The Issue Whether the Respondent is guilty of failure to maintain good moral character, as required by Subsection 943.13(7), Florida Statutes, and whether disciplinary action should be taken as a result.
Findings Of Fact The Respondent was certified by the Petitioner on February 5, 1993, and was issued Correctional Certificate No. 134881. The Petitioner is charged with the administration of criminal justice standards and training for all law enforcement officers, corrections officers, and correctional probation officers throughout Florida, pursuant to Sections 943.085 - 943.255, and is authorized to discipline individuals licensed thereunder who violate the law. On November 28, 2002, Lake City Correctional Facility Correctional Officer Martha Escobar was approached by Inmate Aaron Smiley concerning his allegations of having fallen down the stairs the previous day as the result of his having been forced by the Respondent to carry six chairs up and down the stairs as a disciplinary measure. The alleged incident had taken place nearly 24 hours before Inmate Smiley reported it to Officer Escobar. Officer Escobar reported the statement on an incident report that she gave to her supervisor. Officer Escobar believed that Inmate Smiley was telling the truth about the incident. Inmate Smiley confirmed the facts previously stated to Officer Escobar to Captain Ruth Shaw who also completed a supervisory report. Lake City Correctional Facility Inspector Paul French interviewed numerous correctional officers under oath and prepared a written report concerning the alleged chair-carrying incident. Inspector French’s report covered the investigation of two charges: that the Respondent threatened Inmate Smiley with bodily harm if he told anyone about the alleged incident; and that the Respondent was untruthful in his responses as to what occurred during and following the alleged incident of November 27, 2002. No inmates who were listed as witnesses by Inspector French in his report were present to testify at the hearing. Officer Escobar had personally witnessed inmates carrying chairs up and down the stairs for disciplinary purposes under the Respondent’s watch in the past. Officer Escobar did not personally witness the alleged incident concerning Inmate Smiley. Officer Escobar had never reported to her supervisors in the past that inmates had been forced to carry chairs up and down the stairs for disciplinary reasons. Correctional Officer Joyce Joseph, who serves as a “mini warden” supervising the unit in which the alleged incident took place and another unit, spoke with the Respondent on one occasion about an incident involving an inmate under his watch carrying chairs up and down the stairs for disciplinary purposes. Officer Joseph neither reported the chair-carrying incident involving the Respondent to her superiors nor did she personally write-up the Respondent for the incident. Officer Joseph did not personally witness the alleged incident of November 27, 2002. Travis Smith, the Lake City Correctional Facility Recreation Director, had been told in the past by an inmate that the Respondent had ordered him to carry chairs up and down the stairs as a form of discipline. Mr. Smith never reported to his superiors the inmate’s statement that he had been disciplined by having been forced to carry chairs up and down the stairs. Mr. Smith did not personally witness the alleged incident of November 27, 2002. Captain Ruth Shaw received a report from her lieutenant, Phillip Mobley, that had been made by Officer Escobar concerning the alleged incident with Inmate Smiley on November 27, 2002. Captain Shaw has a close personal relationship with the Respondent. Captain Shaw had never witnessed the Respondent ordering inmates to carry chairs up and down the stairs as a form of discipline. Captain Shaw did not witness the alleged incident of November 27, 2002. Captain Shaw reported that Inmate Smiley told her he had tripped and fallen over chairs while carrying them up and down the stairs. Correctional Officer Maurice Gardner had previous discussions with the Respondent concerning the Respondent’s disciplining of inmates by requiring them to carry chairs up and down the stairs. Officer Gardner does not discipline inmates by having them carry chairs up and down the stairs. Officer Gardner had witnessed inmates in the past carrying chairs up and down the stairs for discipline when he came on his shift immediately following the Respondent’s shift in the correctional facility. Officer Gardner did not witness the alleged incident of November 27, 2002. Officer Gardner and the Respondent were friends when they worked together at the correctional facility. Sometimes inmates report incidents that are not true. Inspector French interviewed the Respondent once not under oath and a second time under oath. Under oath, on December 31, 2003, the Respondent stated to Inspector French that he had never ordered inmates to carry chairs up and down the stairs as a form of discipline. The Respondent was well respected at the Lake City Correctional facility prior to the alleged incident. If the Respondent had been found to have ordered inmates to carry chairs up and down the stairs as a form of discipline he most likely would have received a PSN, a “problem solving notice,” which is a mild form of discipline. The Respondent had never received a PSN or any form of discipline for having required inmates to carry chairs up and down the stairs as a form of discipline since no such incidents had ever been reported as to the Respondent in the past. The Respondent and all correctional officers at Lake City Correctional Facility had received instruction in the past about the importance of not lying under oath. The senior staff at the correctional facility instruct the correctional officers concerning how serious an infraction the Florida Department of Law Enforcement considers lying under oath. The Respondent had never been untruthful to Inspector French in the past. Sergeant Donna Murphy was aware that Officer Escobar went from cell to cell after the alleged incident of November 28, 2002, seeking statements about the incident from inmates. Inmate Smiley is a small individual who would have had a difficult time carrying six chairs up and down the stairs. Sergeant Murphy had never witnessed the Respondent requiring inmates to carry chairs up and down the stairs as a form of discipline. Sergeant Murphy did not witness the alleged incident of November 27, 2002. The Respondent believes that the witnesses who testified against him were forced to make the statements concerning his past disciplinary practices. The Respondent and Officer Escobar have experienced working relationship problems in the past. During his tenure at the Lake City Correctional Facility, the Respondent received one of the highest officer’s evaluations for 2002, and he was recommended for and completed four instructor’s courses: firearms instructor, defensive tactics instructor, instructor techniques, and chemical agents instructor. The Respondent has suffered personally as the result of losing his position at Lake City Correctional Facility. He has been forced to take a low-paying position as a youth counselor at a local community center in order to keep up with his child support payments and living expenses.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Criminal Justice Standards and Training Commission enter a final order as follows: The Respondent violated Section 837.02(1), Florida Statutes, and, as a result, failed to maintain good moral character, as required by Section 943.13(7), Florida Statutes; That his certification be suspended for two years from January 16, 2003. DONE AND ENTERED this 23rd day of February, 2004, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of February, 2004. COPIES FURNISHED: Laurie B. Binder, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302-1489 Michael A. Kelly Route 7, Box 517 Lake City, Florida 32055 Rod Caswell, Program Director Division of Criminal Justice Professionalism Services Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Michael Ramage, General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issue is whether respondent should have a $10,000 administrative fine imposed for allegedly refusing to provide emergency services and care to a person requiring emergency medical assistance.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all times relevant hereto, respondent, Lake Shore Hospital, Inc. d/b/a Lake Shore Hospital (LSH or respondent), was licensed to operate as an acute care hospital with emergency services at 560 East Franklin Street, Lake City, Florida. As a licensee, respondent is subject to the regulatory jurisdiction of petitioner, Agency for Health Care Administration (AHCA). Around 10:50 p.m. on July 16, 1993, M. N., an eighteen year old white female, arrived at the Branford, Florida emergency medical service (EMS) station requesting medical assistance. She was at full-term pregnancy and complained of abdominal and back pains. After being examined by James Aikman, a certified paramedic, she was advised to go to an emergency room. Although standard protocol called for Aikman to transport the patient to the closest hospital with an emergency room, which was Lake City Medical Center (LCMC) in Lake City, Florida, Aikman did not follow standard protocol and opted instead to carry M. N. to respondent's facility, which was also located in Lake City. He did so because he believed there was no obstetrician on duty at LCMC. While en route to the hospital, Aikman initiated radio contact with LSH emergency room personnel for the purpose of advising them of the patient's condition. However, he does not recall the name or gender of the person to whom he spoke by radio. Aikman recalls that an unidentified person in the emergency room responded with words to the effect that the LSH emergency room had no obstetrician on the staff, and that the patient should be diverted to Shands Hospital in Gainesville. Aikman recalls asking "are you refusing this patient?" and he received an "affirmative" reply. This version of events is corroborated by a contemporaneous written report prepared by Aikman on the evening of the incident. The patient was then carried without event to LCMC and was found not to be in labor. Since the incident occurred some two years ago, Aikman conceded his recollection of the events has faded. For example, he could not recall the physical appearance of the patient, including whether she was Caucasian or African-American, and he could not remember whether the patient was alone or with relatives when he provided assistance. Despite these lapses in memory, Aikman's testimony, as corroborated by his written report, is deemed to be credible and is hereby accepted in resolving this issue. Although medical professionals, including paramedics, are required to report to AHCA any incident of alleged denial of emergency medical care within thirty days of the occurrence of the incident, Aikman never reported the matter to AHCA or law enforcement authorities. His report indicates, however, that he disclosed the incident to LCMC personnel. Several months later, LCMC filed a complaint with AHCA alleging that respondent had refused to accept M. N. as a patient. State law and an agency rule require that such a complaint be filed within thirty days following its occurrence. On September 10, 1993, an AHCA registered nurse specialist, Sharon Lauter, was requested by her supervisor to conduct an investigation of the incident within five days. Thereafter, Lauter interviewed personnel at LCMC but never interviewed the emergency room staff at LSH, or otherwise advised them of the complaint. This was contrary to state law which requires that where the act under investigation is not considered to be a criminal offense, the agency is required to notify the licensee in writing of the investigation. In this case, AHCA never considered the act under investigation to be a criminal offense. Lauter did make an unannounced visit to LSH for the purpose of reviewing the emergency room policies and procedures but found no flaws in the recordkeeping or other hospital policies. On February 7, 1994, or almost five months later, Lauter prepared and forwarded a written report to the Tallahassee office for review and consideration. The report concluded that there was insufficient evidence to support the alleged denial of access to emergency medical care. After reviewing the report, in mid-March 1994 an AHCA health services and facilities consultant, Lynn Agliato, requested that Lauter conduct an additional follow-up investigation including an interview with the EMS paramedic to determine whether a violation had occurred. On July 16, 1994, or some four months later, Lauter scheduled a follow-up interview with Aikman. At no time, however, did Lauter interview LSH emergency room personnel since she believed their recollection of events would be irrelevant to her investigation. After completing her follow-up investigation, Lauter forwarded a second report to Agliato on August 1, 1994. Agliato then recommended the issuance of an administrative complaint and the imposition of a $10,000 administrative fine, which is the maximum statutory fine. Although state law requires that the agency "expeditiously investigate each complaint," the investigation of the incident consumed more than a year. On December 15, 1994, LSH received a copy of the complaint and learned for the first time that it had allegedly violated state law. Claiming that it had been prejudiced by the delay in processing the complaint, and alternatively alleging that the fine was too harsh, LSH requested a hearing to contest the charges. When a complaint is issued by AHCA against a licensed hospital for refusing to accept a patient, it always seeks to impose the maximum statutory fine, or $10,000. Since AHCA has no rules or guidelines governing the amount of fine to be assessed for the type of violation at issue here, a determination of the final penalty amount is done on a case by case basis after considering all the facts of the case. According to Agliato, in addition to any factors that may be considered under the applicable statute, the following factors are taken into account by AHCA in determining the amount of penalty in this type of case: whether death or serious injury resulted, whether the hospital has previous violations for refusing access to emergency care, and whether the hospital took any voluntary corrective measures such as providing written notice to all emergency room staff of the obligation to accept all patients in the emergency room. In this case, death or serious injury did not occur, respondent has no prior history of violations of emergency access requirements, and, immediately upon being informed of the allegation, LSH took mitigating action by issuing a policy memorandum reiterating the requirement to accept all patients at the emergency room and to refuse nobody. Under AHCA informal policy, then, there are mitigating circumstances which call for reducing the amount of, or eliminating altogether, the proposed fine. For the years 1989 through 1994, AHCA maintains an index to emergency access cases which reflects a description of the complaint and the amount of civil penalty imposed. More often than not, the civil penalty amount imposed has been less than the maximum allowable fine of $10,000. Indeed, the complaining hospital here, LCMC, was charged with two violations of the emergency access requirements in 1993 but was fined only $3,000. In some instances, hospitals charged with the same violation as was LSH were not fined but were simply required to implement a plan of correction. At the time the incident occurred, respondent had in place emergency room written policies which specifically mandated that no person will be refused emergency medical treatment regardless of ethnic, social or economic status. As to obstetric patients, its policy provided that any obstetric patient presenting to the emergency room would be evaluated by a physician, and if in labor, would be given the highest classification of seriousness for emergency patients, "emergent, Level V." Immediately after receiving the administrative complaint, the medical director issued a memorandum to all members of the emergency room staff reiterating the hospital's policy of compliance with requirements for access to emergency care. Respondent contends it was substantially prejudiced due to AHCA's delay in investigating and prosecuting this case. Specifically, LSH alleges that because of this delay, and AHCA's failure to timely advise it of the charges, it was deprived of the opportunity to conduct its own timely investigation. Further, it alleges that those personnel on duty on the evening of July 16, 1993, have no current recollection of the events which occurred that evening. Not surprisingly, at final hearing, each of the persons on duty that evening testified they could not recall the specific incident. They uniformly agreed that such a refusal to provide emergency access would be contrary to the hospital's policy. The personnel acknowledged that in some cases the paramedic would be told that LSH had no obstetrician on staff, but rather than refusing access, they would simply advise the paramedic of the hospital's capabilities. Even so, the contemporaneous report of the paramedic (and his testimony) is deemed to be the most credible evidence on this issue. Indeed, there is no evidence to suggest that paramedic Aikman was anything more than a disinterested witness or that he had reason to fabricate his report. Accordingly, there was no prejudice caused by LSH's inability to conduct a timely investigation of the incident.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order assessing respondent an administrative fine of $1,000.00 for violating Subsection 395.1041(3), Florida Statutes. DONE and ENTERED this 19th day of June, 1995, at Tallahassee, Florida. DONALD R. ALEXANDER 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 19th day of June, 1995. APPENDIX Petitioner: Partially accepted in finding of fact 1. Partially accepted in finding of fact 2. Partially accepted in findings of fact 2 and 3. 4-8. Partially accepted in finding of fact 4. Partially accepted in finding of fact 6. Partially accepted in finding of fact 4. Partially accepted in finding of fact 7. Respondent: Partially accepted in finding of fact 1. Covered in preliminary statement. 3. Partially accepted in finding of fact 2. 4. Partially accepted in finding of fact 5. 5. Partially accepted in finding of fact 4. 6-7. Partially accepted in finding of fact 5. 8-9. Partially accepted in finding of fact 4. 10. Partially accepted in finding of fact 3. Partially accepted in findings of fact 3 and 4. Partially accepted in finding of fact 3. Rejected as being unnecessary. 14-15. Partially accepted in finding of fact 6. 16-18. Partially accepted in finding of fact 7. 19-21. Partially accepted in finding of fact 5. Partially accepted in finding of fact 8. Rejected as being unnecessary. 24-25. Partially accepted in finding of fact 9. 26-27. Partially accepted in finding of fact 10. Partially accepted in finding of fact 11. Partially accepted in finding of fact 12. Partially accepted in findings of fact 7-11. 31-32. Covered in preliminary statement. 33-34. Partially accepted in finding of fact 17. 35-36. Rejected as being unnecessary. Partially accepted in finding of fact 18. Partially accepted in finding of fact 20. 39. Covered in preliminary statement. 40-42. Partially accepted in finding of fact 20. 43. Partially accepted in finding of fact 11. 44. Partially accepted in finding of fact 13. 45. Partially accepted in finding of fact 14. 46. Partially accepted in finding of fact 15. 47-48. Partially accepted in finding of fact 16. 49. Partially accepted in finding of fact 15. Note - Where a proposed finding has been partially accepted, the remainder has been rejected as being irrelevant, unnecessary to a resolution of the issues, not supported by the evidence, cumulative, or a conclusion of law. COPIES FURNISHED TO: Thomas W. Caufman, Esquire 7827 North Dale Mabry Highway Suite 100 Tampa, FL 33614-3222 Geoffrey D. Smith, Esquire Post Office Box 11068 Tallahassee, FL 32302-3068 R. S. Power, Agency Clerk Agency for Health Care Administration 325 John Knox Road, Suite 301 Tallahassee, FL 32303 Jerome W. Hoffman, Esquire Agency for Health Care Administration 325 John Knox Road, Suite 301 Tallahassee, FL 32303
The Issue Whether Respondent, Department of Corrections, discriminated against Petitioner, Charlotte Pinkerton, on the basis of her age, race, disability, or in retaliation, and, if so, what remedy should be ordered.
Findings Of Fact Respondent is the state agency whose purpose is to protect the public through the incarceration and supervision of offenders, and to rehabilitate offenders through the application of work programs and services. See § 20.315, Fla. Stat. Respondent employs more than 15 persons. Stipulated Facts Petitioner was hired by Respondent and employed at Lake Correctional Institution (Lake C.I.) as a senior registered nurse (RN), OPS2/ employee, effective October 29, 2010. On October 14, 2011, Petitioner was promoted to senior RN, career service employee, at Lake C.I. Petitioner resigned from employment with Respondent at Lake C.I. on February 1, 2013, effective February 15, 2013. Age and Race Petitioner is a 67-year-old Caucasian female. Petitioner was 63 years old when she started work at Lake C.I. There was no evidence presented that a new employee or employees were hired to replace Petitioner. Disability At hearing, Petitioner provided a February 7, 1990, letter from Gene Watson, Ph.D., of The Learning Place, which reflected Petitioner had a diagnosis of developmental dyslexia. Petitioner’s claim that this February 7 letter was attached to her employment application cannot serve as a blanket notification to everyone working for Respondent or Lake C.I. Petitioner admitted she had dyslexia and declared “I can do my job.” Although Petitioner’s former supervisor, senior RN Lou Armentrout, testified she was aware of Petitioner’s dyslexia, the exact timing of this knowledge was not disclosed. Ms. Armentrout also testified that Petitioner did not need an accommodation to perform her nursing duties. Petitioner’s statement that “they knew of my disability” is insufficient to substantiate that fact. Warden Folsom and Dr. Mesa were not employed at Lake C.I. when Petitioner was hired to work there, and they were unaware of Petitioner’s disability. Retaliation Background Prior to the arrival of Dr. Mesa at Lake C.I., Petitioner worked under the direction of the Chief Health Officer (CHO). Petitioner did anything she could to assist the prior CHOs (Dr. Meredith or Dr. Marino). Petitioner worked as a floor nurse and would sometimes be the charge nurse. Petitioner worked in the medical building at Lake C.I. Petitioner’s immediate supervisor was Ms. Armentrout. Petitioner’s six-month performance planning and evaluation by Ms. Armentrout, dated April 16, 2012, reflected a rating of 3.36 on a 5.0 scale. In September 2012, Ms. Armentrout left Lake C.I. Between August 2012 and October 2013,3/ Dr. Mesa served as Respondent’s CHO at Lake C.I. As the CHO, Dr. Mesa oversaw everything in the medical section regarding inmate patient care and services. There are two medical buildings at Lake C.I.: one houses those inmates needing medical care; and a second building houses other inmates needing mental health services. Dr. Mesa would usually start her work day in the medical building and then go to the second building. On a daily basis, Dr. Mesa would treat inmate patients, write orders, interact with staff, attend meetings, and administer Lake C.I.’s entire medical section. Dr. Mesa is a Spanish-speaking female physician who talks with her hands as she speaks. At the start of Dr. Mesa’s tenure at Lake C.I., Petitioner was on light duty as a result of an injured foot. It is believable that Dr. Mesa gave Petitioner orders or directives to do certain tasks which Dr. Mesa believed were within the light duty category. Petitioner contends that she discussed the tasks requested by Dr. Mesa with Respondent’s human resource office, and Dr. Mesa’s requests were found to be outside the light duty category. There was no evidence to support or contradict Petitioner’s discussion with Respondent’s human resource office, and it was hearsay as to what she was told. As the CHO, Dr. Mesa could ask or direct Petitioner to perform medically related tasks. Retaliation In late November 2012, Petitioner claimed she reported to Warden Folsom problems regarding Dr. Mesa’s continued verbal abuse towards Petitioner, medical staffing issues including long work-breaks, and missing medical supplies and equipment. Warden Folsom does not recall this November meeting with Petitioner, and there was no investigation conducted in late November or December regarding Petitioner’s allegations. After reporting the irregularities in the medical section, Petitioner felt Dr. Mesa increased her verbal abuse towards Petitioner. Petitioner felt she was being retaliated against and tortured by Dr. Mesa. Petitioner deemed the abuse to be a hostile work environment, yet she did not report it again until February. Petitioner testified that Assistant Warden Young spoke with her several days after the alleged November meeting with Warden Folsom, and reminded her that she needed “to follow the chain of command.” Assistant Warden Young failed to provide any insight into this meeting, claiming that he did not recall talking with Petitioner about following the chain of command. Petitioner believed that Dr. Mesa had the ability to fire her, and Petitioner remained in constant fear of Dr. Mesa. Petitioner felt Dr. Mesa belittled and humiliated her in front of prisoners and other nurses. Petitioner believed that Dr. Mesa intentionally spoke Spanish to other nurses when Petitioner was present.4/ Petitioner believed that Dr. Mesa hated white people, and black people who defended white people. During one interaction between Petitioner and Dr. Mesa, Dr. Mesa stuck her finger between Petitioner’s eyeballs; however, the exact verbal exchange that led to that encounter remains unclear. Dr. Mesa denied making fun of Petitioner or intentionally giving medical orders to nurses in Spanish, when Petitioner was present. However, Dr. Mesa conceded it was possible that she did so, as Spanish is her first language. Dr. Mesa denied ever intentionally putting her finger on Petitioner. Dr. Mesa supervised Ms. Armentrout and her replacement, nurse Isabga, but claimed not to supervise Petitioner. As the CHO in charge of the health care for inmates, it is logical that the CHO would have supervisory duties over all the health care workers, maybe not directly, but certainly through the chain of command. When Dr. Mesa gave or wrote a medical order, she expected a high level of performance from the Lake C.I. staff. Ms. Gadacz, who worked with Petitioner at Lake C.I., did not know Petitioner had a disability. Ms. Gadacz witnessed Dr. Mesa yelling at different times to different people, including Petitioner; but Ms. Gadacz did not believe it was motivated by anyone’s race or age. Although Ms. Gadacz witnessed Dr. Mesa putting her finger on Petitioner’s face, she could not explain the circumstances. Licensed Practical Nurse Theresa Williams worked with Petitioner at Lake C.I. At various times, Ms. Williams observed Dr. Mesa’s interactions with Petitioner, which she deemed to be less than professional. During at least one meeting, with six or seven employees present, Dr. Mesa addressed everyone but Petitioner with respect. When Respondent began the investigation of Petitioner’s complaint (after Petitioner’s resignation), Ms. Williams was interviewed and provided her observations of Dr. Mesa’s treatment of Petitioner. Petitioner’s Resignation On February 1, 2013, Petitioner requested a meeting with Warden Folsom. During this meeting Petitioner initially expressed her desire that nothing be done about what she was going to tell the Warden. Petitioner expressed her frustrations with Dr. Mesa’s verbal abuse and discrimination. At that meeting, Petitioner gave Warden Folsom a resignation letter. The letter provided: I would like to inform you that I am resigning from my position as Senior Register [sic] Nurse for Lake Correction Institution, effective February 15, 2013. Thank you for the opportunities for professional and personal development that you have provided me during the last 28 months. I have enjoyed working for the agency and appreciate the support provided me during my tenure with the Institution. If I can be of any help during this transition, please let me know. Sincerely, [signature] Ms. Charlotte Pinkerton Senior Register [sic] Nurse Warden Folsom was surprised that Petitioner was resigning and provided her with the opportunity to continue to work for Respondent. However, when Petitioner used the phrase “hostile work environment,” Warden Folsom instituted Respondent’s procedures to have the allegation investigated. Dr. Mesa participated in Respondent’s Inspector General’s investigation that ensued after Petitioner left Lake C.I., but couldn’t recall the details. Further, Dr. Mesa testified repeatedly that she did not recall having conversations with other Lake C.I. personnel regarding Petitioner or others. There is evidence that Petitioner and Dr. Mesa do not care for one another; however, the evidence necessary to prove any discrimination is lacking. Following her resignation, Petitioner has attempted to obtain another RN position, but has been unsuccessful. In December 2013, Petitioner sustained an injury which has precluded her from continuing to seek employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner’s Petition for Relief from an unlawful employment action be dismissed. DONE AND ENTERED this 4th day of March, 2015, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 4th day of March, 2015.
Findings Of Fact Background At all times relevant hereto, petitioner, 45th Street Mental Health Center, Inc. (petitioner or MHCI), was a nonprofit corporation providing community mental health and alcoholic services to various clientele in Palm Beach County, Florida. Petitioner's principal facilities are located at 1041 45th Street, West Palm Beach, Florida. Under the legislative scheme established in 1982, respondent, Department of Health and Rehabilitative Services (HRS), contracted with various district mental health boards throughout the state to provide mental health services to local communities. 1/ The district mental health boards in turn entered into contracts with various subcontractors throughout their respective districts to provide the necessary services. In this proceeding, Mental Health Board No. 9, Inc. was the primary provider in the West Palm Beach district. On September 30, 1982 petitioner and Mental Health Board No. 9, Inc. executed a written one-year contract wherein petitioner generally agreed to provide certain community health services under the Community Mental Health and Alcoholism Programs. 2/ In return, MHCI would be reimbursed for 75 percent of its costs for mental health services rendered to clients in accordance with applicable rules, statutes and regulations. That contract has been received in evidence as petitioner's exhibit 1. Although the district board executed the contract, its terms and conditions were dictated by HRS. Accordingly, HRS may be considered to be the draftsman of the contract. When the contract was executed, MHCI was known as the Palm Beach County Comprehensive Community Mental Health Center, Inc. In early 1983 it changed to its present name. Under paragraphs I.C.6. and 7. and III.D. of the contract, MHCI agreed to the following terms and conditions: To comply with Florida Statutes 394, 396 and Florida Administrative Code, Chapters 10E-3, 10E-4, 10E-5 and Legislative Provision for FY 82-83 (Attachment #11). To comply with all other State standards, provided they are specified in Statute or Administrative Rules, or are incorporated as part of this Agreement. * * * D. Any alterations, variations, modifications, and waivers of provisions of this contract shall be valid only when they have been reduced to writing, duly signed by all parties to the contract, approved by the Board and DHRS District Administrator, and attached to the original contract. Finally, paragraph III.C. allowed either party to terminate the contract, with or without cause, upon "no less than thirty (30) days' notice in writing to the other party." When the contract was executed, Chapter 10E-4, Florida Administrative Code, was in effect. That chapter authorized a provider to utilize available matching funds from other providers within the district to offset any audit pay back liability determined by HRS. In other words, one subcontractor within a district could offset any deficiency in expenditures with an excess of expenditures or matching funds by another subcontractor within the same district. Thus, the thirteen subcontractors could consolidate their deficiencies on a district wide basis, and apply any left over excess funds to offset that deficiency. This concept is more commonly referred to as "district wide match" and was embodied in Chapter 10E-4. During the 1982 legislative session the Legislature amended Chapter 394, effective October 1, 1982. Among other things, the new law required HRS to prepare a line-item budget for presentation to the Legislature. Its purpose was to provide more accountability on the part of providers. Since Chapter 10E 4 did not require line item budgets, HRS interpreted the new law to no longer allow reimbursement for mental health services under Chapter 10E-4. Therefore, HRS promulgated an emergency rule which became effective on October 1, 1982. It expired ninety days later, or around January 1, 1983. HRS then adopted new Chapter 10E-14, Florida Administrative Code, which became effective on February 23, 1983. Among other things, it required providers to itemize their entire operating budgets. To be reimbursed for program services, a provider had to comply with the new rules. Of particular significance was new Rule 10E 14.03(7) which specifically eliminated the district wide matching concept. 3/ Although various amendments to the contract were executed by MHCI and the district board throughout the year, none made specific reference to the change in rules which occurred during the life of the contract. One amendment executed on October 1, 1982 did require the district board to furnish the provider with copies of any changes in HRS rules that affected MHCI within thirty days after the board received the same from HRS. 4/ Whether copies of the emergency rule and Chapter 10E-14 were provided to MHCI was not disclosed. However, MHCI acknowledged it was aware of such rules, and that they materially altered the method of reimbursement from HRS. Indeed, MHCI would have had to modify its budget requests submitted to HRS after October 1, 1982 in order to establish eligibility for reimbursement under the new reimbursement rules. MHCI also acknowledged that it was aware of the change in substantive law (Chapter 394) when the contract was signed. Even so, MHCI took the position at final hearing that it relied upon the belief that Chapter 10E-4 rules applied during the entire contract year. Conversely, HRS took the position at final hearing that no reference to the new rules was necessary since the contract automatically was covered by any new rules adopted after the contract was executed. In actuality, the issue was never raised by either party until 1984 or 1985 when both recognized that it played a major role in determining petitioner's audit liability. The Agency Audit In 1984, respondent undertook an audit of all subcontractors who provided services during the year ending June 30, 1983 under contract with Mental Health Board No. 9, Inc. Between July and September, 1984 HRS field auditors focused their attention on petitioner's books and records to determine whether petitioner's reimbursements from the district board (and ultimately HRS) for program services during the fiscal year in question were justified. Under the terms of its contract, petitioner was subject to such an audit on an annual basis. As a guide to determining the reasonableness of various expenditures, the auditors used Office of Management and Budget Circular A-122 (OMB A-122), a federal publication which contains cost principles for nonprofit organizations. Of particular relevance are subparagraphs A. 2., 3. and 4. of Attachment A of OMB A-122. They provide in relevant part: Factors affecting allowability of costs. To be allowable under an award costs must meet the following general criteria: g. Be adequately documented. * * * Reasonable Costs. A cost is reasonable if, in its nature or amount, it does not exceed that which would be incurred by a prudent person under the circumstances prevailing at the time the decision was made to incur the costs .... In determining the reasonableness of a given cost, consideration should be given to: Whether the cost is of a type generally recognized as ordinary and necessary for the operation of the organization or the performance of the award. The restraints or requirements imposed by such factors as generally accepted sound business practices, arms length bargaining .... * * * Allocable Costs. a. A cost is allocable to a particular cost objective, such as a grant, project, service, or other activity in accordance with the relative benefits received... * * * These same principles have been codified in Rule 10E-14.17(2)(c) and (d), Florida Administrative Code. Former Rule 10E-4.17(4)(f)(3), Florida Administrative Code, since repealed, provided that "compensation for employees is allowable up to the maximum for comparable positions listed in the Florida Career Service Plan". Despite its repeal, HRS has continued the practice of comparing a provider's employee benefits to career service benefits on the ground the state should not purchase a service at a cost greater than that incurred if the state were to provide the service itself. This measure of reasonableness was utilized by HRS auditors in this case in determining the reasonableness of certain expenditures. The use of said policy was not seriously questioned. 5/ The provider (MHCI) uses a September 30 fiscal year. HRS programs are funded, and audits accordingly made, using a June 30 fiscal year. Because of this "mismatch", HRS auditors extrapolated nine months data (October 1982 through June 1983) from one fiscal year's data plus three months from another fiscal year (July through September 1982) to give it a full twelve months of data toe review. Such data was taken from two sets of MHCI's financial statements prepared by its outside auditors. Normally, an HRS audit case is not unusually complicated and involves only the usual disputed adjustments. However, several factors have changed this case into a most complex matter. First, HRS adopted new rules (an emergency rule and then Chapter 10E-14) governing community alcohol, drug abuse and mental health funds beginning in the second quarter of the fiscal year. Had no change occurred, petitioner would have no audit pay back liability. But, HRS seeks to apply the new rules to the latter three-fourths of the fiscal year and the old rules to the first quarter. By doing so, difficult allocation and legal problems arise. Secondly, mental health audits involve a confusing set of financial compliance statements and terminology. For example, the term "unallowable expenditures" suggests just that--an improper expenditure by a provider that must be repaid to HRS. But in this case, unallowable expenditures during the first quarter do not create a liability while those in quarters two, three and four do. Moreover, audited statements of compliance prepared to show operating results during the fiscal year are markedly different from conventional financial statements. Indeed, many items on the statements could not be fully explained by even the accountants who used them. Third, HRS chose to apply a new methodology for determining audit liability which is not referred to in any rule or statute. The method basically computes the deficiency in two different ways, and assesses the liability based on the lower of the two figures. Fourth, the provider participates in a number of different programs, some of which are funded by various federal and state grants and programs, and some from private sources. The audit here covers only the community mental health, alcoholism and Bakers Act programs. Consequently, the question arises as to whether any of the disallowed expenditures should be allocated to other grants and programs, and if so, how much. Finally, petitioner has raised the broad issue of whether Medicaid funds are a "fee for service" or a "grant dollar". If it is a fee for service, petitioner does not have to provide 25 percent local matching dollars for its Medicaid fees earned or received during the fiscal year. If it is a grant dollar, petitioner must match those Medicaid dollars received with local funds, or be subject to a pay back liability. If petitioner prevails on this issue, its pay back liability is only reduced by $990. However, resolution of the issue has far greater implications on future audits of petitioner, and other providers, and it presumably has been raised for that purpose. As a result of the audit, HRS proposed to disallow certain expenditures incurred by MHCI during the twelve months ending June 30, 1983. The disputed items include insurance expense, interest expense, certain annual leave expenses of various employees required under the provider's union contract, severance pay given to a former executive director, a small portion of the executive director's salary and benefits, and expenses related to a settlement paid to a discharged executive director. In addition, HRS proposed that Medicaid fees not be deducted from funds requiring local match contributions. In all, the pertinent disputed adjustments amounted to $69,875. They are based upon the field audit and were incorporated into an audit report issued by HRS on October 18, 1985. In determining the potential liability of petitioner, HRS proposed to base any audit liability upon the lower of controllable-unallowable expenditures or any deficiency in expenditures or matching funds. 6/ Therefore, it computed the total unallowed expenditures and the deficiency due to a lack of matching funds, and compared the two. In this case unallowables amounted to $69,875, which was lower than the $178,905 deficiency due to a lack of matching funds. This comparative methodology was developed unknown Tallahassee "supervisors" ostensibly to comply with the changes in Chapter 394 which became effective on October 1, 1982. However, HRS representatives could cite no rule or statute which specifically authorized its use. 7/ Adjustments in Question Computation Of First Quarter Expenses Petitioner questions the manner in which the agency calculated its first quarter expenditures in three respects. The issue arises because a change in HRS rules occurred midway through petitioner's fiscal year. First, petitioner contends that HRS did not follow procedures outlined in an agency memorandum containing instructions on how to make allocations of expenditures incurred under both the new and old rules. Secondly, it contends an interest expense adjustment was erroneously computed. Finally, it asserts that disallowed health insurance expenditures were overstated. Because Chapter 10E-14 was adopted midway through the fiscal year of many providers, and created allocation problems, HRS' audit services administrator, Roy J. McCaslin, issued a memorandum on July 11, 1984 setting forth certain procedures to be followed by HRS auditors when auditing mental health and alcohol programs administered by district mental health boards for fiscal years ending June 30, 1983 and 1984. The memorandum read in relevant part as follows: Audits of mental health and alcohol programs administered by District Mental Health Boards of FYE's 6/30/83 and 6/30/84 will treat liabilities and match as follows: Department funding in excess of total expenditures is a priority liability not subject to pooling of match. Liabilities created by unallowable expenditures when match is not met are priority liabilities not subject to pooling of match. Potential liabilities due to shortage of match may be reduced through the pooling of excess match available within the Board District. The attached examples show the application of these procedures. For FYE 6/30/83, these procedures will apply to the period 10/1/82 through 6/30/83. The first three months will be treated under the old rules. Except for unallowable costs such as interest, we should attempt to simply split expenditures and revenues 3:9. There will be no need to perform any allocations where the provider has sufficient match for the year. Stated in more understandable language, the memorandum basically instructed HRS auditors to apply the 10E-14 procedures to the 1982-83 fiscal year except for the first quarter when Chapter 10E-4 procedures, including the district wide match, would apply. Therefore, it required that nonallowable expenditures relating to the first quarter be removed. 8/ After conducting their audit, HRS auditors proposed to disallow $93,193 in unallowable expenditures. However they reduced this amount by 25 percent to remove that portion which related to the first quarter. This resulted in a pay back liability of $69,895. But under then-existing matching principles for funding the programs, HRS and petitioner participated on a 75:25 basis, with petitioner supplying 25 percent of total expenditures. Therefore, petitioner was under no obligation to repay the portion of unallowable expenditures representing local match. Because HRS failed to remove the local match from unallowable expenditures, that amount should be further reduced by 25 percent. 9/ Under the old rules, interest expense was not allowed. HRS accordingly determined interest expense for the entire fiscal year and removed 25 percent of that amount on the theory this represented the appropriate amount attributable to the first quarter. This was consistent with the McCaslin memorandum which directed that unallowable expenditures related to first quarter activities be removed. However, petitioner has correctly pointed out that the note on which the interest in question accrued pertained wholly to the first quarter. As such, all interest relating to the note was unallowable and should have been removed. Although HRS contended otherwise, its auditor did not know the origin of the interest, and petitioner's testimony that it occurred during the first quarter is more credible and persuasive. Therefore, petitioner's suggestion that the HRS adjustment be further reduced by 75 percent is appropriate, and should be made. 10/ HRS has proposed to disallow certain health insurance costs, and in doing so, assumed that they were incurred ratably over the entire fiscal year. Therefore, it first calculated allowable expenditures for the year, and deducted that amount from total insurance costs. It then applied a 70.6 percent factor to that amount, which represented that portion relating to community mental health programs, and proposes to disallow the resulting amount. But health insurance costs were not incurred ratably over the year and therefore HRS' calculation did not assign the appropriate percentage of health insurance costs to the first quarter. Therefore, an adjustment should be made to remove excess first quarter insurance costs in a manner consistent with the schedule found on page 2 of petitioner's exhibit 10. Allocation Of Expenses To Other Grants And Programs In addition to providing mental health and alcoholism services during the fiscal year in question, petitioner also provided services funded by other federal and state grants and programs. In its audit report, HRS failed to allocate any portion of unallowable expenditures relating to the last three quarters of the fiscal year to other grants and programs even though it had made a similar allocation in an audit of another subcontractor in the same district. HRS did not do so here because, unlike the other subcontractor, when the audit was made its auditors could not separate petitioner's income and expenses between the various grants and programs. Instead, HRS merely identified inpatient and outpatient costs, and assigned the applicable portion of disallowed expenditures to each. This resulted in assigning 100 percent of all disallowed expenditures to the three audited programs. At final hearing petitioner demonstrated without contradiction that 12.2 percent of all general expenditures related to other grants and programs. Therefore, it is appropriate to allocate 12.2 percent of all disallowed expenditures to other grants and programs. Such an adjustment is consistent with paragraph A.4.a. of Attachment A of OMB A-122 which requires that costs be allocable to grants in accordance with the benefits received. Executive Director's Salary Using the previously established policy of comparing provider employee benefits with those granted to career services employees, HRS's then district supervisor of field auditors reviewed the salary of MHCI's executive director. Finding no executive director position listed in the Career Service Plan, he made reference to pay grade 27 of the state career service job classifications, and concluded that an executive director was comparable to that pay grade. He accordingly reduced the executive director's salary to make it compatible with pay grade 27. That individual no longer works at HRS, and his successor, who testified at final hearing, gave no rationale for using that pay grade other than to say it was done by his former supervisor. After criticizing HRS's salary comparison policy, MHCI equated an executive director to a senior management position (administrative services director II) in state government and found no adjustment to salary necessary. It further contended the salary was reasonable given the size of the facility and the responsibilities of the employee. In view of the lack of any basis to utilize pay grade 27, or any other persuasive evidence that the salary was excessive, it is found the executive director's salary was reasonable, and that MHCI should be reimbursed for the entire amount. Severance Pay During the audited fiscal year one of many former executive directors of MHCI (Joseph Amato) terminated employment to take a job at a mental health center in Belle Glade. Amato had worked less than a year in the position when he left MHCI. Even so, the board of directors authorized severance pay to Amato. HRS auditors disallowed this payment on the grounds severance pay is not customary, that it constituted a bonus to the employee, and was unreasonable under the circumstances since Amato had another position waiting for him. Petitioner did not seriously dispute the agency's findings, but simply argued that if Chapter 10E-4 applied, disallowance was improper, or in the alternative, that it should be reduced by 37.2 percent, which factor is derived from the adjustments proposed by petitioner in findings of fact 16 and 19. The undersigned has previously found those adjustments to be appropriate, and accordingly the severance pay adjustment should be reduced by 37.2 percent. Settlement With Former Employee When another former executive director (Patrick Holland) was dismissed by MHCI in mid-1981, Holland filed a $250,000 lawsuit against his former employer. The suit was ultimately settled by the parties for $18,000 on September 15, 1982, and a portion of the settlement was charged to the audited fiscal year expenses. HRS proposes to disallow this expense on the theory there was insufficient documentation given to the field auditors to justify the settlement, and because it was "unreasonable" in amount and was "unnecessary". During the audit itself, only a copy of the court order approving the settlement was given to the auditors. Through testimony MHCI characterized the settlement expense as a very common expenditure for a business and one that is both reasonable and prudent. This was not credibly contradicted. Upon advice of counsel, and having weighed the cost of litigating the suit and its potential exposure, MHCI elected to settle the suit for $18,000. Since the expense was ordinary and necessary, and the result of arms-length bargaining, the expenditure is consistent with OMB Circular A-I 22 and should be allowed. Annual And Sick Leave During the audited fiscal year, many of MHCI's employees were represented by the United Food and Commercial Workers Union. Its annual and sick leave policy for employees was accordingly dictated by a union contract which expired on October 1, 1982. Although the provider had been audited every year since 1971-72, HRS had never before proposed to disallow annual leave expenses since the excess was "immaterial". However, in this audit HRS auditors again compared provider leave benefits with those allowed state employees and proposed to disallow the excess. MHCI contended it was bound by a union contract and had no choice except to honor the agreement. It further contended the contract was an arms- length transaction. However, its present executive director conceded the contract was generous, and that after it expired, he negotiated a new contract with less liberal leave provisions. Therefore, it is found the disallowance of such benefits was appropriate. However, it should be reduced by 37.2 percent to conform with the adjustments approved in findings of fact 16 and 19. Other Adjustments After making the foregoing adjustments, the resulting unallowable expenditures should be multiplied by 75 percent to determine the portion funded by HRS. This is necessary because of the funding ratio of 75:25 prescribed by law. Medicaid Adjustment Most of the testimony at hearing, and much of the post hearing arguments of counsel, were devoted to the Medicaid issue raised by petitioner. If resolved in petitioner's favor, it will reduce its pay back liability by only $990. Obviously, petitioner's chief concern is the effect a favorable ruling will have on future audits. The issue is complicated, but in simplest terms, involves the question of whether Medicaid is a "fee for service" or a "grant dollar". If it is treated as a fee for service, as petitioner urges, then petitioner does not have to provide 25 percent local matching funds for Medicaid dollars received from the State. If it is a grant dollar, as HRS now treats it, petitioner must obtain local matching funds in order to retain its Medicaid reimbursements. 11/ In other words, Medicaid dollars from HRS must be matched by the provider from local funds on a 75:25 basis, or else they are treated for audit purposes an an unallowable expenditure and therefore are subject to repayment. The problem arises whenever the provider cannot obtain sufficient contributions from private sources, or the local county government refuses to appropriate funds to meet the 25 percent local match. The provider is then forced to reimburse HRS for unmatched Medicaid funds previously advanced. It is for this reason that petitioner disputes the manner in which HRS has treated Medicaid funds. By way of background, the State of Florida is a participant in the federal Medicaid Plan. The plan basically provides medical aid for the indigent. Under the plan, which is a formula grant, the federal government pays participating states a percentage share of their expenditures for services rendered. In the case of Florida, it receives 56 cents for every dollar expended in providing services. In order to participate, a state must file an approved plan with the federal Department of Health and Human Services (HHS). In the case of Florida, HRS, through its Medicaid Program Office, has filed a "state plan" with HHS which details the method of reimbursement to local providers such as nursing homes, hospitals and clinics. The plan is considered to be a contract between the state and federal government and provides a broad outline of what the state is required to do. Among other things, the plan provided that the state shall reimburse mental health centers and clinics on a fee for service basis during the fiscal year in question. This was confirmed by testimony from a HHS section chief. HRS acknowledged that the state plan provides that Medicaid be treated as a fee for service, but asserted that this was included in the plan only because HHS requires it for purposes of computing the federal rate of payment. However, there is no prohibition against HRS utilizing a different method for calculating the rate of payment to local providers. In this regard, HHS has never cited HRS for violating the terms of the state plan even though HRS treats Medicaid funds as a grant dollar in the reimbursement process. If such a violation of the plan has indeed occurred, it is the federal government that has the responsibility of making that determination. There is extensive testimony concerning interpretation of HRS rules and general law on the disputed matter, as well as the sub-issues of whether a provider actually "earns" a Medicaid dollar if no match occurs, whether a provider can be over reimbursed if Medicaid is treated as a fee, and whether HRS' position results in a less efficient and more costly delivery of services by the provider. The undersigned has accepted the testimony of the agency to be more credible and persuasive, and it is accordingly found that HRS properly treated Medicaid funds as a grant dollar, and that no adjustment is required.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that petitioner's audit liability for the fiscal year ending June 30, 1983 be modified from that proposed by respondent consistent with the adjustments approved in the findings of fact portion of this order. DONE AND ORDERED this 23rd day of October, 1986, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 1986.
The Issue In his charge of discrimination and petition for relief, Petitioner alleges that Respondent violated Section 760.10, Florida Statutes, by terminating him and discriminating against him on account of his race. The issue in this proceeding is whether that violation occurred. Respondent's motion to dismiss also raises a threshold issue as to the timeliness of Ernest Arnold's petition for relief.
Findings Of Fact Ernest Arnold, a black male, was hired in mid-1988 as a general kitchen worker, "Other Personal Service" (OPS), at the Orlando Regional Juvenile Detention Center, a facility operated by the Department of Health and Rehabilitative Services (HRS). He was terminated on June 8, 1989 due to unacceptable attendance. In July, 1989 the agency rehired Mr. Arnold as a Detention Care Worker II, a regular career service position, at Hilltop, another residential treatment center for juveniles. The facility closed in December, 1989, and Mr. Arnold was transferred back to the Orlando Regional Juvenile Detention Center. His immediate supervisor was Marie Fleming, a black female. On February 7, 1990, Marie Fleming conducted an employee-supervisor conference with the Petitioner. During this conference, the appropriate use of sick leave and the importance and necessity of reporting to work on time were subjects that were discussed with the Petitioner. The Petitioner refused to sign the employee-supervisor conference sheet. The Petitioner utilized sick leave on February 16 and 17 and submitted medical documentation for this sickness (Petitioner's exhibit #1). The documentation was a form from Orlando Regional Medical Center emergency room prescribing medication for back pain and chest pain and indicating he could return to work on February 18. On February 22, 1990, the Petitioner was terminated from his Detention Care Worker II position due to his excessive use of sick leave and leave without pay during his probationary status. According to the Employee Handbook, "Employees who have not attained permanent status in the Career Service System may be dismissed for the first occurrence of an offense or deficiency (Page 28, Respondent's exhibit #5). On Page 29 of the handbook, excessive absence is defined as: "An attendance record of recurring absences even though all or a majority of the absences were necessary and/or excused. This also includes a pattern of absences by an employee, such as consistent absences on the day preceding or following the employee's regular days off or absence on the same day of each week or month." The Petitioner received a copy of the Employee Handbook on July 17, 1989. The Petitioner's time sheets from July 20, 1989 through March 1, 1990 (Respondent's exhibit #3) indicate the following: Date Type of Leave Amount Taken 08-10-89 Leave Without Pay 1 hour 08-13-89 Leave Without Pay 8 hours 08-14-89 Leave Without Pay 8 hours 08-17-89 Leave Without Pay 8 hours 08-31-89 Leave Without Pay 2 hours 09-08-89 Leave Without Pay 30 minutes 09-10-89 Leave Without Pay 30 minutes 09-12-89 Leave Without Pay 1 hour 09-30-89 Leave Without Pay 15 minutes 10-07-89 Leave Without Pay 15 minutes 10-08-89 Sick Leave 8 hours 10-15-89 Leave Without Pay 15 minutes 10-18-89 Leave Without Pay 30 minutes 10-21-89 Leave Without Pay 15 minutes 12-14-89 Late 6 minutes 12-21-89 Sick Leave 8 hours 12-26-89 Late 15 minutes 12-30-89 Sick Leave 8 hours 01-11-90 Late 15 minutes 01-25-90 Sick Leave 3 hours 02-16-90 Sick Leave 8 hours 02-17-90 Sick Leave 8 hours Petitioner acknowledged those absences and also acknowledged that it was important in a juvenile residential facility to have employees present during their shifts. Last minute notices of absence would require other staff to have to cover the shift by working overtime. Several of Ernest Arnold's leave times were in conjunction with regular days off, causing a concern by his supervisor that he was abusing leave privileges. Ernest Arnold feels that his termination was due to a "vendetta" but he did not describe that vendetta or ascribe any motive or particular responsible individual or group. He claims that other employees were given more favorable treatment and named one individual, Sarah Burch, a white female, who was absent for several days, brought a medical excuse and was not terminated. Mr. Arnold produced no evidence of the more favorable treatment and bases his claim on gossip among the employees at the detention center. Ms. Fleming never supervised Ms. Burch and is unfamiliar with her employment history. Mr. Arnold was rehired by the agency on November 17, 1990. Less than two weeks later, Ms. Fleming was required to evaluate his performance. She rated him "achieves" performance standards in every category, including compliance with attendance and leave. The evaluation notes that she had not been able to observe the employee's recent performance for an adequate amount of time upon his return. After Mr. Arnold filed his complaint of racial discrimination with the Florida Commission on Human Relations (FCHR), and after that agency made its "no cause" determination, he was given a deadline to file either a request for redetermination or a request for hearing/petition for relief. In a letter dated March 6, 1992 from the Executive Director of FCHR, Mr. Arnold was given an extension of time to file a request for redetermination and a new deadline of April 13, 1992 was specifically and unambiguously provided. Ernest Arnold's petition for relief was filed with FCHR on April 17, 1992, four days late. Mr. Arnold states that he was confused about the deadline as he did not have an attorney. He presented no other basis for a finding of excusable neglect.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: that Ernest Arnold's petition for relief be DISMISSED. DONE AND RECOMMENDED this 28th day of October, 1992, in Tallahassee, Florida. MARY W. CLARK 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 28th day of October, 1992. COPIES FURNISHED: Eric D. Dunlap, Esquire Assistant District Legal Counsel Department of Health and Rehabilitative Services 400 W. Robinson Street, Suite S-827 Orlando, Florida 32801 Reverend Charles Fulse 1607 Holden Avenue, Apt. C Orlando, Florida 32839 Margaret Jones, Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4113 Dana Baird, Esquire General Counsel Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4113
The Issue Whether depreciation of buildings or other property purchased with federal grants in prior years was an allowable expense, requiring reimbursement by petitioner under its contract with the District II-B Mental Health Board and/or its predecessor for community mental health and related services? Whether disallowing such depreciation was a break with prior practice and, if so, whether an agency can lawfully make such a change without rulemaking?
Findings Of Fact For the fiscal year ended June 30, 1977, respondent reported depreciation of $18,540 for purposes of state reimbursement on account of building or equipment constructed or purchased with federal grants before July 1, 1976. The amount of depreciation is not in dispute between the parties. Petitioner, Department of Health and Rehabilitative Services (HRS), contracted with District Mental Health Board Number IV on June 30, 1976, Respondent's 1/ Exhibit No. A-1, and with the successor District Mental Health Board Number II-B on January 1, 1977, Respondent's Exhibit No. A-2, for community mental health and related services in Franklin, Gadsden, Jefferson, Leon, Liberty, Madison, Taylor and Wakulla Counties for the fiscal year July 1, 1976, through June 30, 1977. The District Mental Health Board, both as originally constituted and as renamed and reconstituted (The Board), in turn subcontracted with respondent to provide the community mental health and related services called for in its contracts with petitioner. Subsequently, The Board assigned to respondent its interest in the contracts with petitioner relative to fiscal year 1976-1977. Both contracts, Respondent's Exhibit Nos. A-1 and A-2, provide that the parties mutually agree, inter alia: That both parties have read and will comply with the following: 45 CFR Part 228 (as amended) Title XX Regulations HRSM 55-1, Title XX Eligibility Determination Manual This language appears in Part III of each contract under the heading "Federal and State Laws, Standards and Directive." The parties stipulated that 45 CFR Part 74 is incorporated by reference in 45 CFR 228.9 and, therefore, in the contracts in issue. In Part II of each contract in a section styled "Participation in Title XX Funding Program," The Board agrees: To participate in the Department's data reporting systems as required by the Department and Federal rules and regulations for the Title XX funding program in order to receive any funding under the terms of this agreement. Also, to comply with Rules, Regulations and Guidelines, and Instruction established by 45 CFR Part 228 and the Department of Health and Rehabilitative Services for one Title XX funding program. (See Attachment #1) Neither Respondent's Exhibit No. A-1 nor Respondent's Exhibit No. A-2 had any attachments. All disbursements called for by the contracts are "subject to funds being made available by the Florida Legislature or other sources." At the time each of these contracts was entered into and until at least as late as April of 1977, petitioner had consistently, in auditing programs, allowed depreciation on buildings built or property acquired with federal, county or donated moneys so long as they were built or acquired before the contract year began. (Expenditures of such moneys were not reimbursed in the year made, however.) This practice did not change with promulgation and use of the first version of the form now known as HRS-MH Form 1025, "Title XX Quarterly Services Summary," Respondent's Exhibit No. G-2. Under the heading "Unit Cost," Respondent's Exhibit No. G-2 and its predecessors have had, at all pertinent times, three columns labeled "Total," "State" and "Title XX," respectively. On the basis of these "Quarterly Services Summaries," HRS draws down Title XX funds. In the spring of 1981, HRS disallowed depreciation like that at issue here, claimed by respondent for fiscal year ended June 30, 1976, Petitioner's Exhibit No. 1, but this did not lower respondent's actual reimbursement; and no administrative hearing was requested or objection noted. From January 1, 1975, until December 31, 1976, Rule 10E-4.07(3)(s), Florida Administrative Code, was in full force and effect and provided: 4300 Rental of Buildings Reimbursable: Rental of buildings or office space for facility or board up to the maximum of the state office rental rate schedule published annually by the Department of General Services. See Exhibit 6. Donated Space-Cost absorbed by others. Those facilities or boards with space furnished free may claim as reimbursable an allowance for rent not to exceed the state office rental rate schedule published annually by the Department of General Services. See Exhibit 6. Non-reimbursable: If a facility or board owns a building or equipment and rents it to another facility or board, the rent or the depreciation may be claimed as a reimbursable expense, but not both. Respondent's Exhibit C. In preparing the foregoing findings of fact, the hearing officer has had the benefit of respondent's recommended findings of fact and conclusions of law. The proposed findings have been largely adopted, in substance. To the extent they have not been, they have been deemed immaterial, cumulative or unsupported by the weight of the evidence.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner take steps to recover from respondent eighteen thousand five hundred forty dollars ($18,540.00). DONE and ENTERED this 3rd day of June, 1983, in Tallahassee, Florida. ROBERT T. BENTON II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of June, 1983.
