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
Findings Of Fact Petitioner, Harold Mayo, was employed by Respondent in March, 1987, through December 1, 1987. He has difficulty in controlling his emotions. He experiences rapid changes in mood. He has been diagnosed as suffering from a variety of mental disorders all of which have depression and rapid mood changes as part of their symptomatology. He often feels threatened by stressful situations, and sometimes responds to such situations by losing control of himself and crying as well as sometimes withdrawing from human contact. The Respondent, Advocacy Center for Persons With Disabilities, Inc., ("Center") is a private, non-profit organization which receives federal funds in order to provide advocacy for persons with disabilities. The Center has existed in its present, private status since October 1, 1988. Prior to October 1, 1988, the Center was a public agency within the Governor's office known as the Governor's Commission on Advocacy for Persons With Disabilities ("Commission"). The Commission was established in 1977, by executive order of the Governor. Since its creation, the Executive Director of the Commission (now the Center) has been Mr. Jon Rossman. Mr. Rossman is an attorney. Prior to becoming Executive Director of the Commission, Mr. Rossman worked as a staff attorney for the Association of Retarded Persons. The Center provides legal assistance to handicapped individuals, to ensure that they receive appropriate treatment and services by agencies designed to serve them. Specifically, the Center provides representation and advocacy under three programs: one program is designed to represent individuals with certain developmental disabilities defined by Congress. A second program is designed to represent individuals who are recipients of, or applicants for, vocational rehabilitation services from the state. A third program, the Mental Illness Protection and Advocacy ("MIP&A") program, is constituted to provide representation for mentally ill persons. The Center employs between 20 and 30 individuals. Each of the three programs administered by the Center is headed by a program director. The Center employs approximately six or seven attorneys, and several non-lawyer client "advocates." These jobs are supported by secretarial and clerical staff. Mr. Mayo had previously identified himself to Mr. Rossman as a former mental patient at a mental hospital, and therefore, as a "consumer" of mental health services. Mr. Mayo had indicated that he was interested in employment with the Center and in March 1987, Mr. Rossman offered employment in an OPS position to Mr. Mayo at the Commission. Prior to his employment Mr. Mayo had sought the Commission's assistance in dealing with the Division of Vocational Rehabilitation of HRS. At the time Mr. Rossman offered employment to Mr. Mayo, Mr. Rossman was aware that the Division of Vocational Rehabilitation had determined that Mr. Mayo was "not employable." Nevertheless, aware of this determination and of Mr. Mayo's status as a mental health consumer, Mr. Rossman offered Mr. Mayo employment and created an OPS position for him at the Commission. Mr. Mayo began his OPS employment with the Center on March 30, 1987. Mr. Rossman employed Mr. Mayo to assist the Center on two specific projects: a. to review applications which had been received by the Center for membership on an advisory committee; and b. to assist in organizing a conference to be sponsored by the Florida Mental Health Advocates Network. He was not hired to be a client-advocate and his OPS position did not include those duties. Mr. Mayo was assigned a space in a library/conference room in which to work. Mr. Mayo was only required to work as long as he felt able and comfortable in so doing; and was allowed to leave the office any time he felt threatened, to go home if he wanted, to talk to other employees and Mr. Rossman, to go outside and walk around in the parking lot, and to take breaks as he felt necessary when he experienced stress. He would sometimes lie on the floor and cry prior to getting back to work. There were times when Mr. Mayo took days off after experiencing a particularly emotional workday. Mr. Rossman spent entire days and afternoons talking things out with Mr. Mayo, walking around the office complex, and discussing his employment with him. These sessions occurred both in Mr. Rossman's office and in Mr. Mayo's. In short Mr. Rossman and other Center employees made a genuine, wholehearted effort to work with Mr. Mayo and went out of their way to accommodate him. There was absolutely no intent to unlawfully discriminate against Respondent due to his mental illness. In fact, the opposite was shown by the evidence. Mr. Rossman had a genuine desire that Respondent succeed as an employee. On two separate occasions, Mr. Rossman called Mr. Mayo's wife, concerned due to Mr. Mayo's depression and behavior, and expressed his concern and worry about Mr. Mayo's welfare to Mr. Mayo's wife. The contact on Mr. Rossman's part was a simple gesture of human concern for not only an employee but for a person who Mr. Rossman was very interested in his well-being. Instead Mr. Mayo took great umbrage at Mr. Rossman contacting his wife. He assumed that such contact was an affront to him and was treating him as if he could not take care of himself. On more than one occasion, Mr. Mayo tendered his resignation to Mr. Rossman. Mr. Rossman refused to accept the resignations. On several occasions, Mr. Rossman asked Mr. Mayo if Mr. Mayo would mind Mr. Rossman's speaking to Mr. Mayo's psychiatrist, in an effort to get his psychiatrist's opinions and suggestions on what Mr. Rossman could do to make Mr. Mayo's employment experience successful. On these occasions, Mr. Mayo responded that he was insulted by the request, and did not wish Mr. Rossman to contact his psychiatrist. Again, Mr. Mayo's over- sensitivity to attempts to gain insight into his handicap interfered with his ability to perceive the true intent of his employer in making such a request. Mr. Rossman did not contact Respondent' s psychiatrist. 1/ During his employment, Mr. Mayo frequently overstepped his bounds and overstated his position. This included contacting and writing letters to various persons and agencies, writing letters to the editor of publications, contacting "Nightline," and commenting on news articles, either on Commission letterhead or while identifying himself as an employee of the Commission. Mr. Mayo spent Commission time engaged in advocacy of his personal views which was not within the duties of the OPS position for which he had been hired. In April 1987, Mr. Mayo advised Mr. Rossman of his desire to be the Director of the MIP&A program, and further advised Mr. Rossman of his view that it was very important that the Director's position "should be occupied by a consumer, client or survivor." Mr. Rossman began to consider another individual, Kathleen Regan, for the position of Director of the MIP&A program.2/ Mr. Rossman sought Mr. Mayo's views on the matter. Mr. Mayo expressed his opinion that he thought Ms. Regan was incompetent for the position since she was a mental health professional and a middle management employee at HRS, rather than a consumer. Mr. Mayo told Mr. Rossman of a series of concerns he had should there be "such an incompetent source" running the program. He predicted, "it would all be downhill from now on." Ms. Regan was hired as the MIP&A Program Director effective August 1, 1987. As MIP&A Program Director, Ms. Regan would be Mr. Mayo's direct supervisor. At the time, Ms. Regan began, Mr. Rossman communicated to Ms. Regan that he strongly desired to see Mr. Mayo succeed in his employment at the Commission. He asked for her assurance that she would cooperate in that effort. She gave such an assurance. As the first director of the MIP&A program, Ms. Regan was responsible for developing program priorities, and developing a structure for the MIP&A program. Ms. Regan found that she had a number of people who had input into the development of such priorities and structure, including the Commission's Board of Directors, the Executive Director, the 24 members of the advisory committee, and Mr. Mayo. Ms. Regan attempted to integrate all that input into decisions on the direction and structure of the program. Ms. Regan found it difficult to integrate Mr. Mayo's own strong personal convictions about priorities and structure, but attempted to do so. Mr. Mayo and Ms. Regan had an extremely difficult time in their working relationship. As an example of the problems between Mr. Mayo and Ms. Regan, after it was agreed that they would meet for one-half hour, twice each week, to discuss Mr. Mayo's work, Mr. Mayo submitted a nine-item agenda for the first meeting. Ms. Regan, feeling that one-half hour was insufficient time to discuss so many items, asked Mr. Mayo if he would select two of the items for discussion. Mr. Mayo refused. The following day, Mr. Mayo again attempted to address the entire agenda, refused to select two items for discussion, and told Ms. Regan that he would not "play by her rules." These and subsequent meetings deteriorated,3/ and communications between Mr. Mayo and Ms. Regan broke down. Mr. Mayo told Ms. Regan that he did not consider her to be an advocate, but a "badvocate." Mr. Mayo would undertake work activities not assigned to him without first discussing them with Ms. Regan. On a number of occasions, Mr. Mayo would engage in some such activity, embarrassing Ms. Regan when she would get a call or communication from persons outside the Commission inquiring about Mr. Mayo's conduct, and she would be entirely unaware of his activities. Mr. Mayo and Ms. Regan experienced difficulties when Mr. Mayo sent out personal correspondence advocating personal views on Advocacy Center letterhead. This included correspondence sent by Mr. Mayo to Mr. Allen Tedder, Executive Director of the Mental Health Association of Florida. At least one such letter was sent on Commission letterhead even though Ms. Regan had specifically instructed Mr. Mayo to have the letter redrafted on non-Commission letterhead. Mr. Mayo and Ms. Regan had difficulties when Mr. Mayo refused to acknowledge that Ms. Regan had any right to approve or disapprove his travel requests. Part of Ms. Regan's supervisory duties was to review such travel requests. On another occasion, Mr. Mayo refused to submit his time sheets to Ms. Regan for approval. Again, part of Ms. Regan's supervisory duties was to review and approve employee time sheets. Likewise, when Ms. Regan told Mr. Mayo that he needed to route certain documents through her for signature, Mr. Mayo made an obscene gesture to Ms. Regan three times in the course of the morning. Ms. Regan told Mr. Mayo that his conduct constituted insubordination. His response was, "Fuck you." A frequent issue between Mr. Mayo and Ms. Regan was the issue of "partnership." Mr. Mayo asserted that he wanted to be viewed as an equal. Whenever Ms. Regan made a decision he didn't agree with, Mr. Mayo complained that she was violating her commitment to work with him, and was excluding him from the decision-making process. Ms. Regan received complaints from members of the advisory committee about Mr. Mayo. She also received verbal complaints from Martha Larson, Administrator of the hospital program at HRS. Ms. Regan heard from at least one outsider that Mr. Mayo was advocating against her as the program director. Ms. Regan reported these problems to Mr. Rossman. They met frequently in an effort to determine how best to resolve these difficulties. During his employment, people with whom Mr. Mayo had contact, outside the Center, complained directly to Mr. Rossman about Mr. Mayo's behavior and conduct. Many of these complaints were discounted by Mr. Rossman, who frequently defended Mr. Mayo against accusations being made about him. Inside the office, Mr. Rossman also received complaints about Mr. Mayo. There were complaints from other employees about difficulties working with Mr. Mayo, about shouting matches, about Mr. Mayo going through mail, about telephone calls he was making, and about representations made by Mr. Mayo outside of the office, regarding office policy. Mr. Mayo went directly to Mr. Rossman with his own complaints about Ms. Regan. At first, Mr. Rossman told Mr. Mayo that he did not want to get involved, and that Mr. Mayo and Ms. Regan should attempt to work the problems out themselves. However, the problems between Ms. Regan and Mr. Mayo worsened. Mr. Mayo repeatedly asked Mr. Rossman to take him out from under Ms. Regan's supervision. On September 9, Mr. Mayo submitted a written resignation in which he stated that he didn't feel his presence would serve any purpose "without direct involvement in policy matters." Mr. Rossman refused to accept Mr. Mayo's resignation. Instead, however, he agreed to Mr. Mayo's request that he (Mayo) not work under Ms. Regan's supervision. Once again, Mr. Mayo reported directly to Mr. Rossman. By September 9, the Governor had ordered that the Commission would become a private not-for-profit corporation effective October 1. Mr. Rossman was extremely busy making preparations for this transition and did not have the time to give Mr. Mayo as much individual attention as he had previously. The Commission's offices at that point were on two floors, Ms. Regan's office was on the first floor, and Mr. Rossman's office was on the second floor. This period was one of transition, and eventually, all the Center's offices were consolidated on the second floor. During the transition period, the office was very crowded. Mr. Rossman shared a corner of his office with his administrative assistant. Two lawyers shared the conference table at which Mr. Mayo had previously worked. Mr. Mayo was moved to a work location in an alcove outside Mr. Rossman's office on the second floor. When Mr. Mayo expressed concern about his ability to make the move, everyone in the office encouraged him, telling him that he was capable of making the move. Mr. Mayo made an attempt to change office locations. The new location did not work very well because Mr. Mayo felt exposed to other human beings. After September 9, Mr. Mayo continued to report to work each day, and was paid for a full eight hours. During this time Mr. Mayo invented work to do since Mr. Rossman did not have enough work to keep him busy. Following Mr. Mayo's being removed from Ms. Regan's supervision, Mr. Mayo continued to respond to matters that would be properly directed to Ms. Regan. He made calls about the MIP&A program around the state, criticizing the program and Ms. Regan, and again asserting his beliefs that the Center made a bad decision in employing her. As one example, Mr. Mayo, without authorization, contacted people to attend a consumer conference and invited a number of people to come on scholarship. Scholarship means that the Advocacy Center would pay that individual's expenses. No one at the Center (other than Mr. Mayo) had authorized the reimbursement for their expenses. A number of such people arrived without the registrar having any advance notice that they would attend. On another occasion, Mr. Mayo wanted certain individuals to be invited to attend a meeting between some of the staff and some of the members of the Board. Mr. Rossman advised Mr. Mayo that those individuals did not need to be involved. Nevertheless, Mr. Mayo insisted that the meeting was covered by the Sunshine Act, and that 11 members of the public were entitled to attend the meeting. On that basis, without asking permission, Mr. Mayo telephoned members of the advisory committee and invited them to this meeting. Since Mr. Mayo had been unable to work directly for the MIP&A program director, Mr. Rossman asked Mr. Mayo to prepare a job description for his position.4/ Mr. Rossman asked Mr. Mayo to advise him on how Mr. Mayo felt that he could be of use to the Advocacy Center. Mr. Mayo responded by typing out Respondent's Exhibit No. 6, asserting that he should be able "to advocate as a Consumer Consultant in whatever direction I choose (emphasis added)," and "as a Consumer Consultant to be kept up to date on all the workings of the MIP&A and to be involved as a consultant in that work." Following September 9, Mr. Rossman assigned Mr. Mayo the task of rewriting a report or contract which had been prepared by Ms. Regan. Mr. Mayo refused the assignment because of his view that it was "grossly unethical" to rework another person's work product. Although he refused to work on it, Mr. Mayo objected that Mr. Rossman "had refused to allow consumers any part in writing the contract and I could not speak for all consumers . . ." Shortly before October 8, 1987, Mr. Rossman was contacted by Allen Tedder, Executive Director of the Florida Mental Health Association, with a complaint about Mr. Mayo. Mr. Rossman replied to Mr. Tedder by letter dated October 8, 1987 stating that, as a mental health consumer, Mr. Mayo "apparently has less control over his personal feelings than might otherwise be expected," and further, that Mr. Mayo had undoubtedly "let his strong beliefs get ahead of him at times, overstating his position." Mr. Mayo was offended by Mr. Rossman's October 8th letter because of his view that while he had the right to identify himself to others as a person with difficulty controlling his emotions, Mr. Rossman, as a professional, had no such right. Mr. Mayo felt so "demeaned" by the letter that he cried uncontrollably, left the office, and spent the rest of the afternoon crying on the floor at his doctor's office. On October 21, Mr. Mayo left a copy of a memorandum from him to Dr. Schuchts, his psychiatrist, on the desks of both Mr. Rossman and Ms. Regan. In this memorandum, Mr. Mayo complained that he, as a consumer of mental health services, was being excluded from decision-making at the Center, and criticized advocates "who maintain [they] can speak for us." Outlining his opinions in his October 21 memorandum to Dr. Schuchts, Mr. Mayo listed as one of them: "To continue to disobey Jon and act upon my conscience. To attend meetings for which he refuses to "empower consumers and to openly submit reports from those meetings to him." Shortly before October 28, Mr. Gene Padgett, a close friend of Mr. Mayo's and a personal advisor to him, met Mr. Rossman for lunch. At lunch, they discussed Mr. Mayo's status, and Mr. Padgett encouraged Mr. Rossman to give Mr. Mayo a very definite set of guidelines within which to operate. On October 29, Mr. Rossman issued to Mr. Mayo a memorandum dated the previous day. The memorandum of October 28 began with a statement of the problems which had occurred and which Mr. Rossman felt required the setting forth of specific guidelines and limitations for Mr. Mayo's subsequent work activities. The memorandum then set forth specific assignments and guidelines for continued employment. The conditions were reasonable and nondiscriminatory. Mr. Rossman advised Mr. Mayo that he was expected to agree to the conditions if he was going to continue working for the Advocacy Center. Mr. Rossman's purpose in giving Mr. Mayo the memorandum of October 28 was an attempt to salvage Mr. Mayo's employment. By that time, Mr. Rossman had become convinced that excess independence and insufficient direction might be contributing to the problems with Mr. Mayo's employment. He believed that setting forth strict assignments and guidelines, as suggested by Mr. Padgett, might result in a productive work experience for Mr. Mayo. On October 29, Mr. Mayo was given the memorandum and told he must agree to its terms. Mr. Rossman had arranged for two other employees to witness the events of the meeting. Mr. Mayo asked if he could have a copy of the memorandum and if he could have until November 3 to take the document to his attorney. Mr. Rossman agreed to the request. Mr. Mayo left the office and did not return to work. Nothing in the meeting demonstrates any discriminatory purpose or intent on the part of the Center or Mr. Rossman. Mr. Mayo's claim that the presence of the two other employees was intimidating and therefore discriminatory is simply not born out by later events and Mr. Mayo's own actions. On November 10, Mr. Rossman received a letter from Mr. Richard Powers, a Tallahassee attorney, on behalf of Mr. Mayo. Mr. Power's letter indicated no willingness on Mr. Mayo's part to accept the conditions set out in the October 28 memorandum. The letter suggested a meeting to discuss the subject. On November 18, Mr. Rossman, Mr. Mayo, Mr. Parker Thompson (Board Member), and Mr. Powers met at Mr. Power's office. Mr. Mayo and his attorney insisted that Mr. Mayo be allowed to return to work without conditions. Mr. Mayo's return without conditions addressing the problems in the performance of his job was not acceptable to the center. On November 25, 1987, Mr. Rossman wrote to Mr. Powers, confirming Mr. Rossman's understanding that Mr. Mayo was insisting on a "return to work without any conditions," and reiterating Mr. Rossman's own position that Mr. Mayo could return to work "under conditions designed to address problems in his performance." Mr. Rossman agreed in the letter to hold Mr. Mayo's position open until December 1, 1987. Mr. Rossman did not hear further from Mr. Mayo or his attorney prior to, or following December 1, 1987. The only conclusion that can be drawn from Mr. Mayo's action or inaction is that he quit his employment with the Center when he determined that he was not going to be allowed to do as he pleased in his employment. In January 1988, following Mr. Mayo's departure, the Advocacy Center hired an individual, to fill the position of client advocate for the MIP&A program. The individual hired has a history of mental illness -- specifically, bipolar depression. Other than Mr. Mayo, the Commission/Center has employed a number of individuals with a variety of handicaps. The former Program Director for the Developmentally Disabled Program was a person with cerebral palsy who chose not to continue in employment with the Commission when it converted to private status. The Center's CAP Program Director is a wheelchair user, due to childhood polio. She has her desk up on blocks, high enough to accommodate her wheelchair. One of the Center's attorneys has epilepsy. A CAP client advocate for the Center is blind. Another Center employee has a hearing impairment. During his employment, Mr. Mayo was not able to accept supervision and was unable to work in the structured environment at the Center. There was no substantial evidence presented which establishes a nexus between Mr. Mayo's shortcomings and his mental illness. Without such evidence it is difficult to say what role Mr. Mayo's handicap played in his demise. A handicap does not entitle the individual to accommodation in areas unrelated to that handicap. Therefore, the evidence did not demonstrate any discrimination by the Center due to that handicap.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Petitioner's Petition be dismissed. DONE and ENTERED this 6th day of December, 1989, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 6th day of December, 1989.
Conclusions THE PARTIES resolved all disputed issues and executed a Settlement Agreement. The parties are directed to comply with the terms of the attached settlement agreement. Based on the foregoing, this file is CLOSED. DONE and ORDERED on this the @® day of _Dewort , 2011, in Tallahassee, Florida. bh. Mle IZABETH DUDEK, SECRETARY Agency for Health Care Administration A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. Copies furnished to: Daniel M. Lake, Esquire Agency for Health Care Administration (nteroffice Mail) Olga Hasbun VIP Associates & Co., Inc. Post Office Box 141234 Coral Gables, Florida 33114 (U.S. Mail) Stuart M. Lerner Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 Mike Blackburn, Chief, Medicaid Program Integrity Finance and Accounting HQA and DOH [via email] CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to the above named addressees by U.S. Mail, Laserfiche or electronic mail on this the fis of mb ,2011. Richard Shoop, Esquiré Agency Clerk State of Florida Agency for Health Care Administration 2727 Mahan Drive, MS #3 Tallahassee, Florida 32308-5403 (850) 412-3630/FAX (850) 921-0158
