The Issue Whether the Flagler County School Board discriminated against Petitioner by failing to hire Petitioner based on his disability.
Findings Of Fact Respondent is the local government agency responsible for oversight of the public schools of Flagler County, Florida. Petitioner applied for two positions with the School Board. In December 2009, Petitioner applied for a job opening as a bus aide for handicapped students (Transportation Handicapped Aide position). On January 29, 2010, he applied for a lawn maintenance position at Flagler Palm Coast High School (Maintenance/Turf Care Worker position). On February 1, 2010, Petitioner received a letter from the School Board thanking him for his interest in the Transportation Handicapped Aide position, but informing him that the School Board had selected another applicant. On or about May 31, 2010, Petitioner received another rejection letter from the School Board, informing him that he had not been hired for the Maintenance/Turf Care position. Petitioner alleges that Respondent did not hire him for either position because he is “qualified deaf.” Prior to actually applying for the two positions, as part of the application process, Petitioner completed an on-line employment application with the School Board. Petitioner listed eight previous positions on his on-line application, including: dishwasher, assembler, part-time stacker, dock worker, warehouse/driver, part-time delivery driver, warehouse associate, and warehouse forklift operator. The previous positions listed on Petitioner?s on-line application did not involve working with children or lawn care. At the final hearing, Petitioner testified that he had been around deaf and blind students while attending the Florida School for Deaf and Blind. He also testified that he thought he could learn the lawn care maintenance position while on the job. Petitioner conceded, however, that his prior employment positions and experience did not involve working with children or lawn care maintenance. Qualifications the School Board required for the Transportation Handicapped Aide position included prior experience or training in the care of children, as well as knowledge of and ability to use crisis intervention and prevention techniques, CPR, and first aid. The Maintenance/Turf Care Worker position was not a beginning position where qualifications could be met by on-the- job training. Rather, the position required a state-certified pest control operator's license for lawn and ornamental plants or the equivalent, and a working knowledge of the rules and regulations on safe handling and application of pesticides, herbicides, and fertilizers. The position also required knowledge of athletic field dimensions and striping, and the ability to maintain a commercial irrigation system. Review of Petitioner's on-line application, in light of the qualifications for the two positions sought, reveals that Petitioner was not qualified for either position. In contrast, the successful applicants who were hired for the two positions possessed the required qualifications and experience. Ms. Parrella testified that, as secretary to the School Board's Director of Human Relations, it was her responsibility to monitor the applications for employment submitted for the two positions for which Petitioner applied. According to Ms. Parrella, Petitioner was not hired because he did not possess the required qualifications for the positions. Ms. Parrella further testified that the School Board would not discriminate against a person who was deaf if he had the qualifications for the position. She further explained that Petitioner's handicap or disability played no role in the decision not to hire him for the two positions. Ms. Parrella's testimony is credited. Petitioner testified that, at the time he filed the Complaint, he suspected that he had not been hired by the School Board because of his disability because he could not think of any other reason he was not hired. He admitted, however, that he had no personal knowledge as to the reasons why he was not hired. Petitioner also admitted during the final hearing that he did not list or possess all of the certifications or qualifications required for either of the two positions. In sum, Petitioner did not show that the School Board discriminated against him by failing to hire him because of his disability.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Complaint and Petition for Relief. DONE AND ENTERED this 17th day of May, 2011, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of May, 2011.
The Issue The issue in this case is whether Respondent fired Petitioner due to a physical handicap.
Findings Of Fact Respondent employed Petitioner in November, 1991. She was hired to work in bookkeeping. Her responsibilities included paying the accounts payable of Respondent, as well as ensuring that the computer data was backed up to ensure against loss in case of a computer failure. Shortly after being hired, Petitioner was given a questionnaire to complete for the purpose of obtaining health insurance. On November 27, 1991, Petitioner completed the questionnaire and delivered it to her supervisor. In order to induce the health insurer to provide her health insurance, Petitioner repeatedly lied on the application. She falsely indicated that she did not suffer from high blood pressure although she did. She falsely indicated that she was not on any medication although she was on medication for high blood pressure. She falsely indicated that she had never had any operations when, four years earlier, she had had polyps removed from her colon and had had an abdominal aortic aneurysm repaired surgically. When first employed, Petitioner was trained to perform tasks assigned to her. She received training concerning the payment of accounts payable, filing of paid and unpaid invoices, and daily backup of the computer data. Despite receiving adequate training, Petitioner inexplicably failed to perform these assignments. Even though adequate funds were available, Petitioner failed to pay such routine payables as the lender on a truck loan and a good, longstanding supplier. She misfiled invoices sent to Respondent. Sometimes, she placed them in a desk drawer or a computer manual. She ignored her orders to backup computer data daily and instead did it at most on a weekly basis, and even then she did it incorrectly. By August 1992, Petitioner's supervisor was beginning to realize that Petitioner was the source of the problems in accounts payable. On August 18, Petitioner's supervisor confronted her with the problems. At about this time, Respondent's computer went down, and Respondent learned that the backups had not been done. In late August, Petitioner suffered a serious heart attack and had to be hospitalized for a week. On Friday, September 4, Petitioner stopped by the office on the way home from the hospital. Her supervisor implied that, when the time was right, they needed to talk about Petitioner's work performance. Petitioner asked if she was being fired and, after getting no assurances, verbally abused her supervisor and threatened to sue Respondent. After Petitioner left the office, the supervisor decided to fire her. When Petitioner returned to the office for her personal belongings four days later, she confronted Respondent's president in the office lobby, shouting "fuck you" and calling him an "asshole." Respondent fired Petitioner due to incompetence and insubordination. Petitioner's termination had nothing to do with the physical ailments associated with her hospitalization in late August and early September 1992.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. ENTERED on March 16, 1994, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings on March 16, 1994. COPIES FURNISHED: Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149 Dana Baird, General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149 William D. Keith Monaco, Cardillo & Keith, P.A. 3550 E. Tamiami Tr. Naples, FL 33962-4999 Sandra I. Meyer, pro se 58 Grouse Rd. Naples, FL 33961
The Issue At issue is whether respondent’s acceptance of a claim for compensation under the Florida Birth-Related Neurological Injury Compensation Plan should be approved and, if so, the actual expenses, if any, for medically necessary and reasonable medical and hospital, habilitative and training, residential, and custodial care and service, for medically necessary drugs, special equipment, and facilities and for related travel currently required for the infant.
Conclusions For Petitioner: Bruce gs. Schwartz, Esquire 2750 Northeast 187th Street North Miami Beach, Florida 33180 For Respondent: David Ww. Black, Esquire Atkinson, Diner, Stone, Black & Mankuta, P.A. Post Office Drawer 2088 1946 Tyler Street Hollywood, Florida 33022-2088
The Issue Whether Petitioner, A Place Called Home (“APCH”), committed three Class II deficiencies and an uncorrected Class III deficiency at the time of the survey conducted on January 20 through 27, 2015, so as to justify Respondent, Agency for Health Care Administration (“AHCA”), denying the licensure renewal application of APCH to continue to operate an eight-bed assisted living facility (“ALF”) located in Miami, Florida.
Findings Of Fact The Parties Since 2013, APCH has been licensed by AHCA to operate an eight-bed ALF located in a duplex at 80-82 Northeast 68th Terrace, Miami, Florida. APCH is licensed to provide limiting nursing and mental health services. Tory Mays has been the Administrator of APCH since its inception in 2013. His wife, Linda Mays, is a Florida licensed advanced registered nurse practitioner, and the contracting nursing care consultant for APCH. AHCA is the state agency responsible for licensing and monitoring assisted living facilities in this state. The October 21, 2014, Survey On October 21, 2014, AHCA conducted a standard biennial survey at APCH. The October 21, 2014, survey was conducted by Judith Calixte-Joasil, who has conducted thousands of surveys during the past nine years she has been employed by AHCA. Ms. Calixte-Joasil, who is employed by AHCA as a health facility evaluator no. 2, has no nursing background, and she is not a physician. During this survey, Ms. Calixte-Joasil found and cited APCH with seven Class III deficiencies. Ms. Calixte-Joasil issued seven separate “tags” to explain the deficiencies. The following is a summary of the seven Class III deficiencies found by Ms. Calixte-Joasil during the October 21, 2014, survey: Tag A026–-Resident Care-–Social & Leisure Activities: Failure to provide scheduled activities posted in the common area and failure to encourage the residents to participate in social, recreational, educational, and other activities within the facility and community. Tag A078–-Staffing Standards: Failure to ensure that a staff member had documentation verifying proof of an annual tuberculosis test result. Tag A079–-Staffing Standards: A staff schedule showed an individual listed on the work schedule for the month of October 2014, but that individual no longer worked at the facility. Tag A081–-Staff In-Service Training: Failure to have proper training hours that are not over the time limits in one day of training (two out of four sampled staff). Tag A152–-Physical Plant–-Safe Living Environment/Other: Broken and rotten wood around an air conditioner unit in an outside window area of one of the rooms. Also, peeling paint in front of the air conditioner was observed in this room. Peeling paint was also observed on the ceiling in both common areas. Finally, in another room, there were missing dresser knobs and a broken door with peeling paint. Tag A160–-Records: Failure to have resident elopement response policies and procedures. Tag AL243–-Training: Failure to have documentation ensuring that a staff member completed the minimum six hours of continuing education. The Incident Involving Resident M.R. M.R. is a current resident at APCH. M.R. became a resident of APCH on December 29, 2014, after transferring from another ALF called Ashley Gardens. Upon transferring to APCH, Ms. Mays examined M.R. and completed AHCA’s Form 1823, titled Resident Health Assessment for Assisted Living Facilities.1/ At the time of her transfer to APCH on December 29, 2014, M.R. was 80 years old, 4’9” inches tall, and weighed 107 pounds. Her medical history and diagnoses were positive for hypertension, Alzheimer’s disease, and psychosis. At that time, M.R. had an “unsteady gait.” She needed “hands on” assistance for bathing and assistance choosing clothing, but she could independently ambulate, eat, care for herself, and use the toilet. Her cognitive or behavioral status was “impaired mental status.” No nursing, treatment, psychiatric or therapy services were required. No special precautions were necessary, and she was not an elopement risk. From December 29, 2014, until January 14, 2015, M.R. resided at APCH without incident. However, on January 14, 2015, at 4:15 p.m., M.R. fell at the entrance of APCH and suffered injury. Mr. Mays learned of M.R.’s fall shortly after it occurred, when he received a telephone call from Glasna Sterling, a caregiver at APCH. Mr. Mays then called his wife to let her know of the fall. Mr. Mays also called Ben Johnson, M.R.’s guardian, to let him know of the fall. In the meantime, a caregiver at the facility applied some ice to M.R.’s face shortly after the fall. Ms. Mays arrived at APCH on January 14, 2015, and conducted a thorough “face-to- face,” “head-to-toe” examination and nursing assessment of M.R. at 7:30 p.m. M.R.’s chief complaint at that time was that her forehead hurt. Upon examination, Ms. Mays observed a two-inch circumference closed hematoma above M.R.’s right eye, which was tender to the touch.2/ Ms. Mays’ examination and nursing assessment of M.R. on January 14, 2015, included checking M.R.’s mentation from her baseline, which was forgetfulness. Ms. Mays examined M.R.’s cognitive abilities and was able to determine her level of orientation and mental status. Ms. Mays observed that M.R.’s eyes were open; she could speak, move, and respond appropriately to voice commands. Ms. Mays examined M.R.’s pupils to see if they were reactive to light and accommodating. Ms. Mays checked the movement of M.R.’s limbs. She checked her lung and bowel sounds. Ms. Mays performed a Glasgow Scale test, which is a test designed to determine a patient’s neurological status and any type of neurological change. Ms. Mays found no deficits on the Glasgow Scale. Following her January 14, 2015, examination of M.R., Ms. Mays’ assessment was hematoma secondary to head trauma. M.R. also had a bruised knee. Ms. Mays determined that M.R.’s injuries resulting from the fall required first-aid type treatment, only, which could be provided by a person who is trained to perform first-aid. At that time, Ms. Mays’ recommended plan of treatment called for ice to be applied to M.R.’s forehead for 15 minutes every two hours for eight hours; the checking of vital signs and alertness for the next eight hours; and required the caregiver, Mr. Sterling, to call M.R.’s primary doctor (Dr. Moses Alade) if M.R. became confused, dizzy, or there was a change in her level of consciousness. No ambulance or physician was called regarding M.R. on January 14, 2015. Ms. Mays documented her findings and treatment plan in “SOAP” notes dated 7:30 p.m., on January 14, 2015. SOAP notes are a problem-solving focused style of note writing, and provide guidance as to how a nurse might document her assessment of a patient for an issue that is being addressed. The term SOAP is an acronym for the following: S=subject, O=objective, A=assessment, and P=plan. The SOAP notes were maintained in M.R.’s resident file to document her health condition. Ms. Mays and Mr. Sterling were trained and qualified to perform the duties set forth in the “SOAP” notes. Ms. Mays and Mr. Sterling were trained and qualified to provide first-aid to residents. Notably, Mr. Sterling was trained and qualified on how to observe and report any changes in M.R.’s condition to Dr. Alade. Ms. Mays explained to Mr. Sterling that he should contact Dr. Alade if M.R. became dizzy; if she was not waking up; if she was sluggish; if there was any change in her normal alertness; if she was not eating; if she appeared more confused than usual; or if she was combative. Ms. Mays continued to monitor M.R.’s condition over the next two days to ensure that her initial findings were accurate. Ms. Mays also followed-up with Mr. Sterling over the next two days to ensure that he followed her orders. There was no change in M.R.’s level of consciousness during the overnight period of January 14 through 15, 2015. On January 15, 2015, at 5:30 p.m., Ms. Mays returned to APCH and conducted another examination of M.R. At this time, M.R. appeared guarded. Nevertheless, Ms. Mays observed that the hematoma was healing, and had reduced in size from two inches to one inch in circumference. The area was non-tender. There had been no change in M.R.’s level of consciousness. M.R.’s vital signs reflected a blood pressure reading of 122/78 and a heart rate of 82, which are within normal limits.3/ Notably, by this time, fluid that had collected in the hematoma had begun to collect in the facial tissues, resulting in M.R.’s facial area appearing purple/blue in color. At hearing, Ms. Mays explained that for a geriatric patient such as M.R. with non-elastic skin, it is reasonable that the fluid collected in the hematoma would dissipate downward with gravity in other areas of the body, such as to the face. Based on her examination of M.R. on January 15, 2015, Ms. Mays’ assessment remained hematoma secondary to head trauma. Again, Ms. Mays determined that nothing more than first-aid type treatment was required. Following her examination of M.R. on January 15, 2015, Ms. Mays’ recommended treatment called for Tylenol (325mg ii tabs)4/ and ice to be applied to the forehead, if needed; the checking of alertness; and required the caregiver, Mr. Sterling, to call M.R.’s primary doctor (Dr. Alade) if M.R. became confused, dizzy, or there was a change in her level of consciousness. Ms. Mays again documented her findings and treatment plan in “SOAP” notes dated 5:30 p.m., on January 15, 2015. On January 16, 2015, at 5:35 p.m., Ms. Mays returned to APCH and conducted another examination of M.R. At this examination, M.R. was less guarded. Ms. Mays observed that the hematoma was continuing to heal and had reduced in size from one inch to .75 inch in circumference. The area was non-tender. There had been no change in M.R.’s level of consciousness. M.R.’s vital signs reflected a blood pressure reading of 117/74 and a heart rate of 76, which are within normal limits. However, by this time, Ms. Mays observed a purple/blue discoloration on both sides of M.R.’s face and a dark green and yellow color on the bridge of her nose. This observation was consistent with blood collecting in the tissues of her face as previously determined by Ms. Mays. Based on her examination of M.R. on January 16, 2015, Ms. Mays’ assessment remained hematoma secondary to head trauma. Again, Ms. Mays determined that nothing more than first-aid type treatment was required of M.R. Following her examination of M.R. on January 16, 2015, Ms. Mays’ treatment plan called for Tylenol (325mg ii tabs), if needed; the checking of alertness; and required the caregiver, Mr. Sterling, to call M.R.’s primary doctor (Dr. Alade) if M.R. became confused, dizzy, or there was a change in level of consciousness. Ms. Mays again documented her findings and treatment plan in “SOAP” notes dated 5:33 p.m., on January 16, 2015. Following her examination of M.R. on January 16, 2015, Ms. Mays had no further face-to-face contact with M.R. between January 16, 2015, and January 21, 2015. The January 20 through 27, 2015, Survey and Its Aftermath From January 20 through 27, 2015, a standard biennial revisit survey was conducted at APCH by Ms. Calixte-Joasil. Upon arriving at APCH at 9:15 a.m., on January 20, 2015, to conduct the revisit survey, Ms. Calixte-Joasil observed M.R. sitting on the couch. Ms. Calixte-Joasil observed M.R.’s face with the different discolorations and bruises. Ms. Calixte- Joasil became concerned based on M.R.’s appearance. Ms. Calixte- Joasil proceeded to take three photographs of M.R.’s face. Based on “the way she looked,” Ms. Calixte-Joasil believed that M.R. needed to see a doctor “just to be on the safe side to make sure she didn’t suffer any other injuries.” M.R. had already been scheduled to see Dr. Alade on January 20, 2015, for a “normal appointment,” unrelated to her January 14, 2015, fall. Ms. Calixte-Joasil saw M.R. leave APCH on January 20, 2015, accompanied by another caregiver of APCH (“Ms. Esther”) who provides transportation. Ms. Calixte-Joasil observed M.R. and Ms. Esther linking arms, with Ms. Esther assisting M.R. walking out of the facility. At that time, Ms. Esther had M.R.’s resident file with her. Ms. Calixte-Joasil assumed Ms. Esther was taking M.R. to see Dr. Alade. Both Ms. Calixte-Joasil and Mr. Mays believed that on January 20, 2015, Ms. Esther took M.R. to Dr. Alade’s office on January 20, 2015, for her regularly scheduled appointment. Unbeknownst to Ms. Calixte-Joasil or Mr. Mays on January 20, 2015, however, Ms. Esther did not take M.R. to see Dr. Alade on January 20, 2015, as she was supposed to do. The next day, January 21, 2015, Ms. Calixte-Joasil called Dr. Alade’s office directly and found out that he did not see M.R. on January 20, 2015. When Mr. Mays found out that Ms. Esther had not taken M.R. to see Dr. Alade on January 20, 2015, Ms. Ester was suspended by APCH for two weeks and subsequently terminated. On January 21, 2015, Ms. Mays contacted Dr. Alade for the first time regarding M.R.’s fall on January 14, 2015. Ms. Mays contacted Dr. Alade on January 21, 2015, because by this time, AHCA was questioning the care that had been provided to M.R. by APCH. When Ms. Mays spoke to Dr. Alade on January 21, 2015, she explained her examinations, assessments, and treatment of M.R. from January 14 through 16, 2015. No persuasive evidence was adduced at hearing that Dr. Alade recommended that M.R. be taken to the hospital or that he needed to see her for an immediate evaluation. Upon her return to APCH on January 21, 2015, Ms. Calixte-Joasil continued her survey and investigation as to what transpired with M.R. Ms. Calixte-Joasil examined Ms. Mays’ “SOAP notes.” Ms. Calixte-Joasil’s testimony that she was unable to determine from her review of Ms. Mays’ notes whether M.R. had made any improvement between January 14 and 16, 2015, is unpersuasive, and not credited. Notably, at hearing, Arlene Mayo-Davis, AHCA’s nursing expert, acknowledged that during that time, the SOAP notes reflect that the hematoma was getting better and healing. Ms. Calixte-Joasil made no effort to communicate with Ms. Mays on January 20 or 21, 2015. However, Ms. Calixte-Joasil contacted the Department of Children and Families (“DCF”) because of how M.R. looked and after finding out that M.R. did not go to the doctor as scheduled on January 20, 2015. Ms. Calixte-Joasil suspected that M.R. was the victim of abuse “from the way she looked, the fall.” Ms. Calixte-Joasil expected DCF “to come out and investigate based on my findings and what I had said.” DCF arrived at APCH on January 23, 2015, along with law enforcement. DCF arranged for M.R. to be taken by ambulance to the North Shore Medical Center emergency room. Upon learning that M.R. had been taken to the emergency room, Ms. Mays called Dr. Alade. After talking to Dr. Alade, Ms. Mays met M.R. at the emergency room and provided the emergency room physician with a report as to what happened. Ms. Mays proceeded to the emergency room and provided the emergency room physician with a report as to what happened. M.R. was admitted to the hospital on January 23, 2015. Dr. Alade agreed on January 23, 2015, that M.R. should be admitted to the hospital, and he traced M.R.’s pre-admission work-up.5/ The emergency physician who examined M.R. at the hospital reviewed Ms. Mays’ notes, and Ms. Mays testified that the emergency room physican agreed with her assessment and treatment of M.R. On January 29, 2015, M.R. was discharged from the hospital with a diagnosis of contusion and urinary tract infection. The discharge diagnosis of contusion confirms that M.R. did not suffer any fractures or a brain injury as a result of the January 14, 2015, fall, and is compatible with the need for first-aid type treatment, only, which was adequately provided by APCH. There is nothing more that APCH could have done that would have changed the course of M.R.’s recovery from her injuries resulting from the fall. Following her discharge, M.R. was returned to APCH on January 29, 2015. On February 3, 2015, Dr. Alade examined M.R. and completed AHCA’s Form 1823. Following his examination of M.R. on February 3, 2015, Dr. Alade indicated that M.R.’s facial contusion had resolved. At no time has Dr. Alade expressed any concern about the manner in which M.R. was medically treated at APCH. Dr. Alade recommended that M.R. return to APCH where she has resided ever since. M.R.’s guardian approved of M.R.’s return to APCH. AHCA’s Alleged Deficiencies as a Result of the January 20 through 27, 2015, Survey AHCA’s proposed agency action to deny APCH’s renewal license is based on three purported Class II deficiencies and one purported uncorrected Class III deficiency. Each of these alleged deficiencies relate to M.R.’s fall on January 14, 2015, and the subsequent January 20 through 27, 2015, survey. The undersigned turns now to specifically address each of these alleged deficiencies upon which AHCA’s proposed agency action is based. Tag A030: Class II Deficiency As a result of the January 20 through 27, 2015, survey, AHCA charged APCH with the following Class II deficiency: Tag A030 58A-5.0182(6) FAC; 429.28 FS Resident Care-–Rights & Facility Procedures: * * * he facility failed to provide access to adequate and appropriate health care consistent with established and recognized standards within the community for one out of eight [M.R.] residents. In support of its position, AHCA presented the expert testimony of Ms. Mayo-Davis. Ms. Mayo-Davis is a licensed registered nurse. She has been licensed since 1988. At hearing, AHCA’s counsel offered Ms. Mayo-Davis as an expert in the area of general nursing. Without objection, she was accepted by the undersigned as an expert in general nursing. By way of background, Ms. Mayo-Davis worked as a registered nurse at two hospitals for a total of seven years, focusing on medical, surgical, oncology, and hematology. Since 1995, she has been employed by AHCA. She began her ACHA employment as a registered nurse specialist. She later became a registered nurse supervisor and registered nurse consultant. Ms. Mayo-Davis is currently employed by AHCA as a field office manager. As a field office manager, Ms. Mayo-Davis manages 110 employees in the Delray and Miami, Florida, offices of AHCA. As a field officer manager, Ms. Mayo-Davis reviews deficiencies found at AHCA licensed facility surveys. She reviews hundreds of surveys on an annual basis, but she has not actually performed surveys while employed at AHCA. At hearing, Ms. Mayo-Davis opined that the factual basis supporting this alleged deficiency is that the facility “did not seek additional health evaluation after the resident had a fall.” Ms. Mayo-Davis testified that based on her review of the three photographs taken on January 20, 2015, and other documents, her nursing impression is that there was the potential for a brain injury or fracture of the face and that M.R. needed to be assessed by a doctor, not a nurse, and also taken to the hospital to evaluate whether or not some additional diagnostic testing needed to be done (i.e., CAT scan or X-ray). Ms. Mayo-Davis opined that M.R. still needed to go to the hospital even though by the third day “things were resolving.” At hearing, Ms. Mayo-Davis conceded that there is no evidence that M.R. suffered a brain injury or fracture to the face as a result of the fall on January 14, 2015. Importantly, at hearing, Ms. Mayo-Davis conceded that she never saw or examined M.R., and that she has never been to APCH. The undersigned rejects Ms. Mayo-Davis’ opinions as unpersuasive. The undersigned accepts and finds Ms. Mays’ opinions persuasive. By way of background, Ms. Mays received a bachelor’s degree in nursing from the University of Miami in 1999 and a master’s degree in nursing for clinical research from Duke University in 2001. She received a post-masters’ certificate as a psychiatric nurse practitioner from the University of Florida in 2013 and a doctoral degree in nursing practice from the University of Florida in August 2015. Ms. Mays has been licensed as a registered nurse in Florida since 1997. She is also licensed as a registered nurse in North Carolina and Kentucky. She is also licensed as an advanced registered nurse practitioner in Florida and Kentucky. Ms. Mays received training as an ALF administrator in Florida, and she is certified by the State of Florida to train ALF trainers. Ms. Mays began her work experience as a telemetry nurse for two years at Kendall Regional Medical Center. After that, she studied at Duke University where she became a clinical instructor for nursing students at Vance-Granville Community College, as well as the staff coordinator trainer at a nursing home in North Carolina. After that, Ms. Mays moved to Kentucky for six months where she was hired to be a director of a nursing home. She then returned to South Florida, where she accepted the position of director of nursing for a ventilator unit at Miami Hart Hospital, a position she held for three years. After Ms. Mays received her post-master’s certificate as a psychiatric nurse practitioner, she was then hired to work at West Palm Hospital as a psychiatric nurse practitioner. She is currently employed as an assistant professor at the University of Miami for clinical studies in the School of Nursing, in addition to her duties as the nursing care consultant at APCH. At hearing, without objection, Ms. Mays was accepted as an expert in the areas of general nursing, nursing standards, fall management, core training as it relates to ALFs, and nursing as it relates to the administration and management of ALFs. Ms. Mays persuasively opined that the acute course of M.R.’s medical condition occurred between January 14 and 16, 2015. During this time period, there was no change in M.R.’s condition because of her injuries from the fall which necessitated APCH contacting M.R.’s primary care physician or taking her to the hospital. M.R. was able to carry out her same activities of daily living she had done before the fall. Ms. Mays persuasively opined at hearing that had there been any indication of a brain injury as a result of the fall, the symptoms would have manifested during the January 14 through 16, 2015, period. However, no symptoms of a brain injury were presented, and there was no indication of a fracture. The persuasive evidence adduced at hearing establishes that APCH provided the correct course of treatment following M.R.’s fall, and there was no need for any further medical treatment or assessment of M.R. as a result of her injuries from the fall. M.R. was not subject to abuse or neglect by APCH, and AHCA failed to prove an intentional or negligent act by APCH seriously or materially affecting the health of M.R. Based on the particular facts of this case, the first-aid medical treatment provided by APCH as a result of M.R.’s injuries from the fall was adequate, appropriate, and consistent with the established and recognized standards within the community. Mr. Sterling was trained and qualified to perform the first-aid type treatment that he did and to contact Dr. Alade if there was any change in M.R.’s condition. Mr. Sterling’s first-aid treatment of M.R. was consistent with Ms. Mays’ protocol. The treatment protocol was sufficiently documented and followed. The preponderance of the evidence presented at hearing fails to establish a violation of Tag A030. Tag A077: Class II Deficiency As a result of the January 20 through 27, 2015, survey, AHCA also charged APCH with the following Class II deficiency: Tag A077: 58A-5.019(1) FAC Staffing Standards--Administrators * * * he facility failed to be under the supervision of an administrator who is responsible for the provision of appropriate care for one out of eight [M.R.] residents. The facility administrator, Mr. Mays, is responsible for the provision of appropriate care for the residents. At hearing, Ms. Calixte-Joasil testified that it is the administrator’s responsibility to ensure that the resident receive appropriate care. She testified that the reason she cited APCH for this deficiency is because Mr. Mays, “never ensured that she saw a doctor,” there was no documentation that she saw a doctor, and then when she contacted the doctor’s office, Dr. Alade had not seen her. Again, this deficiency is based on M.R.’s fall, and AHCA’s position that M.R. did not receive appropriate care as a result of her injuries from the fall. However, as detailed above, the undersigned has found that M.R. received adequate and appropriate care as a result of her injuries from the fall. The preponderance of the evidence presented at hearing fails to establish a violation of Tag A077. Tag A025: Class II Deficiency As a result of the January 20 through 27, 2015, survey, AHCA also charged APCH with the following Class II deficiency: Tag A025: 58A-5.0182(1) FAC Resident Care- Supervision * * * he facility failed to maintain a written record of any significant change for one out of eight residents [M.R.]. At hearing, Ms. Calixte-Joasil testified that the factual basis for this alleged deficiency is that APCH did not have any written record of any “significant change” for M.R. following the fall. The determination of whether a resident suffered from a “significant change” in behavior or mood cannot be made by a non- medical professional. Nevertheless, Ms. Calixte-Joasil made the determination that M.R. suffered from a “significant change” in her health status because of the “bump” on her head and “discoloration of the resident’s eyes.” The contusion caused by M.R.’s fall, which later resolved, did not result in a significant change in her health status. As detailed above, the injuries M.R. sustained as a result of the fall were short-term, requiring first-aid treatment, only. M.R. was able to continue to carry out her same activities of daily living before and after the fall. The credible and persuasive evidence adduced at hearing establishes that M.R. did not suffer from a “significant change” in her health status as a result of her injuries from the fall on January 14, 2015. The preponderance of the evidence presented at hearing fails to establish a violation of Tag A025. Tag A152: Uncorrected Class III Deficiency As a result of the January 20 through 27, 2015, survey, AHCA also charged APCH with the following Class III uncorrected deficiency: Tag A152: 58A-5.023(3) FAC Physical Plant-– Safe Living Environ/Other * * * he facility failed to maintain a safe living environment free from hazards. This alleged deficiency is premised on Ms. Calixte-Joasil’s belief that M.R.’s fall was caused by her tripping over a metal threshold at the entrance of APCH. At hearing, Ms. Calixte-Joasil testified that her belief is based on a conversation she had with Mr. Sterling on January 27, 2015. However, a review of Ms. Calixte-Joasil’s survey notes reflects that Mr. Sterling told her that his back was toward M.R. when she fell, and he did not actually see when M.R. fell. At hearing, Ms. Calixte-Joasil further testified that Ms. Mays told her that M.R. fell as a result of the metal threshold. However, Ms. Calixte-Joasil acknowledged that this purported statement is not in her survey notes. At hearing, Mr. Mays denied making the purported statement to Ms. Calixte- Joasil. No persuasive and credible evidence was adduced at hearing to demonstrate what caused M.R. to fall on January 14, 2015. Although APCH did not dispute in its Petition for Formal Hearing that M.R. “fell at the entrance of the facility,” that does not mean that she tripped over the metal threshold at the entrance of the facility. No witnesses who actually saw M.R. fall testified at the hearing. M.R. could have tripped over her own two feet at the entrance to the facility. Ms. Calixte-Joasil’s testimony that M.R. fell because she tripped over the metal threshold is not credited. Mr. Mays’ testimony is credited. In sum, the persuasive evidence adduced at hearing fails to establish that M.R. tripped over the metal threshold at the entrance door to APCH on January 14, 2015, which caused her to fall and suffer injuries.6/ Moreover, the evidence presented at hearing fails to establish that the metal threshold was a hazardous or potential hazardous condition. At hearing, Ms. Calixte-Joasil testified that when she observed the metal threshold during her January 2015 inspection, “[i]t was elevated a little bit.” Based on her belief that M.R. fell on January 20, 2015, she cited this deficiency as a repeat environmental hazard. APCH was unaware that the metal threshold was a potential hazard prior to the January 20 through 27, 2015, survey. There is no history of anyone ever tripping over the metal threshold prior to January 14, 2015. The metal threshold is not an uncorrected deficiency from the October 21, 2014, survey. The metal threshold was in the same condition on January 20, 2015, as it was at the time of the October 21, 2014, survey. The metal threshold was in the same condition it had been in when APCH commenced operations in 2013. Ms. Calixte-Joasil had been to APCH on multiple occasions prior to the October 21, 2014, survey, and used the same entrance where the metal threshold is located. Notably, Ms. Calixte-Joasil did not cite the metal threshold as an environmental hazard at any time prior to the October 21, 2014, survey, or when she conducted the October 21, 2014, survey. Ms. Calixte-Joasil made no mention to APCH of any issue with the metal threshold prior to the January 20 through 27, 2015, survey, and APCH was never made aware by AHCA that the metal threshold was a tripping hazard prior to the January 20 through 27, 2015, survey.7/ At hearing, Ms. Calixte-Joasil conceded that by the time of the January 20 through 27, 2015, survey, all of the items cited in the October 21, 2014, survey had been timely repaired. APCH’s license was set to expire on February 26, 2015. On February 23, 2015, AHCA conducted a standard biennial second revisit survey at APCH, at which time no deficiencies were found. At hearing, Ms. Calixte-Joasil conceded that all of the January 20 through 27, 2015, citations were timely corrected prior to the February 23, 2015, survey. Thus, there were no deficiencies at the facility for weeks prior to the March 10, 2015, denial letter. 8/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that AHCA enter a final order granting APCH’s license renewal application. DONE AND ENTERED this 9th day of December, 2015, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of December, 2015.
The Issue The issue for determination is whether Petitioner was subjected to discrimination in the work environment by the Department of Corrections (DOC) due to Petitioner's race, sex, and handicap in violation of Section 760.10(1)(a), Florida Statutes.
Findings Of Fact Petitioner, Thaise Hampton, is a female African- American. On January 20, 1995, Hampton was hired by the Correctional Educational School Authority (CESA) to work as a teacher at DOC's Apalachee Correctional Institution (ACI). Hampton had not worked before that time. During the 1995 legislative session, CESA was abolished by the State of Florida Legislature. CESA’s education and job training program functions were transferred to DOC along with most positions, inclusive of Hampton’s. Hampton was placed on probationary status as a DOC employee, effective July 1, 1996. On April 12, 1996, Hampton had an on-the-job injury when she slipped and fell in the cafeteria of the institution. The State of Florida's Division of Risk Management (Risk Management) administered the workers’ compensation case for the State of Florida. Hampton was treated by a physician and excused from work because of the injury. Hampton was evaluated by Michael W. Reed, M.D., an authorized treating physician for Hampton’s work-related injury, on July 15, 1996. By correspondence dated July 22, 1996, Dr. Reed reported his evaluation of Hampton. Dr. Reed found that Hampton suffered from lumbar degenerative disc disease. He recommended physical therapy and light duty work restrictions on lifting objects greater than 20 pounds. On August 29, 1996, DOC received further correspondence forwarded by Risk Management from Dr. Reed. In that correspondence dated August 28, 1996, Dr. Reed stated that Hampton could return to work full duty and that she had reached Maximum Medical Improvement, with a 0 percent permanent impairment rating. He did not indicate that there were any work restrictions. Hampton reported to work on September 3, 1996. At that time, she was utilizing a walker to ambulate around the compound. Joseph Thompson, the Warden at ACI, and the hiring/firing authority over Hampton at that time, expressed security concerns that Hampton was utilizing a walker. He asked the personnel manager, Derida McMillian, to inquire into the situation. As a result, McMillian contacted Paul Bohac, Hampton’s supervisor, and requested that both he and Hampton come to her office. She then informed Hampton that she was not authorized to utilize a walker unless a physician had prescribed one for her use. She told Hampton that she was in receipt of a letter from Dr. Reed that indicated she could return to work on regular duty with no restrictions and that a walker represents such a restriction. McMillian then told Hampton that she could not use a walker at work until she produced a medical report indicating a need for same. She also told Hampton that a physician’s statement would be needed or her leave would not be authorized. Hampton stated that she understood and would provide the appropriate medical reports on September 5, 1996. McMillian relayed Hampton’s statements that she would provide documentation by September 5, 1996, to Margaret Forehand, a personnel technician who was a liaison with the Division of Risk Management at that time. Because no such documentation was received by September 5, 1996, Forehand called Hampton at home on September 9, 1996. Hampton advised her that she would get her attorney to obtain a doctor’s statement. On September 10, 1996, Hampton called Forehand and said that her lawyer would obtain a doctor’s statement and send it to DOC. On September 17, 1996, Hampton contacted Forehand with questions regarding her paycheck received on September 13, 1996. Forehand advised that DOC had not received the physician’s statement that was to have been provided on September 5, 1996. Forehand reiterated at that time that Hampton needed to provide a doctor’s note as to her status. Hampton told Forehand that her attorney would be taking care of the matter. On September 18, 1996, Forehand spoke with Alice Taylor at the Division of Risk Management and was advised that Risk Management had received a letter from a Dr. Ayala regarding Hampton’s condition. Taylor told Forehand that Ayala's letter did not change anything--Hampton had not been removed from work or prescribed a walker. Neither McMillian nor Forehand was aware of any prescription for a walker by a Dr. Randall dated June 3, 1996, until March 11, 1997, when they were shown the prescription. Additionally, Forehand had no record indicating that Dr. Randall was approved by the Division of Risk Management as a treating physician. On September 19, 1996, Hampton appeared at the personnel office. She did not have a prescription for a walker at that time. Thus, Hampton was considered to be on unauthorized leave status since September 5, 1996. Warden Thompson terminated Hampton’s employment on September 19, 2001, for excessive unauthorized absences. Hampton alleged that several white male employees and an inmate were allowed accommodations: Mr. Ammons; Paul Bohac; and inmate John Peavy. Warden Thompson testified that he approved a request for Mr. Ammons to use a wheelchair after receiving a request from the CESA Personnel Office. He was informed that Mr. Ammons would be retiring in 30 days. Mr. Ammons was not a DOC employee. Warden Thompson stated that he was not aware that Paul Bohac had worn a back brace into the office or that he had brought an ergonomic chair into the office. If he had known that he was using special medical equipment, he would have requested a prescription for the devices. Paul Bohac was not utilizing a walker. Warden Thompson was not aware that inmate John Peavy was issued a walking stick; however, inmates were allowed to utilize assistive walking devices if the medical department authorized it. Warden Thompson approved Hampton’s termination because of her unauthorized absences. She refused to work at full duty or provide a physician’s statement documenting any work restrictions.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered dismissing the Petition for Relief. DONE AND ENTERED this 24th day of April, 2002, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 24th day of April, 2002. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway Suite 100 Tallahassee, Florida 32301 Marva A. Davis, Esquire 121 South Madison Street Post Office Box 551 Quincy, Florida 32353-0551 Gary L. Grant, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway Suite 100 Tallahassee, Florida 32301
Findings Of Fact Maliyah Jones was born on May 28, 2013, at North Florida Regional Medical Center located in Gainesville, Florida. Maliyah weighed 3,870 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Maliyah. In a medical report dated September 15, 2015, Dr. Willis opined as follows: In summary, delivery was complicated by a shoulder dystocia, which resulted in an Erb’s palsy. Although depressed at birth, the baby had a good response to resuscitation (bag and mask ventilation) with an Apgar score of 9 at five minutes. The baby’s condition was stated to be stable on admission to the NICU. The newborn hospital course was complicated only by the Erb’s palsy. Discharge was on DOL 2. There was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain during labor, delivery or the immediate post delivery period. NICA retained Laufey Y. Sigurdardottir, M.D. (Dr. Sigurdardottir), a pediatric neurologist, to examine Maliyah and to review her medical records. Dr. Sigurdardottir examined Maliyah on October 28, 2015. In a medical report regarding her independent medical examination of Maliyah, Dr. Sigurdardottir opined as follows: Summary: Maliyah is a 2-1/2 year-old born at term after an uncomplicated pregnancy with shoulder dystocia resulting in a near complete Erb’s palsy. She has required 2 surgical procedures and does have significant disability as per the Mallet scale and is likely to need more surgical procedures to enhance her functional abilities in her right upper extremity. She is, however, functioning well from a cognitive level and her gross motor skills are otherwise intact. In review of the medical records available, it seems clear that her right brachial plexopathy did occur at birth due to mechanical injury. In light of her favorable cognitive and language development our findings are the following: Result as to question 1: The patient is found to have a permanent physical impairment, but to have none or mild delays in language development. She is therefore not found to have a substantial mental and physical impairment at this time. * * * In light of the above-mentioned details, Maliyah’s restricted motor disability and near normal cognitive development, I do not recommend Maliyah to be included into the Neurologic Injury Compensation Association Program and would be happy to answer additional questions or review further medical records. In light of her favorable mental and developmental state it is doubtful that additional records would alter the outcome of our review. She is not felt to have a substantial mental impairment at this time. A review of the file in this case reveals that there have been no expert opinions filed that are contrary to the opinion of Dr. Willis that there was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby's brain or spinal cord during labor, delivery or the immediate post-delivery period. Dr. Willis’ opinion is credited. There are no contrary expert opinions filed that are contrary to Dr. Sigurdardottir’s opinion that Maliyah is not found to have a substantial mental impairment at this time. Dr. Sigurdardottir’s opinion is credited.
The Issue Whether Cody Smith has suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan, as alleged in the claim for compensation.
Findings Of Fact Cody Smith (Cody) is the natural son of Lisa Smith and Jeffrey Smith. He was born a live infant on May 1, 1991, at Memorial Hospital, in Broward County, Florida, and his birth weight was in excess of 2500 grams. The physicians delivering obstetrical services during the birth of Cody were Sidney Morrison, M.D., and Robert Siudmak, M.D., who were, at all times material hereto, participating physicians in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. Cody's delivery at Memorial Hospital on May 1, 1991, was not without complications. Being post term, with a delivery weight of 10 pounds 3 ounces, Cody's extraction was difficult, and due to a "moderate to severe degree of shoulder dystocia" ("the shoulder was hung up in the birth canal") force was necessary to extract him from the birth canal. As a consequence of such force, trauma to segments of the brachial plexus occurred which induced a left upper extremity Erb's palsy. Today, while improved from his initial condition, Cody's physical impairment, occasioned during the course of delivery, may be described as permanent and substantial; however, a brachial plexus injury, which can result in an Erb's palsy, is not an injury to or a consequence of any injury to the brain or spinal cord. 1/ Moreover, Cody's mental functioning is age appropriate, and he has not been shown to have suffered any mental impairment, much less a substantial mental impairment.
