dr. Fischl and sought out another suitable peer reviewer. In November 1998, the Agency retained Dr. Joseph W. Shands, Jr., a professor at the University of Florida College of Medicine, as its peer reviewer. At the time, Dr. Shands was 68 years old and partially retired, although he was still seeing patients, including persons with AIDS. (Dr. Shands was fully retired as of the final hearing.) Dr. Shands believed, as had Dr. Folk, that IVIG replacement therapy was not medically indicated for AIDS patients. After being hired as the Agency's expert, Dr. Shands reviewed the medical records that the Agency had gathered from Cadigan two years earlier. In October 1999, he told the Agency that there was "no justification" for Cadigan's having prescribed IVIG for his AIDS patients. Based upon Dr. Shands's opinions and its audit of Cadigan's claims-payment history and selected medical records, the Agency issued two Final Agency Audit Reports on July 31, 2001——one report for each of Cadigan's offices. In these reports, the Agency alleged that Cadigan had been overpaid $28,020.38 and $241,435.97, respectively, for Medicaid claims involving IVIG infusions. (Later, on August 21, 2002, the Agency would issue an Amended Final Agency Audit Report concerning the alleged $241,435.97 overpayment which added additional grounds for recovering such amount.) On January 8, 2002, the Agency published its policy regarding IVIG as a so-called "Banner Notice," that is, a statement inscribed upon the remittance vouchers sent to physicians participating in Medicaid. One of the first public pronouncements of the Agency's policy,6 the Banner Notice advised providers that Medicaid coverage for IVIG would be limited to specified diagnoses. Some of the Medicaid authorized uses of IVIG were "off-label" (meaning not FDA-approved) uses. As a preface to the ultimate factual determinations, issue-framing findings will next be made regarding the parties' respective positions. The Agency's Case As pleaded, the Agency' main theory of recovery was premised on the "policy" that IVIG replacement therapy is not a medically necessary treatment for AIDS patients.7 The Agency further alleged, as distinct but related grounds, that this use of IVIG was "experimental," "clinically unproven," and not FDA- approved (i.e. "off-label"). In its Amended Final Agency Audit Report issued on August 21, 2002, the Agency added, with regard to the alleged $241,435.97 overpayment, that (a) Cadigan's medical records failed to demonstrate the medical necessity of the IVIG treatments for which Medicaid had reimbursed him and (b) Cadigan was unable to produce documents proving that he had had enough IVIG on hand at the relevant times to dispense to his patients in the quantities shown in the claims at issue. On the question of medical necessity, the Agency's expert witness at hearing was Dr. Shands, whose opinion remained that IVIG therapy is not appropriate for AIDS patients because it affords little or no benefit at great cost.8 Dr. Shands did allow that IVIG might be medically necessary for AIDS patients who happened also to be diagnosed with a separate (perhaps secondary) condition such as thrombocytopenia, for which IVIG would be indicated. But this possibility did not amount to an exception to his negative opinion regarding the treatment of AIDS patients with IVIG because in such instances the AIDS diagnosis would be neither determinative nor even especially relevant; instead, the other condition (e.g. thrombocytopenia) would drive the determination of medical necessity.9 Dr. Shands also reviewed the medical charts of the 28 patients whose treatments led to the alleged $241,435.97 overpayment. Specifically, Dr. Shands looked in the charts for evidence that a particular patient or patients might have had one of the several conditions, besides AIDS, that reasonably could have been treated, in his opinion, with IVIG replacement therapy. He found one——Patient #6——whose IVIG infusions were, in his opinion, medically necessary. With regard to the other patients, Dr. Shands found nothing in the medical records justifying the use of IVIG. On other issues, Dr. Shands essentially disclaimed the Agency's contention that the use of IVIG in the treatment of AIDS patients was "experimental." He also acknowledged that IVIG is (and was, at all relevant times) an FDA-approved product. Dr. Shands conceded that some off-label uses of IVIG are medically necessary and thus Medicaid compensable.10 In short, Dr. Shands's testimony did not persuasively support the Agency's allegations that the claims at issue should be denied on grounds that the use of IVIG to treat AIDS patients was experimental or not FDA-approved. In support of its allegation that Cadigan's medical records failed adequately to document medical necessity, the Agency offered (in addition to Dr. Shands's testimony) the charts of 28 patients. After the final hearing, the Agency agreed to remove six of these patients from the audit. One, just mentioned, was Patient #6. The others were Patient ##7, 11, 19, 21, and 26. The total dollar amount of the claims associated with these six patients is $3,980.78, which sum, the Agency stipulated, could be subtracted from the original demand of $241,435.97. After these adjustments, therefore, the relevant documentary evidence regarding Cadigan's medical records comprises 22 patient-charts, and the total demand for recoupment in connection with this group of patients is $237,455.19. With regard to the allegation that Cadigan was unable to produce documentary evidence of his IVIG inventory, the evidence is undisputed: Cadigan admitted that he possessed no records showing that he had purchased IVIG for resale to his patients. Cadigan's Case Cadigan challenged the Agency's case along two fronts. First, he sought affirmatively to prove that the IVIG treatments at issue were, in fact, medically necessary. Second, he raised several points as affirmative defenses. On medical necessity, Cadigan testified credibly that his patients actually benefited from IVIG replacement therapy. He claimed——and the evidence does not disprove——that his patients felt better, had more stamina, needed fewer hospitalizations, had fewer infections, and experienced fewer neuropathies, when treated with IVIG. While this sort of "anecdotal evidence" is not the equivalent of data from a controlled clinical study, it is some evidence, at least, that the treatment works for some patients some of time. There is little evidence in the record of a technical nature explaining how or why IVIG might benefit AIDS patients. Cadigan described his understanding of the operation of IVIG in laymen's terms, stating that the product provides a temporary (approximately one month) boost to the patient's immune system, which protects the patient against opportunistic infections and other complications of immunosuppression until other types of treatment allow the patient's immune function to improve. One important indicator of the health of a patient's immune system is his CD4-cell count. A normal, healthy immune system will produce a CD4-cell count, which is measured through a blood test, in the range between 500 and 1800. A count below 200 is generally considered a sign that AIDS has developed. Cadigan testified that many of the patients whose treatment is at issue had CD4-cell counts below 200 and that some had counts in double or single digits.11 Cadigan also testified that many of his patients had blood disorders secondary to AIDS that required treatment with IVIG. These disorders were thrombocytopenia, which is characterized by low blood platelet counts; agranulocytosis, which results in low white blood cell counts; and neutropenia, a condition manifested by low neutrophil counts in the blood. As Cadigan further pointed out, the Agency's existing policy recognizes that IVIG might be medically indicated for the treatment of these illnesses.12 As mentioned, Cadigan urges, through a number of positions that are effectively affirmative defenses, that he should not be liable to Medicaid even if the IVIG treatments at issue be found medically unnecessary. A summary of his principal defenses follows. Unadopted rule. Cadigan maintains that the Agency's policy——that IVIG is not a medically necessary treatment for AIDS——is a statement of general applicability meeting the definition of the term "rule" set forth in Section 120.52(15), Florida Statutes.13 He contends that the Agency should be precluded from relying upon the policy because it failed properly to adopt the policy as a rule, in violation of Section 120.54(1)(a). Breach of Duty. Cadigan claims that, in early 1996, the Agency knew (or at least was inclined to believe) that IVIG was not medically necessary for AIDS patients and also knew that Cadigan was actively prescribing IVIG for his AIDS patients, yet failed immediately to tell Cadigan that IVIG was likely to be declared noncompensable, allowing him to run up several years' worth of alleged overpayments that could have been avoided. Cadigan contends, in short, that the Agency breached a duty to prevent him from continuing to prescribe IVIG to his Medicaid- covered AIDS patients. Cadigan suggests various sources of this duty, including public policy, tort law, and an Internal Operating Procedure that requires the Agency to notify a provider of proposed agency action "[w]hen . . . a determination of . . . a violation [of Medicaid law]" has been made. Such a duty is not, however, imposed under federal law, the state Medicaid statutes or rules, or the Medicaid Provider Agreement. Waiver and Estoppel. Cadigan asserts that the Agency should be barred from recovery in this case under equitable principles borrowed from federal Medicare law, which latter forgives providers for overpayment liability if (to oversimplify) they are without fault. The inherent weakness in this argument——which Cadigan concedes——is that, for whatever reasons, neither Congress nor the Florida Legislature has chosen to include similar provider protections in the Medicaid laws. As additional and alternative grounds for waiver or estoppel, Cadigan again points to the Agency's conduct in paying claims for IVIG despite having decided (without telling Cadigan) that such treatment was medically unnecessary. Lack of Peer Review. Cadigan attacks the evaluation of his professional practices by Dr. Shands as violative of the statutory requirements for peer review. This attack takes two distinct forms. One focuses primarily on the fact that Dr. Shands was in the process of retiring when he began his review and was fully retired as of the final hearing. Thus, Cadigan claims, Dr. Shands was not in "active practice" as required by Section 409.9131(2), Florida Statutes. The other relies on the fact that Dr. Shands (evidently) did not review the charts of the patients whose treatments led to the alleged $28,020.38 overpayment. On this latter point, it should be noted that there is no testimony specifically relating to these patients, and their medical records are not in evidence.14 Third-Party Records Custodian. As an explanation for his failure to produce inventory records, Cadigan states that he was an employee of Home Patient Care of America, Inc. ("HPC") from September 1995 until March 1998, and that HPC not only purchased the medications (including IVIG) that Cadigan dispensed but also maintained the records of these transactions. Unfortunately for Cadigan, however, HPC later went out of business, and Cadigan was unable to obtain the records showing that IVIG had been bought in sufficient amounts to support the Medicaid claims at issue. AHCA did not refute Cadigan's evidence in this regard. Instead, it maintains that Cadigan, as the Medicaid provider, was personally responsible for maintaining the records. Thus, claims the Agency, the fact that HPC kept the records (and perhaps lost them) is no defense. (The Agency might have added that, even if this were a defense, it would not be a great one, because, as will be seen, the majority of the infusions in question occurred after March 1998, when Cadigan presumably was again in control of all his records.) Ultimate Factual Determinations The Policy. The undersigned agrees with Cadigan that, at some point prior to the final hearing, but not later than the date of the Banner Notice, the Agency's policy of denying Medicaid coverage for "medically unnecessary" IVIG replacement therapy (when administered as a treatment for AIDS) matured into a statement of general applicability that prescribes Medicaid policy. It is determined, therefore, that this policy of IVIG exclusion is a rule-by-definition. See § 120.52(15), Fla. Stat. (definition of "rule"). This finding is of limited utility, however, because Cadigan did not file an original petition with DOAH challenging the Agency's policy pursuant to Section 120.56(4), Florida Statutes. As a result, the undersigned does not have jurisdiction in this action to determine whether the Agency violated Section 120.54(1)(a), Florida Statutes. Further, Cadigan never notified the Agency that he might be seeking relief pursuant to Section 120.57(1)(e), Florida Statutes. Thus, the undersigned is constrained not to subject the policy to a de novo review in accordance with Section 120.57(1)(e).15 The question next arising is whether the Agency established an adequate factual predicate for its policy. In this regard, it is determined that, at least as of the final hearing, the Agency had reasonable, nonarbitrary grounds for a general policy of exclusion with regard to IVIG as a treatment for AIDS.16 The Agency's general policy of exclusion was supported by such considerations, taken together, as IVIG's efficacy (which is fairly debatable), cost (which is high), and availability (which is limited).17 Here, the undersigned must make——and emphasize——a negative finding: The evidence, taken as a whole, does not establish that IVIG was never medically necessary for any AIDS patient during the relevant period.18 That is, the Agency's policy of exclusion was not justified solely on the basis that IVIG was an ineffective treatment for AIDS patients in the years 1996 through 2000.19 Rather, the general policy, as proved, admits the possibility that medical necessity might exist in a given instance. Thus, the Agency's proving-up of its policy- based exclusion is not the equivalent of demonstrating that the IVIG treatments in question were not medically necessary for the individual patients whom Cadigan cared for between 1996 and 2000.20 The upshot is that the Agency's policy-based exclusion, as proved, cannot be applied to deny coverage for the subject treatments, which might otherwise have been within Medicaid coverage per the governing laws and Provider Agreement in effect at the time services were provided.21 Thus, medical necessity must be determined in this case on a patient-by- patient basis. The patients. To make patient-specific determinations of medical necessity, the undersigned carefully reviewed the charts in evidence, as well as the testimony provided by Doctors Shands and Cadigan. In the course of this review, it became apparent that the most relevant patient-data were those pertaining to a patient's condition at or around the time of a disputed infusion. This is because: (a) most of the charts cover several or more years of treatment; (b) patients' conditions, generally speaking, were fluid, getting better or worse over time; and (c) although the audit period covers four years, seven months, and 11 days, 90 percent of the disputed infusions occurred in 1998 and 1999.22 Thus, the undersigned determined that if a patient received, say, one disputed infusion in February 1999, that patient's condition in February 1996 would not be relevant in deciding whether the disputed infusion was medically necessary.23 It was then determined a "snapshot" of these patients' conditions on the relevant dates could be obtained from the blood test results, which for most of these patients are available on a monthly basis. Based on the testimony presented at hearing, the undersigned decided to focus on five lab values: CD4-cell count ("CD4"); absolute neutrophil count ("ANC"); white blood cell count ("WBC"); platelet count ("PLT"); and the CD4/CD8 ratio. Based on the evidence in this case, the undersigned developed the following framework for determining medical necessity in a given patient's case.24 Medical necessity would be established for a particular infusion if, at or around the time of the disputed infusion, the patient met one of the following profiles: The patient's CD4 count was less than 200 and at least one of the following lab values was out-of-range: ANC, WBC, PLT, and CD4/CD8 ratio (collectively the "Other Results"). The patient's CD4 count was 200 or greater but less than 500 and at least two of the Other Results were abnormal. (1) (a) The patient's CD4 count was less than 200; (b) The patient's CD4 count was 200 or greater but less than 500 and at least one of the Other Results was abnormal; or (c) Any two of Other Results were abnormal; and (2) contemporaneous clinical progress notes specifically document a condition or conditions suggesting a significant impairment of immune function, such as recurrent serious infections. To implement this decisional framework, the undersigned extracted the relevant data from the charts and recorded such data on tables created for each of the 22 patients. The tables are hereby incorporated by reference in this Recommended Order. The original tables will be transmitted to the Agency as Appendix A of the Confidential Appendix to this Recommended Order.25 (A copy of the entire Confidential Appendix will be provided to all counsel of record.) Next, on separate tables, the undersigned recorded each of the dates of service in question for the 22 patients, and noted whether, on these dates, the patient met either Profile A, B, or C as described above. The tables showing this information are hereby incorporated by reference in this Recommended Order. The original tables will be transmitted to the Agency as Appendix B of the Confidential Appendix to this Recommended Order. Finally, on separate tables, the undersigned recorded the disallowed claims per patient, according to dates of service, claim code, and amount. This facilitated the computation of a per-patient overpayment. The sum of these per- patient overpayments equals the total overpayment. The tables showing this information are hereby incorporated by reference in this Recommended Order. The original tables will be transmitted to the Agency as Appendix C of the Confidential Appendix to this Recommended Order. Before turning to the per-patient overpayment data, some additional observations on the above methodology are in order. First, it turned out that 26 infusions (out of 126) were found medically necessary because the patient met Profile A. Eighteen were found medically necessary because the patient met Profile B. Thirty of the infusions were given to a patient who satisfied the criteria of Sub-Profile C(1)——but in none of these instances did the patient also meet Sub-Profile C(2). Thus, none of the infusions at issue could be found medically necessary under Profile C. At bottom, 44 infusions were found medically necessary; 82 were not. Second, all of the 44 infusions that the undersigned has determined were medically necessary were also proved, by contemporaneous records in the charts, to have been performed, as claimed. In other words, lack of documentation did not provide a basis to disallow an otherwise medically necessary infusion. Third, various problems with the blood test records were observed in connection with 40 of the 82 disallowed infusions. Because the problems were potentially outcome determinative, more needs to be said about them. The problems in question fall into three groups: the relevant blood test record was either illegible, or incomplete, or unavailable. The undersigned determined that these problems neither undermine nor invalidate the methodology used, for the following reasons. Illegibility played a role in the determination in 15 instances. It is possible that some of these infusions might have been found medically necessary if good copies of the blood work had been offered into evidence. However, because the burden was on Cadigan, ultimately, to ensure that legible copies of the medical records were received in evidence, it is determined that the consequences of bad copies should fairly fall on him. In ten instances, the blood work was available but incomplete, meaning that one or more of the values that the undersigned was looking for were not found in the record. Interestingly, nine of these involved infusions administered to one patient (#16) in just three months (February, April, and May of 1996). Any potential unfairness to Cadigan was ameliorated, however, by the fact that both of the patients involved (the other was Patient #4) satisfied Sub-Profile C(1) for each of the ten infusions under consideration. Thus, their charts were carefully examined for indicia of medical necessity apart from the blood work, and none was found. Finally, there were 15 instances where blood work was unavailable for a disputed infusion. This category was determined to present the greatest potential for unfairness to Cadigan. The undersigned reasoned that a particular blood test record could be unavailable either because (a) although it exists (or once existed), it was not (or could not be) offered into evidence at hearing or (b) no blood test was ordered for the particular month in with the infusion was given. As with illegible documents, the negative consequences of situation (a) can fairly be assigned to Cadigan, whose burden it was to maintain and produce complete medical files. Situation (b) is distinguishable, however, because there was no proof that blood work needed to be ordered every month for every patient. Fortunately, it is possible to make a simple adjustment to mitigate any unfairness that might have arisen from situation (b). In this regard, it is worth noting, initially, that the problem of unavailable blood tests results is relatively minor, affecting only 15 out of 126 claims. There was, in fact, a remarkable consistency in Cadigan's ordering of blood work on a regular——usually monthly——basis. Getting to specifics, of the 15 dates of service for which there is no corresponding blood work, eight involve one patient (#17). Seven of these eight comprise all of the disputed infusions administered to Patient #17 in 1999. Put another way, there is no blood work for Patient #17 in connection with any of the seven infusions for which claims were made in 1999. Because Cadigan routinely ordered blood work, it is reasonable to infer, and is found, that blood tests were taken contemporaneously with these seven visits. Thus, the unavailability of test results for Patient #17's seven infusions in 1999 can be attributed to situation (a) as described above. In contrast, the other eight instances of unavailable blood test results cannot be as easily characterized. Giving Cadigan the benefit of the doubt, the undersigned infers that these eight instances can be attributed to situation (b). Because 44 out of 118 infusions were found medically necessary, it is inferred that the same rate of success——37 percent——would obtain with respect to the remaining eight infusions if blood tests were available, which means that three of these eight should be allowed. It is therefore determined that to mitigate any possible unfairness to Cadigan resulting from the use of blood tests to evaluate medical necessity in connection with infusions administered at times where it might not have been necessary to order such blood tests, an amount equal to three times the average per-claim overpayment should be subtracted from the total overpayment. Having described the methodology for determining medical necessity in this case and explained that the details of this methodology's implementation are set forth in the Confidential Appendix, the bottom-line findings can be disclosed. The table below shows the per-patient overpayments that the undersigned has determined exist. Patient Number Overpayment This Patient 1 9,001.58 2 1,803.11 3 1,801.47 4 1,801.47 5 4,751.47 8 14,365.67 9 1,801.47 10 0 12 8,935.36 13 1,801.47 14 6,881.78 15 11,474.34 16 19,939.20 17 26,630.85 18 0 20 1,801.47 22 6,552.94 23 1,801.47 24 1,493.87 25 3,593.89 27 32,062.82 28 1,450.61 The sum of these per-patient overpayments is $159,746.31. To offset the possible unfairness stemming from unavailable blood test results, an amount equal to three times the average per-claim overpayment ($1,948.13),26 or $5,844.39, should be subtracted from the foregoing sum, producing an overpayment liability of $153,901.92. As a check on the preceding results, the undersigned re-reviewed the clinical progress notes for Patient ##8, 15, 16, 17, and 27, whose disallowed claims comprise approximately 65 percent of the total. This second-level review, which produced the following observations, did not persuade the undersigned that using the above-described framework had led to an unjust or incorrect result. Patient #8 was given disputed IVIG infusions between January and August 1998. Then in her late 20s, this patient presented in November and December 1998 with swollen lymph nodes in her neck. Evidently this complaint was resolved, however, because it is not mentioned in the treatment notes made contemporaneously with the disputed infusions. In or around January 1999, the patient was hospitalized for an unspecified viral infection, which was apparently treated successfully. Yet, at the time, her CD4-cell count was in the normal range at 504, which suggests that the HIV infection was under control.27 In January and February 1999, the treatment notes indicate that Patient #8 might have had a fungal infection in her ears. In March 1999, she was treated for a yeast infection. On the whole, the medical records do not persuasively establish that Patient #8 was suffering from recurrent, serious infections warranting the disallowed IVIG infusions. The disputed infusions that Patient #15 received occurred between January and July 1999. This patient, then in his early 50s, had medical problems unrelated to AIDS, such as diabetes and hypertension. In January and February, and at least through April 1999, he suffered from kidney stones. Also during that period, he had an upper respiratory infection, which produced mild symptoms and was treated conservatively. The treatment notes do not describe the respiratory condition as serious, however, and Patient #15's CD4-cell count remained in the normal range throughout. Patient #16, who was infused between February and May 1996, is described in the contemporaneous treatment notes as doing well, except for a bout of diarrhea in February. There is no indication that he was suffering from serious, recurring infections at the time of the disputed IVIG infusions. Patient #17 received 16 disputed infusions between April 1998 and September 1999. There are no clinical progress notes in the record for 1999 after January 19. The records in evidence do not indicate that Patient #17 was suffering from serious, recurring infections at the time of the disputed IVIG infusions (although the IVIG infusion given in May 1998 was deemed covered based on his blood work). Patient #27 was in his late 30s when he received 19 disputed IVIG infusions between April 1998 and August 1999. He was diabetic, obese, and mildly hypertensive. The progress notes report that Patient #17 had an infection on his left earlobe at the end of 1998, which was treated with antibiotics and appears not to have been serious. He also had bronchitis in May 1999, but the notes do not establish that this was a serious or recurring problem (and his CD4-cell count was in the normal range at the time). The second-level review of the foregoing five patients persuaded the undersigned that the decisional framework was not unduly restrictive but, rather, operated fairly to separate the justifiable claims from those that were not justified. Peer Review. Because Dr. Shands was still regularly providing medical care to patients in 1998 when the Agency retained him, and because it appears that he continued to see patients within the two-year period before the commencement of the final hearing, it is determined that Dr. Shands sufficiently qualified as a "peer" to authorize his testimony as the Agency's expert on medical necessity. However, because there is no evidence of a patient- specific peer review of the patients whose treatments led to the alleged overpayment of $28,020.38, it is determined that this latter sum was not shown by the evidence to constitute an overpayment. Inventory. Although Cadigan failed to produce documents showing that he had purchased IVIG, it is determined that, in fact, Cadigan did have sufficient quantities of the product available during the audit period to support the Medicaid claims at issue. This finding is based on the fact (which was not genuinely disputed) that Cadigan actually provided the infusions and related services that led to the disputed claims, as documented by the medical records maintained in the ordinary course of Cadigan's business. Obviously, the infusions could not have been accomplished unless Cadigan had IVIG on hand.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency enter a final order requiring Cadigan to repay the Agency the principal amount of $153,901.92. DONE AND ENTERED this 9th day of February, 2004, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of February, 2004.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of Lazaro Home, Inc., for licensure as an Adult Congregate Living Facility be APPROVED, provided the appropriate first aid course, including cardiopulmonary resuscitation, is completed by two of its employees, and its medical records are revised to meet the standards prescribed in Rule 10A-5.18, Florida Administrative Code. Such standards should be met no later than thirty days after the date of this Recommended Order; otherwise the application should be denied. RECOMMENDED this 19th day of November, 1981, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of November, 1981.
The Issue The issue to be resolved in this proceeding is whether Petitioner was terminated from his employment with Respondent because of his race in violation of Chapter 760, Florida Statutes.
Findings Of Fact Petitioner, Chester R. Cooper, is an African-American male. He was employed by Respondent, Gulf Coast Treatment Center, on May 19, 1998, as a youth care worker at its facility in Fort Walton Beach, Florida (assignment center). Petitioner was terminated on November 5, 1998. During his employment, Petitioner worked the "midnight shift" from 10:00 p.m. to 6:00 a.m. His supervisor was Ollie Rainwater. Respondent operated its facility under a contract with the Florida Department of Juvenile Justice (DJJ). The Fort Walton Beach facility performs behavioral, medical, educational, and psychological assessments and completes a 21-day report to DJJ prior to the assignment of a each youth to a residential commitment facility. The program director of the Center was Mikel Currie. In November 1998, four of the five shift supervisors were African-Americans, and approximately 50 percent of the youth care workers at the Center are African-Americans. Pursuant to the requirements of the DJJ, the Center promulgated and briefed all employees on a Use of Force Policy, which provided in relevant part, that mechanical restraints, such as handcuffs or leg cuffs, may be used upon the youths only to prevent injury or property damage. The policy prohibits the shackling of youths together and the practice of hog-tying. Hog-tying is securing a youth's legs and hands together behind the youth's back. The policy also required that any use of mechanical restraints be reported in writing by the staff member involved within two hours of the incident. All youth care workers are provided with some training in this area. The Employee Conduct Policy expressly prohibits the "shielding" of any employee from the consequences of misconduct and imposes a duty upon all employees to report any misconduct. The language of this policy does not limit these reporting obligations to one's immediate supervisor. Such reports may be made to the program director or any member of the administration. Petitioner was aware of the policy to report misconduct, but believed that he was supposed to report the misconduct to his immediate supervisor, who was the person who was actually perpetrating the misconduct involved in this case. On November 4, 1998, Petitioner was assigned to the Boys' Unit of the Assignment Center. His shift began at 10:00 p.m., on November 4, 1998, and ended at 6:30 a.m., on November 5, 1998. Ollie Rainwater (African-American), shift supervisor, and Jimmy Coleman (African-American), youth care worker, were the only other employees assigned to the Boys' Unit on Petitioner's shift. Jesse Mathews (Caucasian) worked on November 3 and 4, 1998, on the second shift, from 2:00 p.m. to 10:00 p.m. On November 3, 1998, Annette Whittlesay, a youth care worker on the female side of the facility observed Ollie Rainwater and Jesse Mathews, handcuff two youths together. However, she never reported this information to anyone in the administration. The Boys' Unit is comprised of two residential sides, each of which is approximately 75 to 80 feet long. The residential sides form a hallway divided by double doors. When Petitioner arrived at work on November 4, 1998, he observed Quentin Williams and Ricky Sheets handcuffed together. The handcuffing occurred when Petitioner was at the other end of the hall. The doors were closed and Petitioner did not see the actual handcuffing. The youths told Petitioner that Mr. Rainwater, along with Jimmy Coleman, handcuffed them. It took a while for Petitioner to obtain this information because the two youths were fighting each other while cuffed. During this time Petitioner sat down. Petitioner then went to find the key to the cuffs to uncuff the boys. Upon the program director's arrival at the Center, around 5:00 a.m., on November 5, 1998, one of the youths, Quentin Williams, reported to him that he had been handcuffed together with another youth, Ricky Sheets, by Ollie Rainwater and Jimmy Coleman. Quentin Williams reported that one of his wrists and one of his ankles had been shackled to the wrist and the ankle of Ricky Sheets, and that they had fought with each other while shackled together. During this struggle, Quentin Williams had been bitten on his finger by Sheets. Quentin Williams also told Mikel Currie that Petitioner had sat in a chair and laughed at them while they struggled. Mikel Currie sent Quentin Williams to the nurse for treatment of his finger and immediately commenced an investigation of the matter. Mikel Currie determined that no report of any use of mechanical restraints had been made by anyone from the night shift. Mikel Currie directed each of the youths who had been shackled or had witnessed the shackling or hog-tying to prepare a written statement in their own words. In order to avoid any collusion, the youths were separated from each other as they prepared their written statements. After the youths completed their written statements, each one was interviewed separately by Mikel Currie and Keith Williams (African-American), the first shift supervisor. Quentin Williams told Mikel Currie and Keith Williams that he had been shackled to Ricky Sheets by Ollie Rainwater and Jimmy Coleman on two consecutive nights. He also told them that "Mr. Cooper was sitting in a chair laughing" while he and Sheets were fighting. The youth did not state that any other employee was involved in the incident. Ricky Sheets' report was consistent with that of Quentin Williams. He identified Ollie Rainwater and Jimmy Coleman as the two staff members who had shackled him to Quentin Williams and did not state that any other employee was involved in the shackling. Youth, Frederick Alls, confirmed that Jimmy Coleman and Ollie Rainwater had shackled Quentin Williams and Ricky Sheets together on two nights and that Ollie Rainwater had hog- tied Alls with a set of leg cuffs earlier that morning. Alls did not state that any other employee was involved in the shackling or hog-tying. Youth, Brandon Mason, told Mikel Currie and Quentin Williams that two youths had been shackled together by Ollie Rainwater and Jimmy Coleman. He also told Mikel Currie and Keith Williams that Petitioner sat in a chair watching while Ollie Rainwater and Jimmy Coleman shackled Quentin Williams and Ricky Sheets together. Mason identified Ollie Rainwater, Jimmy Coleman, and Petitioner as the only employees involved in the shackling incidents. Two other youths, Edward Roberson and John Croshat, were interviewed and identified Ollie Rainwater and Jimmy Coleman as the staff members who shackled the two youths together. During the investigation, none of the six youths who were interviewed ever told Mikel Currie or Keith Williams that Jessie Mathews, a white youth care worker assigned to the evening shift (2:00 p.m. to 10:00 p.m.) had participated in any mechanical restraints or misconduct of any nature. From the youths, Mikel Currie determined that the shackling incidents occurred around 1:00 a.m., several hours after Jessie Mathews had left the Center. Neither Mikel Currie nor Keith Williams had any reason to suspect Jesse Mathews was involved. Mikel Currie and Keith Williams interviewed Ollie Rainwater on the afternoon of November 5, 1998. Ollie Rainwater admitted his involvement in the shackling and hog-tying incidents of November 4 and 5, 1998. He was terminated for violations of the Center's Use of Force and Employee Conduct policies. Ollie Rainwater never claimed that Jessie Mathews, or any other white employee, had been involved in misconduct. Mikel Currie and Keith Williams also interviewed Jimmy Coleman that same afternoon. Jimmy Coleman admitted that he was involved in the incidents on November 4 and 5, 1998. His role had been to bring the restraints to Ollie Rainwater when he ordered him to do so. Jimmy Coleman was terminated from employment. At hearing Jimmy Coleman testified he told Mikel Currie and Keith Williams that Jesse Mathews had participated in a similar incident the day before. However, the assertion is not credible because Mikel Currie and Keith Williams both testified unequivocally that Jimmy Coleman never mentioned that Jesse Mathews, or any other white employee, had been involved. This testimony is bolstered by the interviews given by the various youths. Mikel Currie attempted to reach Petitioner several times by telephone on November 5, 1998, but was unsuccessful. Keith Williams reached Petitioner by telephone around 1:00 p.m. on that date, as detailed in his contemporaneous memorandum of this conversation. Keith Williams asked Petitioner if he was aware of the shackling incidents and Petitioner denied any knowledge. Petitioner repeated several times that he knew nothing about the incidents. He made that statement because he did not directly see the handcuffing of the youths. He did not reveal his knowledge regarding events after the act of handcuffing. Mikel Currie and Keith Williams did not believe Petitioner's claims that he knew nothing about the incident because the Boys' Unit is a relatively small area (150 feet in length), Ollie Rainwater and Jimmy Coleman admitted their involvement and several of the youths had stated that Petitioner had observed the shackling incident. Accordingly, Mikel Currie and Keith Williams decided to terminate Petitioner for knowingly attempting to mislead Keith Williams during the course of the investigation, failure to report the improper restraint of the youths, and humiliating the youths by laughing at them while they were shackled. Petitioner was terminated on November 7, 1998. Contrary to his testimony, Petitioner never advised Mikel Currie, Keith Williams, or any other member of management that Jessie Mathews had any alleged involvement in the improper use of restraints. In his "Letter of Rebuttal" submitted to the Center four and one-half months after his termination, Petitioner never mentioned any involvement on the part of Jessie Mathews. He did, however, admit in this letter that he did observe the two youths shackled together while they fought. Since Respondent did not know of Jessie Mathews' similar behavior, Jessie Mathews was not terminated or otherwise disqualified. Later, however, Jessie Mathews, the white employee involved in the November 3, 1998, handcuffing was involved in an argument with another shift supervisor. Mr. Mathews used profanity and acted unprofessionally. He was suspended and demoted as a result of his misconduct. During the two months following the termination of Ollie Rainwater, Jeremy Coleman, and Petitioner, a majority of the individuals hired as youth care workers at the Center were minority group members (7 African-Americans and 1 Hispanic out of 15 hirees). Robert Cannon, a white youth care worker, was terminated by Mikel Currie on October 16, 1998, for suspicion of being under the influence of alcohol and refusing to take a drug/alcohol test. Neither Mikel Currie nor Keith Williams had any knowledge of any prior misconduct of this nature on the part of Robert Cannon. Tammy Curry, a white female youth care worker, was subject to an assault by a female youth on December 13, 1998. Mikel Currie placed Tammy Curry on leave while he investigated the incident. Based upon his investigation, Mikel Currie reinstated Tammy Curry because he determined that she had been punched in the face and pulled down the hallway by her hair by a youth in an unprovoked attack. Mikel Currie concluded that she had acted properly in self-defense. The youth was charged with battery and Tammy Curry was reinstated. Additionally, the Inspector General at the Department of Children and Family Services conducted its own investigation and cleared Tammy Curry of any wrongdoing. The Robert Canon and Tammy Curry incidents are not similar to Petitioner's circumstances. Respondent, including the unit presently known as the Okaloosa Youth Academy, actively pursues a policy of affirmative action designed to recruit minorities. As of the spring of 2000, the Center employed 138 individuals, the majority of whom (72 employees ) were African-American. After Petitioner's termination from the Center, Petitioner sought employment to replace the income he lost from this employment. On February 21, 2000, Petitioner began working for Correctional Services Corporation as an on-call youth worker. His earnings through the date of the hearing are $8,013.56. He earns $8.30 per hour. He averages approximately 24 hours per week.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED: That a Final Order be entered by the Florida Commission on Human Relations denying the Petition for Relief in its entirety. DONE AND ENTERED this 28th day of February, 2001, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 28th day of February, 2001. COPIES FURNISHED: R. John Westberry, Esquire Holt & Westberry, P.L. 1108-A North 12th Avenue Pensacola, Florida 32501-3308 Kevin L. O'Dea, Esquire McGlinchey Stafford 643 Magazine Street New Orleans, Louisiana 70130 Azizi Coleman, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
