Conclusions THE PARTIES resolved all disputed issues and executed a Stipulation and Agreement, which is attached and incorporated by reference. The parties are directed to comply with the terms of the attached Stipulation and Agreement. Based on the foregoing, this file is CLOSED. i DONE AND ORDERED this 15 day of Sul , 2010, in Tallahassee, Leon County, Florida. THOMAS W. ARNOLD, 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 THE ORIGINAL NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A COPY, ALONG WITH THE FILING FEE 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 THE RENDITION OF THE ORDER TO BE REVIEWED. DOAH Case No, 10-2662MPI AHCA v. Fla. Assoc. for the Deaf/Blind Final Order CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order was furnished by U.S. Mail, interoffice mail, or email transmission to the persons named below on this Pax of Glucke 2010. 272 Mahan Drive, MS #3 Tallahassee, FL 32308 (850) 412-3630 Copies furnished to: Suzanne F. Hood Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 Lillian Garcia, Executive Director The Florida Association for the Deaf/Blind and Multi-Handicapped, Inc. 7575 San Jose Boulevard Jacksonville, Florida 32217 Agency for Health Care Administration Debora E. Fridie Assistant General Counsel, MS#3 Agency for Health Care Administration Division of Health Quality Assurance Home Care Unit, MS #34 Agency for Health Care Administration Bureau of Finance and Accounting, MS#14 Agency for Health Care Administration Bureau of Medicaid Program Integrity, MS#6 Atin: Mike Blackburn, Bureau Chief
The Issue The issues in this case are whether Respondent terminated Petitioner due to race or handicap and, if so, the nature of the relief that she should be awarded. The parties agreed to reserve the issue of attorneys' fees for a later hearing, if necessary.
Findings Of Fact The parties have stipulated that Respondent is an "employer" and Petitioner is a "person," within the meaning of Section 760.02. Respondent is an African American female. Respondent employed Petitioner as a phlebotomist. She was hired on December 28, 1987, as a phlebotomist for International Clinical Laboratories, which was acquired by Respondent in 1988. While employed for Respondent and its predecessor, Petitioner worked at the main facility adjacent to Tallahassee Community Hospital. A phlebotomist collects blood and urine, supervises specimen collection, provides off-site service when needed, and completes associated paperwork. The job requires bending and stooping when collecting specimens and sometimes requires physically subduing combative patients. Petitioner took short-term disability leave from September 16 to October 16, 1991. Three months later, Petitioner injured her knee on January 12, 1992, when she bumped it into a cabinet at work. She took a couple of days off for this injury. On April 12, 1992, Petitioner injured her lower back while taking blood from an uncooperative patient. She sought treatment from Dr. Robbie G. Hansen, a chiropractic physician. Dr. Hansen gave Petitioner no orders concerning work, which she continued to attend, even though she was in pain. At the same time, Respondent was beginning to address some problems experienced by several phlebotomists, including Petitioner, in maintaining the chain of custody of specimens. Respondent's supervisors counselled several such employees, including Petitioner. On May 5, 1992, Deborah Glee, an African American female, counselled Petitioner orally for a mistake in the collection of a urine sample taken as part of a drug screen. On June 24, 1992, Dr. Harold Panzik, a white male who is the general manager of Respondent's facilities in northwest Florida, counselled three employees, including Petitioner, for mistakes in maintaining the chain of custody of urine samples. A week later, Ms. Glee counselled Petitioner for another chain-of- custody mistake. On July 15, 1992, Petitioner refused to perform a specimen collection for Tallahassee Community Hospital, Respondent's most important client. She caused a disruption in front of patients and coworkers. On the same day, Pete Lowhorne, a white male supervisor, issued Petitioner a written warning for an error in the collection of urine samples for drug screens. On August 3, 1992, Dr. Hansen advised Petitioner to discontinue working for a week in order to obtain relief from the pain from which she had been suffering. He intended to reevaluate her in a week to determine if her condition had improved. He wrote her a doctor's excuse from work for one or two weeks. Respondent placed Petitioner on short-term disability leave. Under Respondent's policy, as expressed in the employee handbook given to Petitioner previously, an employee begins short-term disability leave after five days' absence due to injury or illness. Short-term disability leave may extend up to 130 working days, at which time the employee becomes eligible for long-term disability leave. Long-term disability leave is then available. While on short-term disability leave, Petitioner received rehabilitation services from Maria Halpin, who was the rehabilitation counsellor for Respondent's workers' compensation carrier. Ms. Halpin scheduled medical examinations for Petitioner with Dr. Antolic and Dr. Bellamy. Dr. Hansen released Petitioner to return to work on August 19, 1992, with limited bending and stooping. Instead of returning to work, Petitioner sought treatment from Dr. Pierce Jones, an orthopedist. Dr. Jones first saw Petitioner on August 24, 1992, and he dismissed her on September 9, 1992, after determining that he could do nothing more for her. Petitioner then returned to Dr. Hansen, who referred her to Dr. Antolic, who, in November, advised Petitioner that she could return to work. Petitioner also saw Drs. Willis and Hoffman at the Spinal Testing and Strength Center. They excused her from work, but released her to return to work on November 11, 1992, provided that she not lift more than 25 pounds, engage in any prolonged bending, or work more than four hours per day for the first week. Ms. Halpin helped design a plan for Petitioner to return to work gradually. The schedule called for Petitioner to work two to four hours daily the first week, four hours daily the second week, six hours daily the third week, and, if able, eight hours daily the fourth week. For the first two weeks, Petitioner was to work in a less physically demanding position as a receptionist and then return to her job as a phlebotomist. Dr. Panzik created the receptionist job for Petitioner, who would thus have, during the first two weeks, only occasional phlebotomy duties. Before Ms. Halpin's plan was implemented, Petitioner returned to work as a phlebotomist on November 11, 1992. She worked parts of a couple of days that week. Petitioner returned to work under Ms. Halpin's plan on Monday, November 16. She found that she could not sit prolonged periods in the new position as receptionist. She worked a few days, but never more than two or three hours during a single day. Feeling unable to work in any position, Petitioner last worked for Respondent on November 27, 1992. On that day, she visited Dr. Hansen, who felt she could return to work and referred her to Dr. Antolic. On December 3, 1992, Petitioner returned to Dr. Antolic. Discovering Ms. Halpin with Dr. Antolic upon her arrival, Petitioner became angry, confronted both of them, and dismissed Ms. Halpin from her case. On that day, Dr. Antolic concluded that Petitioner just does not have enough objective findings to limit return back to work. I feel she is able to go back to light-duty work 4 hours per day until 01/01/93. At that time she should be able to tolerate full duties with limitations of no lifting greater than 25 pounds. I explained to her that she should be able to go back to light- duty work, but she became extremely unhappy, stood up and walked out of examining room saying "this is not why I came from Quincy." Unfortunately, it appears that I have nothing more to offer this lady and I will give her maximal medical improvement as of 01/01/93 with a 3.5 percent impairment as a whole person based on her present physical findings. The patient was not given an appointment for re-evaluation. At the same time, Petitioner was seeing her personal physician, Dr. Whiddon, for unrelated problems with her knee and blood pressure. Dr. Whiddon gave her an excuse from work for these problems for November 19 and 20, 1992, and January 1-11, 1993. This was the only doctor's order excusing Petitioner from significant periods of work that she possessed after her return to work in November. At the request of her attorney, Petitioner sought another opinion from Dr. Bellamy. On January 22, 1993, Dr. Bellamy found "[n]o abnormality found other than obesity. My suggestion is that she lose a lot of weight and exercise vigorously on a regular basis. I would expect her to continue to complain of pain." By the time of the last visit with Dr. Bellamy, Drs. Jones and Antolic had also dismissed Petitioner as a patient. After her unsuccessful return to work in November 1992, Petitioner's employment relationship with Respondent became attenuated. She did not supply her employer with doctors' excuses because most of the time she did not have any. She spoke to Dr. Panzik's assistant two times and possibly to Dr. Panzik, but neither of them assured Petitioner that she could return to her job. In January, Petitioner called Mr. Lowhorne and promised him a doctor's excuse for her knee. He referred her to Dr. Panzik's assistant, with whom Petitioner discussed the possibility of more sick pay for the new year. When the assistant told Petitioner that she was ineligible for more sick pay, Petitioner asked about resigning in order to obtain the balance of a profit-sharing account. After thinking about the option, Petitioner told the assistant that she would not resign until she had spoken to her attorney. In January, Brenda Oxley, Respondent's human resources supervisor located in Tampa, discovered that Petitioner had not returned to work after being released to do so. Unaware that Petitioner had not remained at work following her short-lived return in November, Ms. Oxley contacted Dr. Panzik and the workers' compensation carrier and learned of the upcoming January 22 appointment with Dr. Bellamy. Following receipt of Dr. Bellamy's report, Ms. Oxley and Dr. Panzik decided to terminate Petitioner. The employee manual states: for employees who have medical limitations which prohibit them from performing their normal job, an attempt will be made to provide a temporary work assignment suitable to these medical restrictions [and i]f you decline a temporary work assignment, it will be considered a voluntary termination of employment. The manual elsewhere adds: refusal to cooperate in training, rehabilitation, temporary work assignment or placement efforts, when offered will result in disqualification for disability benefits and the employee will be considered to have voluntarily resigned employment effective the last day for which [short-term disability] benefits were approved. By letter dated January 27, 1993, Ms. Oxley informed Petitioner that she was terminated effective February 1, 1993, unless she could produce more information from a doctor by February 1. Petitioner received the letter on February 1, but did not provide such information to Ms. Oxley, Dr. Panzik, or anyone else at Respondent's offices. As of February 1, 1993, Petitioner remained unable or unwilling to return to work as a phlebotomist or any other available assignment. After that date, Dr. Panzik hired Petitioner's temporary replacement, a white female, as a permanent employee. Doubtlessly, Ms. Oxley was not always aware of developments concerning Petitioner after her unsuccessful return to work in November. It is unclear exactly when Petitioner came off short-term disability leave, and it is likely that Ms. Oxley and Dr. Panzik did not come to a common understanding on this point until they spoke after receiving Dr. Bellamy's final report. It is clear, however, that several doctors saw Petitioner, and they all dismissed her and released her to return to work. It is also clear that Petitioner did not return to work, except for a short time in November. These factors, coupled with repeated performance counselling of Petitioner by an African American female supervisor, tend to preclude a finding of discrimination based on race or handicap, even if Petitioner's termination were deemed involuntary. The time had come for Petitioner to return to work or, if unable, pursue other legal remedies available to all other employees claiming to be injured on the job or wrongfully deprived of contractual disability benefits. Petitioner cites two factors as evidence of discrimination. The first is the handling of another employee, Deborah Tinter, a white female, who was allowed to take short term disability. Petitioner used Ms. Tinter for a dual purpose. In addition to being offered as an additional victim of discrimination due to disability, Ms. Tinter was offered as the beneficiary of racial discrimination. Counsel chose not to disclose the nature of Ms. Tinter's afflictions or injuries, except for a minor injury. This appeared to be a commendable attempt to spare the witness embarrassment. However, as the hearing officer warned during the hearing, it is difficult to compare the treatment given Petitioner and Ms. Tinter by Respondent without understanding the natures of their disabilities. But, regardless of the nature of Ms. Tinter's disability, there is no evidence in the record to suggest that the disabilities and impairments arising from Ms. Tinter's afflictions or injuries were in dispute. In this important respect, Ms. Tinter's situation differed from Petitioner's situation and merited different treatment by Respondent. Petitioner also attempted to show that other African American employees were subjected to racial discrimination by Respondent. Several such employees testified that they were victims of racial discrimination. Necessarily, the evidence of discrimination concerning several other employees was summary. It is possible that one or more of these persons in fact have been victims of racial discrimination. However, based on the abbreviated records presented on each such person, Petitioner did not prove that these persons were victims of race discrimination by Respondent. Sometimes, the alleged facts did not establish prima facie racial discrimination. In each case, based on the testimony of the alleged victim, it is at least as likely as not that legitimate, nondiscriminatory reasons existed for the complained-of acts or omissions.
Recommendation It is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. ENTERED on May 24, 1995, in Tallahassee, Florida. ROBERT E. MEALE 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 on May 24, 1995. APPENDIX Rulings on Petitioner's Proposed Findings 1-3: adopted or adopted in substance. 4: rejected as subordinate. 5: adopted or adopted in substance, except for last sentence, which is rejected as unsupported by the appropriate weight of the evidence. 6-7: rejected as subordinate. 8-9: adopted or adopted in substance. 10-12: rejected as subordinate, except that Dr. Jones saw Petitioner and later dismissed her. 13: adopted or adopted in substance. 14: rejected as subordinate. 15-17: adopted or adopted in substance. 18: rejected as subordinate. 19-21: adopted or adopted in substance. 22: rejected as unsupported by the appropriate weight of the evidence. 23: adopted or adopted in substance. 24-25: rejected as recitation of evidence. 26: adopted or adopted in substance, but not for the continuous period in question. 27 (first sentence): rejected as irrelevant. 27 (remainder): rejected as unsupported by the appropriate weight of the evidence. 28: rejected as unsupported by the appropriate weight of the evidence, except for last sentence, which is adopted or adopted in substance. 29-30: adopted or adopted in substance. 31 (first sentence): adopted or adopted in substance. 31 (second sentence): rejected as unsupported by the appropriate weight of the evidence. 32: rejected as unsupported by the appropriate weight of the evidence. 33: adopted or adopted in substance. 34: rejected as unsupported by the appropriate weight of the evidence, except for learning that her short term disability did not recommence in the new year. 35-36: rejected as unsupported by the appropriate weight of the evidence. 37: rejected as subordinate. 38: rejected as irrelevant. 39: rejected as unsupported by the appropriate weight of the evidence. 40-46 (first two sentences): rejected as irrelevant. (remainder): rejected as unsupported by the appropriate weight of the evidence. (first sentence): adopted or adopted in substance. 47 (second sentence): rejected as irrelevant. 48: adopted or adopted in substance. 49-53: rejected as irrelevant. 54: adopted or adopted in substance. 55-57: rejected as irrelevant. 58: rejected as repetitious. 59-60: rejected as subordinate. 61-62: rejected as unsupported by the appropriate weight of the evidence. 63-64: rejected as unnecessary. 65-66: rejected as irrelevant. 67-70: adopted or adopted in substance. 71-82: rejected as irrelevant. 83: rejected as subordinate. 84: adopted or adopted in substance. 85-92: rejected as irrelevant. 93: adopted or adopted in substance. 94: rejected as subordinate. 95-110: rejected as subordinate, unsupported by the appropriate weight of the evidence, and recitation of testimony. 111 (first sentence): rejected as irrelevant. 111 (second sentence): rejected as unsupported by the appropriate weight of the evidence. 112: rejected as recitation of evidence. Rulings on Respondent's Proposed Findings 1-25: adopted or adopted in substance. 26: rejected as subordinate. 27-31: adopted or adopted in substance. 32: rejected as recitation of evidence. 33: rejected as subordinate. 34-35: adopted or adopted in substance. 36: rejected as irrelevant. 37-43: adopted or adopted in substance. 44-45: rejected as irrelevant. 46: adopted or adopted in substance. 47-50: rejected as irrelevant. 51: adopted or adopted in substance. 52-67: rejected as recitation of evidence and subordinate 68: adopted or adopted in substance. 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 Marie A. Mattox Marie A. Mattox, P.A. 1333 North Adams Street Tallahassee, FL 32303 John P. McAdams Carlton Fields P.O. Box 3239 Tampa, FL 33601
Conclusions THIS CAUSE comes before the AGENCY FOR HEALTH CARE ADMINISTRATION (“the Agency") on the requests for partial exemptions for emergency service filed on January 22, 2010, by BARTOW HMA, INC. d/b/a BARTOW REGIONAL MEDICAL CENTER (“Bartow Regional”) seeking partial exemptions from providing the emergency services related to: gastroenterology, urology, otolaryngology, vascular surgery and neurology, as continuous emergency services. On March 12, 2010, the Agency denied these requests for partial exemptions. (Composite Exhibit 1) On April 2, 2010, Bartow Regional timely filed a Petition for Formal Administrative Hearing challenging the denials of the partial exemption requests, which was forwarded to the Division of Administrative Hearings (““DOAH”). On December 1, 2010, Bartow Regional filed its Notice of Voluntary Dismissal in DOAH withdrawing its Petition for Formal Administrative Hearing. On December 2, 2010, the Page 1 of 3 Filed January 27, 2011 9:28 AM Division of Administrative Hearings Administrative Law Judge issued an Order Closing Files, thereby closing the cases. It is ORDERED AND ADJUDGED: 1. The Agency’s actions in denying the requested exemptions are upheld. DONE and ORDERED this “25 day of Facey — , 2011, in Tallahassee, Florida. Agency for Health Care Administration
Findings Of Fact At all times pertinent to the allegations herein, Petitioner was employed as a cabin services attendant by the Respondent, Aircraft Service International, Inc., at the Tampa International Airport. For the most part, he was working the 8:00 PM to 5:00 AM shift. Petitioner started working for Respondent in October, 1988. His duties were to maintain both the inside and outside of commercial passenger aircraft, the owners of which had contracted with Respondent for their cleaning, servicing and supply. When he was first hired by Respondent, Petitioner was given training in the requirements of his duties by video tape. The language used was English and Petitioner is not fluent in English. Nonetheless, he was able to understand the requirements of his job from observing the video and what was depicted thereon. The duties did not change over the approximately 4 years he worked for the Respondent. Petitioner claims that the majority of his duties were outside the aircraft. At the time of his employment, Petitioner was also furnished with several documents, all of which were in English, and none of which did he understand. He signed them all, however, on the recommendation of his friend who had brought him to the company and assisted him in getting the job. Other documentation was explained to him by Mr. Goerbelini, one of his supervisors. At no time, however, did Petitioner feel comfortable with the use of English, and he relied upon others to explain to him what he was signing when any documentation was given to him for signature. Petitioner claims that throughout the entire period he was employed by Respondent he was never late for work. Notwithstanding that claim, Petitioner admitted having received one counselling form and one letter of warning, both of which, it appears, referred to his continuing tardiness and absenteeism. The absenteeism did not begin, however, until toward the end of his employment. Company records show that during 1990 he was absent only 5 days, all of which were sick days. In 1991 he was also absent for 5 sick days. In 1992, however, he was absent 22 days, of which 14 are reflected as sick days, and this was prior to his termination from employment in September, 1992. Petitioner claims that he had no trouble with his coworkers and was satisfied with his job. His performance was described as adequate when he was on duty, and he was never disciplined for improper performance of his duties. In June, 1992, however, after Petitioner had experienced several episodes of dizziness and sleepiness on the job, he went to see Dr. Santayana, an internal medicine specialist, who, after testing, determined that Petitioner was suffering from the onset of diabetes which, the doctor felt, could be treated and controlled by diet. He so advised the Petitioner. The first visit was on June 25, 1992. On August 10, 1992, Petitioner returned to the doctor, having lost 10 pounds, and reported he felt "much better." Again, on September 11, 1992, Petitioner reported to the doctor he had lost an additional 6 pounds and felt "great." Petitioner did not return to see Dr. Santayana after that visit, however. Petitioner claims that while he was suffering the symptoms of his onset diabetes, he would become dizzy, sometimes while he was driving service equipment around aircraft or while he was climbing the 21 or more feet of an entrance gateway in order to service the plane. When he reported this to Mr. Goerbelini, he asserts, he was advised to go home and stay there until he felt better. He did this, but Dr. Santayana indicates there was no medical reason for Petitioner to remain away from work and at no time did he indicate to Petitioner it was necessary for him to do this. On one occasion, Petitioner requested a physician's statement testifying to the diabetic condition, which the doctor provided. On several other occasions, Petitioner requested notes from the doctor that it was all right for him to return to work, and on both occasions, the doctor obliged. On neither, however, did he indicate the reason for Petitioner's absence though Petitioner asserts it was because of his diabetic condition. Petitioner claims he delivered not only the physician's written diagnosis of diabetes but also the two return to work excuses given him by the doctor to Ms. Amorelli, the secretary in the office. She, however, has no recollection of ever having received them, though it appears the work excuses were in the company records. They were not introduced into evidence, however. It appears that the discharge of Petitioner was predicated upon his absenteeism and his tardiness. The company documentation supporting this was not offered into evidence. Testimony of Respondent's witnesses, nonetheless, appears to indicate a repeated period of tardiness, most of which, however, are indicated as being no more than one or two minutes in duration. Petitioner, while denying he was ever tardy, nonetheless indicated that he was shown to be tardy because when he would appear at work to clock in on time, he was not allowed to do so before the regular start of work time. As a result, all shift workers, some 8 to 10 people, were attempting to clock in at the same time. This was impossible, and some, including Petitioner, were, perforce, late. The clock records were not offered, however, and it is difficult to determine the exact number of tardinesses or when they occurred. However, the company witness indicated that Petitioner was late 18 times in 1990, 31 times in 1991, and 8 times in 1992 until his discharge on September 10. There is also some evidence, and Petitioner admits, that while he was working for Respondent, he was also detailing automobiles for extra income. Dr. Santayana indicated that Petitioner's condition should not have any impact on his use of equipment. The diabetes was to be controlled by diet, not medication. At no time did the doctor ever tell Petitioner not to work with the equipment. So long as the diabetes was controlled and did not result in either drowsiness or dizziness, there was no reason that Petitioner could not work. It would appear from the doctor's testimony and records, that the diabetes was being satisfactorily controlled by diet since Petitioner reported his condition had improved and his health was much better. In any case, his diabetes would not have required any special work accommodation. Petitioner alleges that on one visit to the doctor he was advised to remain home from work, but the doctor denies ever having told him this. Petitioner reports that while his diabetes was a problem, he went to Mr. Goerbelini and requested a change to the day shift. He never received it. Petitioner also allegedly reported his condition to a Mr. Rodriguez and to several of his coworkers, yet testimony of the witnesses called by Respondent indicated neither of these ever reported they were aware of his condition. Mr. McClure, the station manager, at no time was made aware of Petitioner's physical problems. He first found out Petitioner had diabetes when he learned the EEOC complaint was filed. Of the more than 200 employees Respondent has at its Tampa operation, approximately 40 percent are Latin. Of the balance, approximately 15 percent are African American and 45 percent are Caucasian. Seventy percent of those who do the type of work done by Petitioner are Latin. Nonetheless, all operations manuals are in English and Respondent has a requirement that all people who work for it at this installation must be able to speak and understand English. This is predicated upon safety conditions and the requirements of at least one of the carriers whose planes are serviced by Respondent, who requires employees working on its aircraft be conversant in English. The written job description also requires familiarity with English. Though Mr. McClure did not hire Petitioner, he is satisfied the procedures in this case, requiring a demonstrated ability to use and understand English, would have been followed in Petitioner's case as they have been in the past. Respondent is familiar with and complies with the requirements of the Americans with Disabilities Act and the Florida Civil Rights Act. Mr. McClure has notified his supervisors that any employee claiming a disability should be brought to his attention personally so that, if possible, an accommodation can be made for that handicap. This is done routinely, and at the present time, there are several employees, many of whom were hired as early as the late 1960's, whose handicaps are accommodated by the Respondent. Respondent contends, and there is no evidence to show it not to be true, that its requirements, rules and regulations dealing with tardiness, absenteeism, and the requirement to be conversant in English are uniformly applied throughout and across the work force. Other employees have been counselled for tardiness and some have been discharged because of attendance problems including tardiness. Notwithstanding Petitioner's claims that he was not counselled regarding his tardiness, Mr. Wells indicates he had discussed Petitioner's tardiness and absenteeism, along with other employees, with Mr. Goerbelini. The latter counselled the Petitioner and this was memorialized on counselling forms, but it is important to note that Petitioner was not the only person being counselled for attendance problems. He was warned in both English and Spanish that his job was in jeopardy, and when his attendance did not improve after the warnings, he was terminated. Notwithstanding the appearance of the doctor's return to work notes in Respondent's records, Mr. Wells indicates that at no time did Petitioner give any explanation for his absences, other than that he was sick. None of Petitioner's drowsy or dizzy spells were brought to his attention. Had he been told that Petitioner's condition was hazardous to him or other workers, they would have found other work for him to do until he improved. Mr. Wells indicates he had difficulty speaking with Petitioner because of language, but after Petitioner was trained, it was clear he spoke enough English to do the job required of him. Wells did not know of Petitioner's diabetes until after he had been fired. Neither Petitioner nor anyone else had brought that information to his attention. Ms. Amorelli was the person who dealt primarily with Petitioner when he would come to work, other than his supervisor. She conversed with him primarily in Spanish since he had difficulty expressing himself in English. Nevertheless, she is satisfied he understood English. When the first written counselling regarding Petitioner's absenteeism and tardiness was completed, she gave it to him to read and he did so. She is satisfied he understood it. The second warning, which was also in writing, was given to him to read and he appeared to understand it as well. She did not receive the discharge statement nor the doctor's undated letter of diagnosis. By the same token, she asserts Petitioner never discussed his illness with her nor did she know he had been diagnosed as having diabetes. According to company policy, when an employee is ill and not going to come to work, he or she is supposed to call her or, in her absence, the immediate supervisor. At no time did Petitioner ever call her about an absence. Her duty hours were usually inconsistent with his, however. She does not know if he called his immediate supervisor. All of Respondent's witnesses testified that while a lateness of one minute would not result in discharge, continued and repeated lateness does, and though other employees were disciplined and ultimately discharged for tardiness, Petitioner stands out, in Ms. Amorelli's mind, as being late more than most employees.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Jorge Pacheco's Petition for Relief from a discriminatory employment practice alleging discrimination on the basis of handicap be denied. RECOMMENDED this 23rd day of March, 1994 in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 23rd day of March, 1994. COPIES FURNISHED: Norman A. Palumbo, Esquire Post Office Box 10845 Tampa, Florida 33679 Terry Rinehart Qualified Representative Aircraft Service International, Incorporated 8240 NW 52nd Terrace, Suite 200 Miami, Florida 33165 Dana Baird General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Sharon Moultry Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
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 Jor day of — Deeanboyr , 2010, in Tallahassee, Florida. Elizabeth Dudek, Interim 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 Filed December 13, 2010 3:13 PM Division of Administrative Hearings 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: Monica Ryan, Assistant General Counsel Agency for Health Care Administration (E-Mail) Cynthia A. Mikos, Esq. ALLEN DELL, P.A. 202 South Rome Avenue, Suite 100 Tampa, Florida 33606-1854 (U.S. Mail) The Honorable Elizabeth W. McArthur Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (E-Mail) Mike Blackburn, Bureau Chief, Medicaid Program Integrity Agency for Health Care Administration (E-Mail) Finance and Accounting Agency for Health Care Administration (E-Mail) Health Quality Assurance Agency for Health Care Administration (E-Mail) Agency for Persons with Disabilities (E-Mail) CERTIFICATE OF SERVICE 1 HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to the above named addressees by U.S. Mail and/or e-mail on this the/3~ day of Lev tee 2010. Richard Shoop, Esquire Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308-5403 Phone: (850) 412-3650 Fax: (850) 921-0158
The Issue The issues for determination in this case are whether Respondent's license should be renewed and whether Petitioner properly imposed a moratorium on Respondent prior to the expiration of Respondent's license.
Findings Of Fact Petitioner is the governmental agency responsible for inspecting assisted living facilities ("ALFs") and enforcing licensure requirements for ALFs in accordance with Chapter 400, Florida Statutes, 1/ and Florida Administrative Code Rule 58A-5. 2/ Respondent is licensed to operate an ALF for six residents. Respondent operates its ALF at 2809 Round About Lane, Orlando, Florida 32818 (the "facility"). Petitioner inspected Respondent's operation of the facility five times. Petitioner surveyed the facility on December 19, 1994, and on March 28 and June 14, 1995. Petitioner conducted a desk review on April 21, 1995. Petitioner conducted a follow-up visit and a complaint investigation at the facility on November 27, 1995. The surveys conducted on December 19, 1994, and on March 28 and June 14, 1995, cited 19 uncorrected deficiencies. The follow-up visit conducted on November 27, 1995, cites four new deficiencies not cited in the previous surveys. The complaint investigation conducted on November 27, 1995, cites two new deficiencies. Petitioner has complied with the alternative requirements of Section 400.419(1)(a). Petitioner has provided Respondent with timely and adequate notice of all deficiencies determined during each inspection. Petitioner provided Respondent with an adequate explanation of the nature of the deficiencies and the corrective action needed. The administrator was present when all of the surveys were conducted. Petitioner discussed the deficiencies with the administrator and explained the corrective action required for each deficiency. A pharmacy consultant was required to assist the administrator with deficiencies in Respondent's medication program Petitioner advised the administrator of the need for Respondent to submit a plan of correction on the deficiency statement with a proposed completion date for correcting each deficiency. Respondent failed to correct the deficiencies. Petitioner filed an administrative complaint against Respondent on November 1, 1995. The administrative complaint charged Respondent with the uncorrected deficiencies cited in all of the surveys except the follow-up visit and the complaint investigation conducted on November 27, 1995. Respondent timely requested a formal hearing. On February 7, 1996, a formal hearing was conducted in Division of Administrative Hearings ("DOAH") Case Number 95-5679. A final order was entered on March 28, 1996. The final order required Respondent to pay a fine of $7,250 pursuant to Sections 400.419(1)(b) and (c), 400.419(2), and 400.414(1). Respondent did not appeal the final order. Respondent failed to pay the administrative fine ordered in DOAH Case Number 95-5679. Petitioner correctly denied the renewal of Respondent's license, in part, because Respondent failed to pay an administrative fine within the meaning of Section 400.417(1). Petitioner correctly imposed a moratorium pursuant to Section 400.415 on the basis of repeated and continuing deficiencies permitted by Respondent. For the same reasons, Petitioner correctly denied the renewal of Respondent's license pursuant to Sections 400.401(3) and 400.414(2)(b), (d), and (g). The deficiencies addressed in Case Number 95-5679 were adjudicated in that case and are not reconsidered in this Recommended Order. Reconsideration of those issues is precluded by the doctrine of collateral estoppel. There are only two matters at issue in this proceeding. They are Respondent's failure to pay the fine ordered in Case Number 95-5679 and the deficiencies determined as a result of the follow-up visit and complaint investigation conducted on November 27, 1995. The deficiencies determined as a result of the follow- up visit conducted on November 27, 1995, are Class III deficiencies within the meaning of Section 400.419(3)(c). The deficiencies cited as a result of the complaint investigation conducted on November 27, 1995, are Class II deficiencies within the meaning of Section 400.419(3)(b). Respondent does not maintain complete personnel files on each member of the staff in violation of Rules 58A-5.024(1)(f) and 58A-5.0191(2)(a). Personnel files maintained by Respondent fail to document staff competency and training in first aid. Respondent does not execute contracts for each resident on or before their admission in violation of Section 400.424 and Rules 58A-5.024(2)(a) and 58A-5.0181(5)(b). Respondent admitted four new residents after June 14, 1995. Respondent does not complete health assessments for those residents admitted after June 14, 1995, in violation of Rule 58A-5.0181(4)(a). The method of management for resident medications is not identified on all health assessments. The administrator incorrectly supervises the residents' self- administration of medication. Respondent does not designate a properly trained person to have access to medications in violation of Rules 58A- 5.0182(6)(b) and 58A-024(1)(c). Respondent does not identify a method of management for resident medications in violation of Rule 58A-5.0182(6). Respondent does not accurately maintain the medication log, including timely and accurate entries of dosages taken by residents. Respondent's staff does not consistently and accurately observe self-administration of medication by residents. Discrepancies exist between the medication and dosages prescribed for residents, those actually taken by residents, and entries by the staff in the medication log. Respondent does not provide required reports by a consulting pharmacist in violation of Rule 58A-5.033(5)(a). The report required on or about April 11, 1995, was not filed until May 31, 1995. None of the subsequent reports required to update the initial report have been filed. Respondent does not note changes in each resident's condition in violation of Rule 58A-5.0182(2)(e). Respondent does not document procedures for the receipt, resolution, and documentation of resident complaints in violation of Rule 58A- 5.0182(7)(d). Menus are undated in violation of Rules 58A- 5.020(1)(h)1 and 58A- 5.024(3)(b)2. Substitutions are not recorded. Menus with recorded substitutions are not kept on file for six months. The noon meal on November 27, 1995, consisted of a cheese sandwich, chicken noodle soup, a banana, and apple juice. The meal was not on any menu. There are no menus or meal plans to meet the nutritional needs of residents requiring therapeutic diets in violation of Rule 58A-5.020(1)(c). The health plan for a resident admitted on July 13, 1995, prescribed a low fat and low cholesterol diet. Respondent maintains no meal plan or menus for this diet and has never served the therapeutic diet prescribed for this resident. Menus are not reviewed annually by a dietitian or dietetic technician in violation of Rule 58A-5.020(1)(e). No menus in the facility have been reviewed for 17 months. The door nearest the garage is a primary fire exit for residents in the south end of the facility. It can not be opened from the inside except by a person with the key to a lock installed by Respondent in violation of Rule 58A- 5.023(1). Respondent does not provide a safe, secure environment to at least one developmentally disabled resident in violation of Sections 400.428(1)(a) and Rule 58A-5.0182. The resident returned home about 4:00 a.m. one day. Respondent forced the resident to remain outside for over two hours until sunrise. The resident slept in a chair on the porch of the facility. Respondent receives state funds to provide the resident with a safe, secure environment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of the allegations at issue in this proceeding, sustaining the moratorium, and denying the renewal of Respondent's license as an ALF. RECOMMENDED this 21st day of August, 1996, in Tallahassee, Florida. DANIEL MANRY, 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 21st day of August, 1996.
