Conclusions Fraes Nos. 2008013980 2008013874 2009004203 2009003498 RENDITION NO.: AHCA-09- \ c:o2.. -5-OLC Having reviewed Administrative Complaint for Case No. 2008013980, dated April 10, 2009 (Ex. 1); Administrative Complaint for Case No. 2008013874, dated April 10, 2009 (Ex. 2); Administrative Complaint for Case No. 2009004203, dated July 16, 2009 (Ex. 3); and Notice of Intent to Deny for Case No. 2009003498, dated March 20, 2009 (Ex. 4); attached hereto and incorporated herein, and all other matters of record, the Agency for Health Care Administration ("Agency") has entered into a Settlement Agreement (Ex. 5) with the other party to these proceedings, and being otherwise well-advised in the premises, finds and concludes as follows: ORDERED: The attached Settlement Agreement is approved and adopted as part of this Final Order, and the parties are directed to comply with the terms of the Settlement Agreement. The Respondent shall pay an administrative fine in the amount of ten thousand, five hundred dollars ($10,500.00) and a survey fee in the amount of five hundred dollars ($500.00) for a total of eleven thousand dollars ($11,000.00). The fine and the survey fee are due and payable within sixty (60) days of the rendition of this order. 1 Filed October 13, 2009 4:37 PM Division of Administrative Hearings. If the Petitioner is cited for a Class I or Class II deficiency within one year of the date of the final order executing this settlement agreement, then the full amount of the fines sought in the aforementioned administrative complaints will become due. The Agency agrees that it will not impose any further penalty against Petitioner as a result of the surveys conducted on August 21, 2008, October 1, 2008, November 3, 2008, December 18, 2008, and March 9, 2008. However, no agreement made herein shall preclude the Agency from imposing a penalty against Petitioner for any deficiency/violation of a statute or rule identified in a future survey of Petitioner, which constitutes a cumulative fine or uncorrected deficiency from the surveys conducted on August 21, 2008, October 1, 2008, November 3, 2008, December 18, 2008, and March 9, 2008. The deficiencies from the August 21, 2008, October 1, 2008, November 3, 2008, December 18, 2008, and March 9, 2008 surveys will be deemed proved for such future actions. Furthermore, no agreement made herein shall preclude the Agency from using the deficiencies from the August 21, 2008, October 1, 2008, November 3, 2008, December 18, 2008, and March 9, 2008 surveys in any decision regarding an application(s) for an assisted living facility license, an extended congregate care license, a limited nursing services license, or a limited mental health license. The Notice of Intent to Deny is deemed superseded and the Agency shall begin processing the Petitioner's application. Checks should be made payable to the "Agency for Health Care Administration." The check, along with a reference to this case number, should be sent directly to: Agency for Health Care Administration Office of Finance and Accounting Revenue Management Unit 2727 Mahan Drive, MS# 14 Tallahassee, Florida 32308 Unpaid fines pursuant to this Order will be subject to statutory interest and may be collected by all methods legally available. The petitions for formal administrative proceedings are hereby dismissed. Each party shall bear its own costs and attorney's fees. The above-styled cases are hereby closed. DONE and ORDERED this _i!!_ day of all,p/.{,< , 2009, in Tallahassee, Leon County, Florida. Holly Benson, Secretary Agency for Health Care Administration A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY, ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW OF PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. Copies furnished to: Jan Mills Agency for Health Care Administration 2727 Mahan Drive, Bldg #3, MS #3 Tallahassee, Florida 32308 (Interoffice Mail) Jonathan S. Grout, Esquire Counsel for Petitioner 2160 Park Avenue North Winter Park, Florida 32789 (U.S. Mail) Finance & Accounting Agency for Health Care Administration Revenue Management Unit 2727 Mahan Drive, MS #14 Tallahassee, Florida 32308 (Interoffice Mail) Vikram Mohan, Senior Attorney Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, MS # 3 Tallahassee, Florida 32308 (Interoffice Mail) Bernard Hudson, Unit Manager Division of Administrative Hearings Assisted Living Unit The Desoto Building Agency for Health Care Administration 1230 Apalachee Parkway 2727 Mahan Drive, MS #30 Tallahassee, Florida 32301-3060 Tallahassee, Florida 32308 (Electronic Mail) (Interoffice Mail) CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of this Final Order was served on the above-named person(s) and entities by U.S. Mail, or the method designated, on this f f:y of Agency for Health Care Administration 2727 Mahan Drive, Building #3 Tallahassee, Florida 32308-5403 (850) 922-5873 STATE OF FLORIDA
Findings Of Fact In December, 1984, Petitioner, a black female, began employment with the Respondent. The Petitioner was hired for two positions. In one position, the Petitioner was employed as a (40 percent FTE) Cook, working 40 percent of a full time 40 hour work week, or 16 hours weekly. In the other position, the Petitioner was employed as an "on-call" Mental Health Technician I. The Mental Health Technician employment was an OPS (other personnel services) position with no regularly scheduled working hours. Her place of employment was the geriatric residential treatment system (GRTS) center at Bristol, Florida. On July 11, 1986, the Petitioner was transferred from the OPS Mental Health Technician position to a (50 percent FTE) Mental Health Technician position. In the new position, which entailed completion of a six month probationary period, the Petitioner worked 50 percent of a full time 40 hour work week, or 20 hours weekly. Combined with the job as Cook, Petitioner was employed for 36 hours weekly. At some point prior to the end of 1986, the Petitioner wrote to Ronald Kirkland, executive director for the Respondent. The Petitioner apparently felt that she was the subject of discrimination. The Petitioner demanded that Mr. Kirkland meet with her. She was advised to proceed in accordance with the Apalachee Center's personnel grievance procedure. Assistance in filing a grievance was offered to her, but she refused and continued to demand that Mr. Kirkland personally meet with her. The demand was rejected. In January, 1987, the Petitioner was informed that her job performance in the Mental Health Technician position was not satisfactory. At a meeting, held January 20, 1987, the Petitioner was given a memorandum (dated January 12, 1987) detailing a number of issues which were the basis for her unsatisfactory evaluation. (R-1) Such issues generally included disagreements over working hours, noncooperation with coworkers and abusiveness towards the Program Supervisor. The Petitioner acknowledged the memorandum, and stated that she believed it to be "unreasonable." Due to the unsatisfactory nature of her performance, the probationary period was extended for three months. At the end of the three month extension, in April, 1987, she was again evaluated. She received an above satisfactory evaluation in all categories except attitude, which was satisfactory. By March, 1987, the Respondent had determined that problems existed with the day treatment program at the Bristol GRTS facility and began planning to fully evaluate the operation. The Petitioner was working in the day treatment program. Laura Harris, Day Treatment Coordinator for the Respondent, was assigned to perform the review by Dr. William Perry, Respondent's Director of Geriatric Services. The process began in April, 1987. The staff of the Bristol GRTS facility was notified that the review was being performed and that Ms. Harris would be visiting at specific times to observe their performance. Ms. Harris requested that each day treatment staff person prepare four activities for GRTS clients and attempted to schedule times to observe the staff's presentation of the activities. The Petitioner failed to respond to Ms. Harris' request and did not schedule activity observation sessions. Eventually, Ms. Harris attended one of the Petitioner's activities periods without providing advance notice. Other day treatment staff were responsive to Ms. Harris' requests and cooperated with her suggestions. The Petitioner was not cooperative. The review period continued through August, 1987. On May 5, 1987, the Petitioner resigned from her position as Cook, effective May 18, 1987, and advised her program supervisor that she was available for additional employment as an OPS Mental Health Technician. The Petitioner's requested additional employment would have been during the evening, night and weekend shifts. The request was based on the departure, several weeks earlier, of the person employed as the 11:00 p.m. to 7:00 a.m. Mental Health Technician. The 11:00 p.m. to 7:00 a.m. shift is less popular and more difficult to staff than other work periods. Janey Hall, a black female, is the Bristol GRTS supervisor responsible for securing staff coverage for the evening shifts. The OPS evening shift assignments were generally rotated among staff members. However, due to the difficulty in staffing the 11:00 p.m. to 7:00 a.m. shift, Ms. Hall proposed assigning the coverage to a single individual. The proposal was approved by the Bristol GRTS program supervisor and by Dr. Perry. Ms. Hall selected Penny Mize, a white female, to work the 11:00 p.m. to 7:00 a.m. shift until a permanent employee was hired for the shift. Ms. Mize began working the shift immediately upon the departure of the former employee. There were occasions when black employees filled in for Ms. Mize. As to the Petitioner's request for additional employment hours, the Respondent's supervisory staff was concerned about the Petitioner's ability to successfully respond to the demands of evening, night and weekend shifts. Those shifts provide less supervision of employees than does the day shift. Due to previously noted problems with the Petitioner's job performance, as reported to Dr. William Perry, it was determined that the Petitioner required greater supervision than was available to her on the OPS shifts. Accordingly, her request for additional OPS hours was rejected on May 13, 1987, by Dr. Perry. On May 21, 1987, the Petitioner filed a complaint with the Florida Commission on Human Relations, FCHR No. 87-3619, alleging that the denial of her request for OPS hours as a Mental Health Technician was based on racial discrimination. The Petitioner alleged that Ms. Mize, a white employee, was permitted to work the additional hours, 11:00 p.m. to 7:00 a.m. There was no evidence presented by the Petitioner which would indicate that the denial of her request for the additional hours was racially motivated or based on any factor other than her job performance and the decision to limit her employment to more closely supervised shifts. Subsequent to the Petitioner's filing of FCHR 87-3619, Laura Harris completed the review of the Bristol GRTS facility. Based upon her review she prepared an evaluation of the Petitioner's job performance and a corrective action plan which specified steps the Petitioner was directed to complete in order to continue her employment and improve her job skills, both dated August 26, 1987. (R-3, R-4). The evaluation was severely critical of the Petitioner's attitude, and her unwillingness to work towards improving her interaction with co-workers and facility clients. The evaluation recommended that her employment "be terminated immediately". The Petitioner received the documents on September 10, 1987. Her written comments on the documents indicate that she disputed Ms. Harris' evaluation, and noted that she alone was being required to comply with the corrective action plan. However, the plan was related to the lack of effort and cooperation the Petitioner demonstrated during the Harris review. Other employees, black and white, were cooperative and no other corrective action plans were necessary. During the summer of 1987, the Respondent determined that additional assistance in providing nursing services to Bristol GRTS clients was required. The Respondent initiated establishment of a part-time Licensed Practical Nurse position and decided to delete the Petitioner's Mental Health Technician position to fund the new LPN. On October 15, 1987, the Petitioner was advised by Dr. Perry that the Mental Health Technician position was being eliminated to provide for the LPN position. Dr. Perry proposed to the Petitioner that she accept a position as Cook which would provide 32 hours weekly employment. The Petitioner's period of employment as Cook had been satisfactory. The Petitioner did not agree or refuse to accept the position, but said she would consider it. On October 26, 1987, Laura Harris prepared a follow-up evaluation to the corrective action plan of August 26, 1988. Ms. Harris noted improvement in the Petitioner's performance, although there were substantial problems remaining. Apparently, unaware that the Petitioner's Mental Health Technician position was being eliminated to provide for an LPN position, Ms. Harris recommended that the Petitioner be reevaluated on November 30, 1987. On October 27, 1987, Dr. Perry contacted the Petitioner and informed her that she would be transferred to the Cook's position and that her salary as Cook would remain at the same level as her Mental Health Technician salary, causing no reduction in her rate of pay as could have occurred. The following day, Dr. Perry met with the Petitioner and reiterated the proposal. There was no response from the Petitioner. On November 12, 1987, Dr. Perry delivered a letter, dated November 2, 1987, from Mr. Kirkland, executive director of the Respondent, confirming the prior discussions between Dr. Perry and the Petitioner. The letter stated that her employment as Mental Health Technician would cease on November 12, 1987, and that she would be paid for two additional weeks in lieu of notice. Alternatively, the letter stated that she could begin employment in the Cook's position on November 13, 1987. At the time the letter was delivered, the Petitioner stated that, due to the lack of child care availability, she could not begin the Cook's job on November 13. Dr. Perry suggested she begin on November 16, but the Petitioner refused. The Petitioner's employment at the Bristol GRTS facility concluded on November 12, 1987. In December, 1987, she filed a complaint with the Florida Commission on Human Relations, FCHR 88-1288, alleging that the elimination of her position as Mental Health Technician was in retaliation for the filing of her earlier complaint. There was no evidence that the Respondent's decision to employ an LPN instead of a Mental Health Technician was in retaliation for the earlier complaint or based on any consideration other than to better provide nursing care to the elderly clients of the Bristol GRTS facility. The evidence indicates that the decision to eliminate the Petitioner's position, rather than the position of another Mental Health Technician, was based on the Petitioner's poor job performance during the Harris evaluation period and was made without regard to the earlier complaint. Although at the hearing, the Petitioner repeatedly accused the Respondent's witnesses of perjured testimony, there is no evidence to support the accusation.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Florida Commission on Human Relations enter final orders dismissing the Complaints and Petitions for Relief in FCHR Cases No. 87-3619 and 88-1288. DONE and ENTERED this 21st day of December, 1988, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of December, 1988.
Conclusions Fraes Nos. 2008013980 2008013874 2009004203 2009003498 RENDITION NO.: AHCA-09- \ c:o2.. -5-OLC Having reviewed Administrative Complaint for Case No. 2008013980, dated April 10, 2009 (Ex. 1); Administrative Complaint for Case No. 2008013874, dated April 10, 2009 (Ex. 2); Administrative Complaint for Case No. 2009004203, dated July 16, 2009 (Ex. 3); and Notice of Intent to Deny for Case No. 2009003498, dated March 20, 2009 (Ex. 4); attached hereto and incorporated herein, and all other matters of record, the Agency for Health Care Administration ("Agency") has entered into a Settlement Agreement (Ex. 5) with the other party to these proceedings, and being otherwise well-advised in the premises, finds and concludes as follows: ORDERED: The attached Settlement Agreement is approved and adopted as part of this Final Order, and the parties are directed to comply with the terms of the Settlement Agreement. The Respondent shall pay an administrative fine in the amount of ten thousand, five hundred dollars ($10,500.00) and a survey fee in the amount of five hundred dollars ($500.00) for a total of eleven thousand dollars ($11,000.00). The fine and the survey fee are due and payable within sixty (60) days of the rendition of this order. 1 Filed October 13, 2009 4:41 PM Division of Administrative Hearings. If the Petitioner is cited for a Class I or Class II deficiency within one year of the date of the final order executing this settlement agreement, then the full amount of the fines sought in the aforementioned administrative complaints will become due. The Agency agrees that it will not impose any further penalty against Petitioner as a result of the surveys conducted on August 21, 2008, October 1, 2008, November 3, 2008, December 18, 2008, and March 9, 2008. However, no agreement made herein shall preclude the Agency from imposing a penalty against Petitioner for any deficiency/violation of a statute or rule identified in a future survey of Petitioner, which constitutes a cumulative fine or uncorrected deficiency from the surveys conducted on August 21, 2008, October 1, 2008, November 3, 2008, December 18, 2008, and March 9, 2008. The deficiencies from the August 21, 2008, October 1, 2008, November 3, 2008, December 18, 2008, and March 9, 2008 surveys will be deemed proved for such future actions. Furthermore, no agreement made herein shall preclude the Agency from using the deficiencies from the August 21, 2008, October 1, 2008, November 3, 2008, December 18, 2008, and March 9, 2008 surveys in any decision regarding an application(s) for an assisted living facility license, an extended congregate care license, a limited nursing services license, or a limited mental health license. The Notice of Intent to Deny is deemed superseded and the Agency shall begin processing the Petitioner's application. Checks should be made payable to the "Agency for Health Care Administration." The check, along with a reference to this case number, should be sent directly to: Agency for Health Care Administration Office of Finance and Accounting Revenue Management Unit 2727 Mahan Drive, MS# 14 Tallahassee, Florida 32308 Unpaid fines pursuant to this Order will be subject to statutory interest and may be collected by all methods legally available. The petitions for formal administrative proceedings are hereby dismissed. Each party shall bear its own costs and attorney's fees. The above-styled cases are hereby closed. DONE and ORDERED this _i!!_ day of all,p/.{,< , 2009, in Tallahassee, Leon County, Florida. Holly Benson, Secretary Agency for Health Care Administration A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY, ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW OF PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. Copies furnished to: Jan Mills Agency for Health Care Administration 2727 Mahan Drive, Bldg #3, MS #3 Tallahassee, Florida 32308 (Interoffice Mail) Jonathan S. Grout, Esquire Counsel for Petitioner 2160 Park Avenue North Winter Park, Florida 32789 (U.S. Mail) Finance & Accounting Agency for Health Care Administration Revenue Management Unit 2727 Mahan Drive, MS #14 Tallahassee, Florida 32308 (Interoffice Mail) Vikram Mohan, Senior Attorney Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, MS # 3 Tallahassee, Florida 32308 (Interoffice Mail) Bernard Hudson, Unit Manager Division of Administrative Hearings Assisted Living Unit The Desoto Building Agency for Health Care Administration 1230 Apalachee Parkway 2727 Mahan Drive, MS #30 Tallahassee, Florida 32301-3060 Tallahassee, Florida 32308 (Electronic Mail) (Interoffice Mail) CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of this Final Order was served on the above-named person(s) and entities by U.S. Mail, or the method designated, on this f f:y of Agency for Health Care Administration 2727 Mahan Drive, Building #3 Tallahassee, Florida 32308-5403 (850) 922-5873 STATE OF FLORIDA
