The Issue Petitioner's complaint and Petition for relief allege that she was discriminated against due to her handicap of multiple sclerosis when she was terminated by Respondents on March 9, 1990. The issue for disposition is whether that violation of Section 760.10, F.S., occurred, and if so, what relief is appropriate.
Findings Of Fact Leah Swenson-Davis was employed by Respondent, Orlando Partners, as a national sales manager from August 1989, until her termination on March 9, 1990. As sales manager she searched out new business for the hotel, maintained files and obtained repeat business from corporations and other customers. Her salary was $28,000.00 a year. Louis Evans was director of sales, and her supervisor. He hired Ms. Swenson-Davis to book conventions and also hired Barbara Hydechuk and Beth Darkshani as other sales staff. In his opinion Ms. Swenson-Davis was a "pro"; she generated substantial revenue for the hotel and her sales bookings were "much superior" to the other staff. At one point, the three women were promised new office chairs if they could generate 500 room/nights by Friday of the same week. They made their goal, with Ms. Swenson-Davis bringing in 437 out of the total, and the other women bringing in the remainder. In addition to booking hotel rooms, Ms. Swenson-Davis also was effective in selling other hotel services. She generated business from groups who had previously used the hotel but had not been reworked. Her booking packages were very detailed and thorough and she had few cancellations. In February 1990, Barbara Hydechuk was promoted to director of sales, and she took over the responsibility of national sales. Leah Swenson-Davis was hospitalized in February 1990, for what was originally thought to be a stroke. She was then diagnosed as having multiple sclerosis, a disease affecting functions in the nervous system. Hers is not a severe form of the disease and her physician released her to return to work half-time. At the hearing, no signs of illness were evident; that is, she moved and spoke in a perfectly normal manner. When she returned to work, however, Ms. Swenson-Davis was treated "like a leper". Bill Flynn and Barbara Hydechuk made her feel like she would infect them. She was kept at a physical distance. During her absence, Barbara Hydechuk had been promoted. When Ms. Swenson-Davis asked Bill Flynn why she was not informed of the promotion opportunity, he replied that he had worked with Barbara. The work atmosphere, and employees' attitudes toward Ms. Swenson-Davis were very different after her return to work. On March 9, 1990, the Friday before Ms. Swenson-Davis was to pick up her doctor's release to return to work full-time, she was informed by Barbara Hydechuk that she was "terminated immediately" due to lack of productivity in the sales department. Since her termination, Ms. Swenson-Davis has submitted approximately 300 applications with other hotels, and in other sales and marketing areas. She has been given interviews, but has not been hired as of the date of the hearing, although she is capable of working full-time. She received unemployment compensation from March until September 1990. She has accrued medical expenses in the amount of $12,602.00, in 1992, for herself and her son, which expenses would have been covered by her former employer's benefit package. She was insured through COBRA until December 1990, when the premiums went over $500.00 and she could no longer afford them.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Florida Commission on Human Relations enter its final order requiring 1) Reinstatement of Petitioner in the same or equivalent position, 2) damages of back pay computed at the rate of $28,000.00 per year from the time of discharge until reinstatement or rejection of an offer of equivalent employment, less payments received for unemployment compensation; 3) damages in the amount of $12,602.00, representing medical benefits lost; and 4) reasonable costs and attorneys fees. DONE AND RECOMMENDED this 14th day of January, 1993, in Tallahassee, Leon County, Florida. MARY 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 14th day of January, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-3920 The following constitute specific rulings on the findings of fact submitted by Petitioner: 1. Adopted in paragraph 1. 2.-3. Adopted in paragraphs 2, 3, and 4. 4. Rejected as irrelevant. 5.-6. Adopted in paragraph 6. 7. Adopted in paragraphs 2, 5, and 7. Rejected as contrary to the evidence. Petitioner asked why she was not told of the promotion opportunity. Adopted in paragraph 7. Adopted in paragraph 5. 11.-12. Adopted in paragraph 8. Rejected in part. The complaint in this case relates to wrongful termination, not failure to promote. Moreover, no competent evidence supports a finding that Petitioner would have applied for promotion or was denied promotion on account of her handicap. The other employee was promoted prior to Petitioner's return to work. Adopted in paragraph 9. Rejected as unsupported by the evidence. Basis for the computation is not apparent. Rejected as immaterial. Adopted in substance in paragraph 9, although the $200.00 expense incurred in 2/90 is rejected, as petitioner was still employed at that time. Rejected as unsupported by competent evidence. Rejected as unnecessary, although the recommendation for reinstatement is adopted. COPIES FURNISHED: James A. Kirkland Kirkland Management, Inc. 946 North Mills Avenue Orlando, Florida 32802 Percy Bell K. F. International Host, Inc. 1600 Lee Road Winter Park, Florida 32790 Raymond Rotella Kosto & Rotella, P.A. Post Ofice Box 113 Orlando, Florida 32802 Orlando Partners, Inc. d/b/a Quality Hotel Orlando Airport 3835 McCoy Road Orlando, Florida 32812-4199 Tobe Lev, Esquire Post Office Box 2231 Orlando, Florida 32802 Betsy Kushner, Claim Representative Cigna Property and Casualty Companies Post Office Box 30389 Tampa, Florida 33630-3389 Margaret Jones, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4113 Dana Baird, General Counsel Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4113
Conclusions THIS CAUSE is before me for issuance of a Final Order. In a letter issued by the Agency for Health Care Administration (“Agency”), Bureau of Medicaid Program Integrity, the Respondent, ASHRAF BEHARRIE, M.D., a Florida Medicaid provider, was informed that the Agency was seeking to recoup Medicaid overpayments in the amount of $40,055.08 and costs in the amount of $4,381.91, and to impose a fine in the amount of $8,011.02, for a total amount due of $52,448.01. Agency records indicate that the Respondent has satisfied the obligations that were set forth in the letter, which is attached hereto and incorporated by reference herein. The Agency incorporates and adopts each and every relevant statement and conclusion of law set forth in the letter. The Respondent has satisfied and paid in full the total amount of $52,448.01 to the Agency’s Finance and Accounting Department. Copies of the payments, checks and Final Agency Action Report are incorporated by reference herein.
Conclusions THIS CAUSE comes before the State of Florida, Agency for Health Care Administration, (“the Agency”) regarding certificate of need ("CON") application number 10157 filed by Tallahassee Medical Center, Inc. d/b/a Capital Regional Medical Center (“CRMC”) and CON application number 10156 filed by Bay Hospital, Inc. d/b/a Gulf Coast Medical Center (*GCMC”). 1. CRMC filed a CON application which sought the establishment of a 12-bed comprehensive medical rehabilitation unit within its hospital located in Leon County, Florida, Service District 2. The Agency denied CRMC’s CON application 10157. 2. GCMC filed a CON application which sought the establishment of a 20-bed comprehensive medical rehabilitation unit within its hospital located in Bay County. Florida, Service District 2. The Agency denied GCMC’s CON application 10156. 3. Both parties filed a petition for formal hearing challenging the Agency’s denials of their respective CON applications. 4. Both parties have since voluntarily dismissed their petitions for formal hearing. 5. Based upon these voluntary dismissals, the Division of Administrative Hearings entered an Order Closing Files in the above styled matter. IT IS THEREFORE ORDERED: 6. The denial of CRMC’s CON application 10157 is UPHELD. 7. The denial of GCMC’s CON application 10156 is UPHELD. ORDERED in Tallahassee, Florida on thie 2 day of Crfebe_ . 2013. hob Py eclets Elizabeth Dudk, Secretary Agency for Health Care Administration
Other Judicial Opinions 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. CERTIFICATE OF SERVICE 1 HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been furnished by U.S. Mail or electronic mail to the persons named below on this f 3S day of /Voye—he/ . 2013. Richard J. Shoop, Agency Cler Agency for Health Care Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308 (850) 412-3630 Janice Mills Facilities Intake Unit Agency for Health Care Administration (Electronic Mail) James McLemore, Supervisor Certificate of Need Unit Agency for Health Care Administration (Electronic Mail) James H. Peterson, IE] Administrative Law Judge Division of Administrative Hearings | (Electronic Mail) Lorraine M. Novak, Esquire Assistant General Counsel Agency for Health Care Administration (Electronic Mail) Stephen A. Ecenia, Esquire R. David Prescott, Esquire Rutledge Ecenia, P.A. 119 South Monroe Street, Suite 202 Tallahassee, Florida 32302 Counsel for CRMC and GCMC (U.S. Mail) R. Terry Rigsby, Esquire Pennington, Moore, Wilkinson, Bell & Dunbar, P.A. 215 South Monroe Street, 2"! Floor Tallahassee, Florida 32301 Counsel for HealthSouth { (US. Mail)
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
The Issue Whether Petitioner, A Place Called Home (“APCH”), committed three Class II deficiencies and an uncorrected Class III deficiency at the time of the survey conducted on January 20 through 27, 2015, so as to justify Respondent, Agency for Health Care Administration (“AHCA”), denying the licensure renewal application of APCH to continue to operate an eight-bed assisted living facility (“ALF”) located in Miami, Florida.
Findings Of Fact The Parties Since 2013, APCH has been licensed by AHCA to operate an eight-bed ALF located in a duplex at 80-82 Northeast 68th Terrace, Miami, Florida. APCH is licensed to provide limiting nursing and mental health services. Tory Mays has been the Administrator of APCH since its inception in 2013. His wife, Linda Mays, is a Florida licensed advanced registered nurse practitioner, and the contracting nursing care consultant for APCH. AHCA is the state agency responsible for licensing and monitoring assisted living facilities in this state. The October 21, 2014, Survey On October 21, 2014, AHCA conducted a standard biennial survey at APCH. The October 21, 2014, survey was conducted by Judith Calixte-Joasil, who has conducted thousands of surveys during the past nine years she has been employed by AHCA. Ms. Calixte-Joasil, who is employed by AHCA as a health facility evaluator no. 2, has no nursing background, and she is not a physician. During this survey, Ms. Calixte-Joasil found and cited APCH with seven Class III deficiencies. Ms. Calixte-Joasil issued seven separate “tags” to explain the deficiencies. The following is a summary of the seven Class III deficiencies found by Ms. Calixte-Joasil during the October 21, 2014, survey: Tag A026–-Resident Care-–Social & Leisure Activities: Failure to provide scheduled activities posted in the common area and failure to encourage the residents to participate in social, recreational, educational, and other activities within the facility and community. Tag A078–-Staffing Standards: Failure to ensure that a staff member had documentation verifying proof of an annual tuberculosis test result. Tag A079–-Staffing Standards: A staff schedule showed an individual listed on the work schedule for the month of October 2014, but that individual no longer worked at the facility. Tag A081–-Staff In-Service Training: Failure to have proper training hours that are not over the time limits in one day of training (two out of four sampled staff). Tag A152–-Physical Plant–-Safe Living Environment/Other: Broken and rotten wood around an air conditioner unit in an outside window area of one of the rooms. Also, peeling paint in front of the air conditioner was observed in this room. Peeling paint was also observed on the ceiling in both common areas. Finally, in another room, there were missing dresser knobs and a broken door with peeling paint. Tag A160–-Records: Failure to have resident elopement response policies and procedures. Tag AL243–-Training: Failure to have documentation ensuring that a staff member completed the minimum six hours of continuing education. The Incident Involving Resident M.R. M.R. is a current resident at APCH. M.R. became a resident of APCH on December 29, 2014, after transferring from another ALF called Ashley Gardens. Upon transferring to APCH, Ms. Mays examined M.R. and completed AHCA’s Form 1823, titled Resident Health Assessment for Assisted Living Facilities.1/ At the time of her transfer to APCH on December 29, 2014, M.R. was 80 years old, 4’9” inches tall, and weighed 107 pounds. Her medical history and diagnoses were positive for hypertension, Alzheimer’s disease, and psychosis. At that time, M.R. had an “unsteady gait.” She needed “hands on” assistance for bathing and assistance choosing clothing, but she could independently ambulate, eat, care for herself, and use the toilet. Her cognitive or behavioral status was “impaired mental status.” No nursing, treatment, psychiatric or therapy services were required. No special precautions were necessary, and she was not an elopement risk. From December 29, 2014, until January 14, 2015, M.R. resided at APCH without incident. However, on January 14, 2015, at 4:15 p.m., M.R. fell at the entrance of APCH and suffered injury. Mr. Mays learned of M.R.’s fall shortly after it occurred, when he received a telephone call from Glasna Sterling, a caregiver at APCH. Mr. Mays then called his wife to let her know of the fall. Mr. Mays also called Ben Johnson, M.R.’s guardian, to let him know of the fall. In the meantime, a caregiver at the facility applied some ice to M.R.’s face shortly after the fall. Ms. Mays arrived at APCH on January 14, 2015, and conducted a thorough “face-to- face,” “head-to-toe” examination and nursing assessment of M.R. at 7:30 p.m. M.R.’s chief complaint at that time was that her forehead hurt. Upon examination, Ms. Mays observed a two-inch circumference closed hematoma above M.R.’s right eye, which was tender to the touch.2/ Ms. Mays’ examination and nursing assessment of M.R. on January 14, 2015, included checking M.R.’s mentation from her baseline, which was forgetfulness. Ms. Mays examined M.R.’s cognitive abilities and was able to determine her level of orientation and mental status. Ms. Mays observed that M.R.’s eyes were open; she could speak, move, and respond appropriately to voice commands. Ms. Mays examined M.R.’s pupils to see if they were reactive to light and accommodating. Ms. Mays checked the movement of M.R.’s limbs. She checked her lung and bowel sounds. Ms. Mays performed a Glasgow Scale test, which is a test designed to determine a patient’s neurological status and any type of neurological change. Ms. Mays found no deficits on the Glasgow Scale. Following her January 14, 2015, examination of M.R., Ms. Mays’ assessment was hematoma secondary to head trauma. M.R. also had a bruised knee. Ms. Mays determined that M.R.’s injuries resulting from the fall required first-aid type treatment, only, which could be provided by a person who is trained to perform first-aid. At that time, Ms. Mays’ recommended plan of treatment called for ice to be applied to M.R.’s forehead for 15 minutes every two hours for eight hours; the checking of vital signs and alertness for the next eight hours; and required the caregiver, Mr. Sterling, to call M.R.’s primary doctor (Dr. Moses Alade) if M.R. became confused, dizzy, or there was a change in her level of consciousness. No ambulance or physician was called regarding M.R. on January 14, 2015. Ms. Mays documented her findings and treatment plan in “SOAP” notes dated 7:30 p.m., on January 14, 2015. SOAP notes are a problem-solving focused style of note writing, and provide guidance as to how a nurse might document her assessment of a patient for an issue that is being addressed. The term SOAP is an acronym for the following: S=subject, O=objective, A=assessment, and P=plan. The SOAP notes were maintained in M.R.’s resident file to document her health condition. Ms. Mays and Mr. Sterling were trained and qualified to perform the duties set forth in the “SOAP” notes. Ms. Mays and Mr. Sterling were trained and qualified to provide first-aid to residents. Notably, Mr. Sterling was trained and qualified on how to observe and report any changes in M.R.’s condition to Dr. Alade. Ms. Mays explained to Mr. Sterling that he should contact Dr. Alade if M.R. became dizzy; if she was not waking up; if she was sluggish; if there was any change in her normal alertness; if she was not eating; if she appeared more confused than usual; or if she was combative. Ms. Mays continued to monitor M.R.’s condition over the next two days to ensure that her initial findings were accurate. Ms. Mays also followed-up with Mr. Sterling over the next two days to ensure that he followed her orders. There was no change in M.R.’s level of consciousness during the overnight period of January 14 through 15, 2015. On January 15, 2015, at 5:30 p.m., Ms. Mays returned to APCH and conducted another examination of M.R. At this time, M.R. appeared guarded. Nevertheless, Ms. Mays observed that the hematoma was healing, and had reduced in size from two inches to one inch in circumference. The area was non-tender. There had been no change in M.R.’s level of consciousness. M.R.’s vital signs reflected a blood pressure reading of 122/78 and a heart rate of 82, which are within normal limits.3/ Notably, by this time, fluid that had collected in the hematoma had begun to collect in the facial tissues, resulting in M.R.’s facial area appearing purple/blue in color. At hearing, Ms. Mays explained that for a geriatric patient such as M.R. with non-elastic skin, it is reasonable that the fluid collected in the hematoma would dissipate downward with gravity in other areas of the body, such as to the face. Based on her examination of M.R. on January 15, 2015, Ms. Mays’ assessment remained hematoma secondary to head trauma. Again, Ms. Mays determined that nothing more than first-aid type treatment was required. Following her examination of M.R. on January 15, 2015, Ms. Mays’ recommended treatment called for Tylenol (325mg ii tabs)4/ and ice to be applied to the forehead, if needed; the checking of alertness; and required the caregiver, Mr. Sterling, to call M.R.’s primary doctor (Dr. Alade) if M.R. became confused, dizzy, or there was a change in her level of consciousness. Ms. Mays again documented her findings and treatment plan in “SOAP” notes dated 5:30 p.m., on January 15, 2015. On January 16, 2015, at 5:35 p.m., Ms. Mays returned to APCH and conducted another examination of M.R. At this examination, M.R. was less guarded. Ms. Mays observed that the hematoma was continuing to heal and had reduced in size from one inch to .75 inch in circumference. The area was non-tender. There had been no change in M.R.’s level of consciousness. M.R.’s vital signs reflected a blood pressure reading of 117/74 and a heart rate of 76, which are within normal limits. However, by this time, Ms. Mays observed a purple/blue discoloration on both sides of M.R.’s face and a dark green and yellow color on the bridge of her nose. This observation was consistent with blood collecting in the tissues of her face as previously determined by Ms. Mays. Based on her examination of M.R. on January 16, 2015, Ms. Mays’ assessment remained hematoma secondary to head trauma. Again, Ms. Mays determined that nothing more than first-aid type treatment was required of M.R. Following her examination of M.R. on January 16, 2015, Ms. Mays’ treatment plan called for Tylenol (325mg ii tabs), if needed; the checking of alertness; and required the caregiver, Mr. Sterling, to call M.R.’s primary doctor (Dr. Alade) if M.R. became confused, dizzy, or there was a change in level of consciousness. Ms. Mays again documented her findings and treatment plan in “SOAP” notes dated 5:33 p.m., on January 16, 2015. Following her examination of M.R. on January 16, 2015, Ms. Mays had no further face-to-face contact with M.R. between January 16, 2015, and January 21, 2015. The January 20 through 27, 2015, Survey and Its Aftermath From January 20 through 27, 2015, a standard biennial revisit survey was conducted at APCH by Ms. Calixte-Joasil. Upon arriving at APCH at 9:15 a.m., on January 20, 2015, to conduct the revisit survey, Ms. Calixte-Joasil observed M.R. sitting on the couch. Ms. Calixte-Joasil observed M.R.’s face with the different discolorations and bruises. Ms. Calixte- Joasil became concerned based on M.R.’s appearance. Ms. Calixte- Joasil proceeded to take three photographs of M.R.’s face. Based on “the way she looked,” Ms. Calixte-Joasil believed that M.R. needed to see a doctor “just to be on the safe side to make sure she didn’t suffer any other injuries.” M.R. had already been scheduled to see Dr. Alade on January 20, 2015, for a “normal appointment,” unrelated to her January 14, 2015, fall. Ms. Calixte-Joasil saw M.R. leave APCH on January 20, 2015, accompanied by another caregiver of APCH (“Ms. Esther”) who provides transportation. Ms. Calixte-Joasil observed M.R. and Ms. Esther linking arms, with Ms. Esther assisting M.R. walking out of the facility. At that time, Ms. Esther had M.R.’s resident file with her. Ms. Calixte-Joasil assumed Ms. Esther was taking M.R. to see Dr. Alade. Both Ms. Calixte-Joasil and Mr. Mays believed that on January 20, 2015, Ms. Esther took M.R. to Dr. Alade’s office on January 20, 2015, for her regularly scheduled appointment. Unbeknownst to Ms. Calixte-Joasil or Mr. Mays on January 20, 2015, however, Ms. Esther did not take M.R. to see Dr. Alade on January 20, 2015, as she was supposed to do. The next day, January 21, 2015, Ms. Calixte-Joasil called Dr. Alade’s office directly and found out that he did not see M.R. on January 20, 2015. When Mr. Mays found out that Ms. Esther had not taken M.R. to see Dr. Alade on January 20, 2015, Ms. Ester was suspended by APCH for two weeks and subsequently terminated. On January 21, 2015, Ms. Mays contacted Dr. Alade for the first time regarding M.R.’s fall on January 14, 2015. Ms. Mays contacted Dr. Alade on January 21, 2015, because by this time, AHCA was questioning the care that had been provided to M.R. by APCH. When Ms. Mays spoke to Dr. Alade on January 21, 2015, she explained her examinations, assessments, and treatment of M.R. from January 14 through 16, 2015. No persuasive evidence was adduced at hearing that Dr. Alade recommended that M.R. be taken to the hospital or that he needed to see her for an immediate evaluation. Upon her return to APCH on January 21, 2015, Ms. Calixte-Joasil continued her survey and investigation as to what transpired with M.R. Ms. Calixte-Joasil examined Ms. Mays’ “SOAP notes.” Ms. Calixte-Joasil’s testimony that she was unable to determine from her review of Ms. Mays’ notes whether M.R. had made any improvement between January 14 and 16, 2015, is unpersuasive, and not credited. Notably, at hearing, Arlene Mayo-Davis, AHCA’s nursing expert, acknowledged that during that time, the SOAP notes reflect that the hematoma was getting better and healing. Ms. Calixte-Joasil made no effort to communicate with Ms. Mays on January 20 or 21, 2015. However, Ms. Calixte-Joasil contacted the Department of Children and Families (“DCF”) because of how M.R. looked and after finding out that M.R. did not go to the doctor as scheduled on January 20, 2015. Ms. Calixte-Joasil suspected that M.R. was the victim of abuse “from the way she looked, the fall.” Ms. Calixte-Joasil expected DCF “to come out and investigate based on my findings and what I had said.” DCF arrived at APCH on January 23, 2015, along with law enforcement. DCF arranged for M.R. to be taken by ambulance to the North Shore Medical Center emergency room. Upon learning that M.R. had been taken to the emergency room, Ms. Mays called Dr. Alade. After talking to Dr. Alade, Ms. Mays met M.R. at the emergency room and provided the emergency room physician with a report as to what happened. Ms. Mays proceeded to the emergency room and provided the emergency room physician with a report as to what happened. M.R. was admitted to the hospital on January 23, 2015. Dr. Alade agreed on January 23, 2015, that M.R. should be admitted to the hospital, and he traced M.R.’s pre-admission work-up.5/ The emergency physician who examined M.R. at the hospital reviewed Ms. Mays’ notes, and Ms. Mays testified that the emergency room physican agreed with her assessment and treatment of M.R. On January 29, 2015, M.R. was discharged from the hospital with a diagnosis of contusion and urinary tract infection. The discharge diagnosis of contusion confirms that M.R. did not suffer any fractures or a brain injury as a result of the January 14, 2015, fall, and is compatible with the need for first-aid type treatment, only, which was adequately provided by APCH. There is nothing more that APCH could have done that would have changed the course of M.R.’s recovery from her injuries resulting from the fall. Following her discharge, M.R. was returned to APCH on January 29, 2015. On February 3, 2015, Dr. Alade examined M.R. and completed AHCA’s Form 1823. Following his examination of M.R. on February 3, 2015, Dr. Alade indicated that M.R.’s facial contusion had resolved. At no time has Dr. Alade expressed any concern about the manner in which M.R. was medically treated at APCH. Dr. Alade recommended that M.R. return to APCH where she has resided ever since. M.R.’s guardian approved of M.R.’s return to APCH. AHCA’s Alleged Deficiencies as a Result of the January 20 through 27, 2015, Survey AHCA’s proposed agency action to deny APCH’s renewal license is based on three purported Class II deficiencies and one purported uncorrected Class III deficiency. Each of these alleged deficiencies relate to M.R.’s fall on January 14, 2015, and the subsequent January 20 through 27, 2015, survey. The undersigned turns now to specifically address each of these alleged deficiencies upon which AHCA’s proposed agency action is based. Tag A030: Class II Deficiency As a result of the January 20 through 27, 2015, survey, AHCA charged APCH with the following Class II deficiency: Tag A030 58A-5.0182(6) FAC; 429.28 FS Resident Care-–Rights & Facility Procedures: * * * he facility failed to provide access to adequate and appropriate health care consistent with established and recognized standards within the community for one out of eight [M.R.] residents. In support of its position, AHCA presented the expert testimony of Ms. Mayo-Davis. Ms. Mayo-Davis is a licensed registered nurse. She has been licensed since 1988. At hearing, AHCA’s counsel offered Ms. Mayo-Davis as an expert in the area of general nursing. Without objection, she was accepted by the undersigned as an expert in general nursing. By way of background, Ms. Mayo-Davis worked as a registered nurse at two hospitals for a total of seven years, focusing on medical, surgical, oncology, and hematology. Since 1995, she has been employed by AHCA. She began her ACHA employment as a registered nurse specialist. She later became a registered nurse supervisor and registered nurse consultant. Ms. Mayo-Davis is currently employed by AHCA as a field office manager. As a field office manager, Ms. Mayo-Davis manages 110 employees in the Delray and Miami, Florida, offices of AHCA. As a field officer manager, Ms. Mayo-Davis reviews deficiencies found at AHCA licensed facility surveys. She reviews hundreds of surveys on an annual basis, but she has not actually performed surveys while employed at AHCA. At hearing, Ms. Mayo-Davis opined that the factual basis supporting this alleged deficiency is that the facility “did not seek additional health evaluation after the resident had a fall.” Ms. Mayo-Davis testified that based on her review of the three photographs taken on January 20, 2015, and other documents, her nursing impression is that there was the potential for a brain injury or fracture of the face and that M.R. needed to be assessed by a doctor, not a nurse, and also taken to the hospital to evaluate whether or not some additional diagnostic testing needed to be done (i.e., CAT scan or X-ray). Ms. Mayo-Davis opined that M.R. still needed to go to the hospital even though by the third day “things were resolving.” At hearing, Ms. Mayo-Davis conceded that there is no evidence that M.R. suffered a brain injury or fracture to the face as a result of the fall on January 14, 2015. Importantly, at hearing, Ms. Mayo-Davis conceded that she never saw or examined M.R., and that she has never been to APCH. The undersigned rejects Ms. Mayo-Davis’ opinions as unpersuasive. The undersigned accepts and finds Ms. Mays’ opinions persuasive. By way of background, Ms. Mays received a bachelor’s degree in nursing from the University of Miami in 1999 and a master’s degree in nursing for clinical research from Duke University in 2001. She received a post-masters’ certificate as a psychiatric nurse practitioner from the University of Florida in 2013 and a doctoral degree in nursing practice from the University of Florida in August 2015. Ms. Mays has been licensed as a registered nurse in Florida since 1997. She is also licensed as a registered nurse in North Carolina and Kentucky. She is also licensed as an advanced registered nurse practitioner in Florida and Kentucky. Ms. Mays received training as an ALF administrator in Florida, and she is certified by the State of Florida to train ALF trainers. Ms. Mays began her work experience as a telemetry nurse for two years at Kendall Regional Medical Center. After that, she studied at Duke University where she became a clinical instructor for nursing students at Vance-Granville Community College, as well as the staff coordinator trainer at a nursing home in North Carolina. After that, Ms. Mays moved to Kentucky for six months where she was hired to be a director of a nursing home. She then returned to South Florida, where she accepted the position of director of nursing for a ventilator unit at Miami Hart Hospital, a position she held for three years. After Ms. Mays received her post-master’s certificate as a psychiatric nurse practitioner, she was then hired to work at West Palm Hospital as a psychiatric nurse practitioner. She is currently employed as an assistant professor at the University of Miami for clinical studies in the School of Nursing, in addition to her duties as the nursing care consultant at APCH. At hearing, without objection, Ms. Mays was accepted as an expert in the areas of general nursing, nursing standards, fall management, core training as it relates to ALFs, and nursing as it relates to the administration and management of ALFs. Ms. Mays persuasively opined that the acute course of M.R.’s medical condition occurred between January 14 and 16, 2015. During this time period, there was no change in M.R.’s condition because of her injuries from the fall which necessitated APCH contacting M.R.’s primary care physician or taking her to the hospital. M.R. was able to carry out her same activities of daily living she had done before the fall. Ms. Mays persuasively opined at hearing that had there been any indication of a brain injury as a result of the fall, the symptoms would have manifested during the January 14 through 16, 2015, period. However, no symptoms of a brain injury were presented, and there was no indication of a fracture. The persuasive evidence adduced at hearing establishes that APCH provided the correct course of treatment following M.R.’s fall, and there was no need for any further medical treatment or assessment of M.R. as a result of her injuries from the fall. M.R. was not subject to abuse or neglect by APCH, and AHCA failed to prove an intentional or negligent act by APCH seriously or materially affecting the health of M.R. Based on the particular facts of this case, the first-aid medical treatment provided by APCH as a result of M.R.’s injuries from the fall was adequate, appropriate, and consistent with the established and recognized standards within the community. Mr. Sterling was trained and qualified to perform the first-aid type treatment that he did and to contact Dr. Alade if there was any change in M.R.’s condition. Mr. Sterling’s first-aid treatment of M.R. was consistent with Ms. Mays’ protocol. The treatment protocol was sufficiently documented and followed. The preponderance of the evidence presented at hearing fails to establish a violation of Tag A030. Tag A077: Class II Deficiency As a result of the January 20 through 27, 2015, survey, AHCA also charged APCH with the following Class II deficiency: Tag A077: 58A-5.019(1) FAC Staffing Standards--Administrators * * * he facility failed to be under the supervision of an administrator who is responsible for the provision of appropriate care for one out of eight [M.R.] residents. The facility administrator, Mr. Mays, is responsible for the provision of appropriate care for the residents. At hearing, Ms. Calixte-Joasil testified that it is the administrator’s responsibility to ensure that the resident receive appropriate care. She testified that the reason she cited APCH for this deficiency is because Mr. Mays, “never ensured that she saw a doctor,” there was no documentation that she saw a doctor, and then when she contacted the doctor’s office, Dr. Alade had not seen her. Again, this deficiency is based on M.R.’s fall, and AHCA’s position that M.R. did not receive appropriate care as a result of her injuries from the fall. However, as detailed above, the undersigned has found that M.R. received adequate and appropriate care as a result of her injuries from the fall. The preponderance of the evidence presented at hearing fails to establish a violation of Tag A077. Tag A025: Class II Deficiency As a result of the January 20 through 27, 2015, survey, AHCA also charged APCH with the following Class II deficiency: Tag A025: 58A-5.0182(1) FAC Resident Care- Supervision * * * he facility failed to maintain a written record of any significant change for one out of eight residents [M.R.]. At hearing, Ms. Calixte-Joasil testified that the factual basis for this alleged deficiency is that APCH did not have any written record of any “significant change” for M.R. following the fall. The determination of whether a resident suffered from a “significant change” in behavior or mood cannot be made by a non- medical professional. Nevertheless, Ms. Calixte-Joasil made the determination that M.R. suffered from a “significant change” in her health status because of the “bump” on her head and “discoloration of the resident’s eyes.” The contusion caused by M.R.’s fall, which later resolved, did not result in a significant change in her health status. As detailed above, the injuries M.R. sustained as a result of the fall were short-term, requiring first-aid treatment, only. M.R. was able to continue to carry out her same activities of daily living before and after the fall. The credible and persuasive evidence adduced at hearing establishes that M.R. did not suffer from a “significant change” in her health status as a result of her injuries from the fall on January 14, 2015. The preponderance of the evidence presented at hearing fails to establish a violation of Tag A025. Tag A152: Uncorrected Class III Deficiency As a result of the January 20 through 27, 2015, survey, AHCA also charged APCH with the following Class III uncorrected deficiency: Tag A152: 58A-5.023(3) FAC Physical Plant-– Safe Living Environ/Other * * * he facility failed to maintain a safe living environment free from hazards. This alleged deficiency is premised on Ms. Calixte-Joasil’s belief that M.R.’s fall was caused by her tripping over a metal threshold at the entrance of APCH. At hearing, Ms. Calixte-Joasil testified that her belief is based on a conversation she had with Mr. Sterling on January 27, 2015. However, a review of Ms. Calixte-Joasil’s survey notes reflects that Mr. Sterling told her that his back was toward M.R. when she fell, and he did not actually see when M.R. fell. At hearing, Ms. Calixte-Joasil further testified that Ms. Mays told her that M.R. fell as a result of the metal threshold. However, Ms. Calixte-Joasil acknowledged that this purported statement is not in her survey notes. At hearing, Mr. Mays denied making the purported statement to Ms. Calixte- Joasil. No persuasive and credible evidence was adduced at hearing to demonstrate what caused M.R. to fall on January 14, 2015. Although APCH did not dispute in its Petition for Formal Hearing that M.R. “fell at the entrance of the facility,” that does not mean that she tripped over the metal threshold at the entrance of the facility. No witnesses who actually saw M.R. fall testified at the hearing. M.R. could have tripped over her own two feet at the entrance to the facility. Ms. Calixte-Joasil’s testimony that M.R. fell because she tripped over the metal threshold is not credited. Mr. Mays’ testimony is credited. In sum, the persuasive evidence adduced at hearing fails to establish that M.R. tripped over the metal threshold at the entrance door to APCH on January 14, 2015, which caused her to fall and suffer injuries.6/ Moreover, the evidence presented at hearing fails to establish that the metal threshold was a hazardous or potential hazardous condition. At hearing, Ms. Calixte-Joasil testified that when she observed the metal threshold during her January 2015 inspection, “[i]t was elevated a little bit.” Based on her belief that M.R. fell on January 20, 2015, she cited this deficiency as a repeat environmental hazard. APCH was unaware that the metal threshold was a potential hazard prior to the January 20 through 27, 2015, survey. There is no history of anyone ever tripping over the metal threshold prior to January 14, 2015. The metal threshold is not an uncorrected deficiency from the October 21, 2014, survey. The metal threshold was in the same condition on January 20, 2015, as it was at the time of the October 21, 2014, survey. The metal threshold was in the same condition it had been in when APCH commenced operations in 2013. Ms. Calixte-Joasil had been to APCH on multiple occasions prior to the October 21, 2014, survey, and used the same entrance where the metal threshold is located. Notably, Ms. Calixte-Joasil did not cite the metal threshold as an environmental hazard at any time prior to the October 21, 2014, survey, or when she conducted the October 21, 2014, survey. Ms. Calixte-Joasil made no mention to APCH of any issue with the metal threshold prior to the January 20 through 27, 2015, survey, and APCH was never made aware by AHCA that the metal threshold was a tripping hazard prior to the January 20 through 27, 2015, survey.7/ At hearing, Ms. Calixte-Joasil conceded that by the time of the January 20 through 27, 2015, survey, all of the items cited in the October 21, 2014, survey had been timely repaired. APCH’s license was set to expire on February 26, 2015. On February 23, 2015, AHCA conducted a standard biennial second revisit survey at APCH, at which time no deficiencies were found. At hearing, Ms. Calixte-Joasil conceded that all of the January 20 through 27, 2015, citations were timely corrected prior to the February 23, 2015, survey. Thus, there were no deficiencies at the facility for weeks prior to the March 10, 2015, denial letter. 8/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that AHCA enter a final order granting APCH’s license renewal application. DONE AND ENTERED this 9th day of December, 2015, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of December, 2015.
Findings Of Fact The Medicaid Program, as it existed at all times material to this cause, was a governmental health care program providing assistance to needy eligible persons in meeting the cost of medical care. In this program, HRS purchases medical care services directly from a medical care provider, such as petitioner in this case, and makes payments for these services directly to the medical care provider. At all times material hereto, Petitioner was a fully qualified health maintenance organization for purposes of providing Medicaid services. On June 4, 1976, patient Marie P. Harrison was admitted to Petitioner's facility. The patient was discharged on June 17, 1976, after having received treatment for acute stroke, Bell's palsy, and uncontrolled diabetes mellitis. Petitioner submitted a timely request for reimbursement on July 13, 1976, but Respondent denies having received that request. The evidence establishes that representatives of Petitioner followed up the request for reimbursement by making telephone inquiries regarding payment status on this account on February 22, 1977, April 14, 1977, and October 11, 1977. Respondent's only defense to reimbursement on this account was that the request for payment was not received within 90 days from date of discharge. The total amount requested for reimbursement on this account is $2,463.48. On May 6, 1976, patient D. E. Sanders was admitted to Petitioner's facility, and, on May 10, 1976, the patient was discharged after having received treatment for cellulitis, laceration and abrasion of the left foot. The total amount claimed for reimbursement on this account $547.44. At the final hearing, it was represented by counsel for Respondent that Respondent's basis for denying payment of this claim was a consultant's opinion that treatment administered was not medically justified on an in-patient basis. However, Respondent's medical consultant was not called as a witness at the final hearing, and there is no other evidence in the record to support Respondent's position in this regard. On March 12, 1976, patient Gayzatta Elliot was admitted to Petitioner's facility, and on May 16, 1976, the patient was discharged after having received treatment for influenza syndrome, pleurodynia, and iron-deficiency anemia. The total reimbursement claimed on this account is $547.44. Again, Respondent attempted to assert that this claim was rejected because it was not medically justified, but no evidence was offered at the final hearing to support this conclusion. On March 12, 1976, the patient, Gurley Kimble, was admitted to Petitioner's facility and, on March 16, 1976, the patient was discharged after having received treatment for influenza syndrome, acute viral gastritis with dehydration, and iron deficiency anemia. The total amount claimed as reimbursement for this account is $547.44. Respondent again attempted to claim at the final hearing that this claim was rejected because not medically justifiable, but no evidence was offered at the final hearing to support this conclusion. On August 30, 1976, the patient Virginia Jones, was admitted to Petitioner's facility and, on September 3, 1976, the patient was discharged after having received a tubal ligation. There is no evidence in the record from which a determination can be made of the amount Petitioner is claiming for reimbursement on this account. Respondent denied payment of the claim submitted for this patient on grounds that the service performed constituted elective surgery, and was, therefore, a non-covered procedure. The gist of the dispute on this account appears to have been that the treating physician had not submitted a certificate with the billing form indicating that hospitalization was necessary to perform the tubal ligation. However, the record is clear that on February 10, 1977, such a physician's certificate was prepared and later submitted by Petitioner to Respondent and that Respondent was in no way prejudiced by late submission of this certificate. In summary, there is no dispute on any of the accounts forming the subject matter of this proceeding that the medical procedures involved were necessary, that they were, in fact, performed, that Petitioner filed with Respondent the necessary requests for reimbursement, and that Respondent, without factual justification, denied reimbursement of the claims.
