The Issue Whether Respondent committed the acts alleged in the Notice of Specific Charges filed September 28, 2010, and, if so, the discipline, if any, that should be imposed against Respondent's employment.
Findings Of Fact At all times material hereto, Petitioner was the constitutional entity authorized to operate, control, and supervise the public schools in Miami-Dade County, Florida. At all times relevant to this proceeding, Respondent has been on a professional service contract that is subject to a collective bargaining agreement between Miami-Dade County Public Schools and the United Teachers of Dade (hereinafter "the UTD Contract"), applicable Florida Statutes, applicable rules adopted by the Florida State Board of Education as set forth in the Florida Administrative Code, and Petitioner's adopted policies and procedures. Article XXI, Section 1.B(1)(a) of the UTD Contract provides that "Any member of the instructional staff may be suspended or dismissed at any time during the school year, provided that the charges against him/her are based upon Florida Statutes." The School Board has adopted Rule 6Gx13-4A-1.21, Responsibilities and Duties, which provides in pertinent that: All persons employed by The School Board of Miami-Dade County, Florida are representatives of the Miami-Dade County Public Schools. As such, they are expected to conduct themselves, both in their employment and in the community, in a manner that will reflect credit upon themselves and the school system. Unseemly conduct or the use of abusive and/or profane language in the workplace is expressly prohibited. School Board Rule 6Gx13-4A-1.213, Code of Ethics, requires employees of Petitioner to abide by state regulations. The Principles of Professional Conduct for the Education Profession in Florida are set forth in Florida Administrative Code Rule 6B-1.006. Subsections (3)(a) and (e) thereof provide as follows: Obligation to the student requires that the individual: Shall make reasonable effort to protect the student from conditions harmful to learning and/or to the student's physical health and/or safety. * * * (e) Shall not intentionally expose a student to unnecessary embarrassment or disparagement. Petitioner has employed Respondent as a full-time P.E. teacher at South Miami Heights since the 2006-07 school year. South Miami Heights is a public school located in Miami-Dade County, Florida. Respondent has not been the subject of any disciplinary actions by Petitioner other than the incident that is the subject of this matter. Respondent's practice throughout her tenure at South Miami Heights was to require students arriving at P.E. to line up, stop talking, and generally exhibit good behavior prior to starting class. On those occasions when students were not well- behaved, Respondent required the students to walk in an orderly fashion until they calmed down and showed they were ready for class. On hot days, she would required them to walk around the inside corridors of the school, while on cooler days the students would walk outside. In prior years, with a different principal, Respondent would have the students walk in front of the principal's office, who would then go out and call the students to attention to get them to calm down. During the 2009-10 school year Respondent taught P.E. at South Miami Heights to second, third, fourth, and fifth-grade students between the hours of 8:30 a.m. and 3:00 p.m. Her last P.E. class started at 2:00 p.m. and ended at 3:00 p.m. Students in her last class typically brought their book bags with them. On April 15, 2010, at approximately 2:00 p.m., third- grade students from Ms. Fuentes-Garcia's class walked from her class to Respondent's class. There were approximately 25 students in the class. Each student had a book bag. When Respondent took responsibility for the class, many students were talking or otherwise misbehaving. Respondent directed all students in the class to make laps around an outdoor basketball court by walking the white lines that define the outer boundaries of the basketball court. The temperature on April 15, 2010, was 81 degrees. The students were exposed to the sun while they were walking. Respondent required the students to carry or wear their backpacks while walking around the outdoor basketball court.1 According to Respondent, the students were required to walk around the basketball court until they calmed down. She had no idea how long the students would have to walk until they calmed down when she first directed them to start walking. All students in the class were required to walk without stopping for 32 minutes. A student who tried to put her book bag on the ground was told by Respondent to pick it up and keep walking. At the end of the 32-minute period, Respondent escorted the class back to the vicinity of Ms. Fuentes-Garcia's classroom and had the students walk in an orderly fashion to the playground, where they played games until approximately 2:54 p.m. There was a water fountain on playground, but it was not functioning on April 15, 2010. Water was available in a building adjacent to the playground. The students were not permitted to drink water between 2:00 p.m. and 2:54 p.m. At approximately 2:54 p.m. the students left the playground and entered the adjacent building to drink water. A video of the students walking the white lines of the basketball court was captured by the school's security cameras. In one portion of the video, a child can be seen dragging a backpack on the ground. It cannot be determined from the video whether the backpack had wheels. In another portion of the video, Respondent can be seen monitoring the students while standing in the shade of a tree. On April 16, 2010, Ms. Hernandez, the school principal, received complaints from four or five parents of students in the class. M.V., the mother of one of the students in the class, confronted Respondent about the incident on April 16, 2010. This parent testified, credibly, that Respondent told her that she had the class walk the white lines of the basketball court to calm them down and as punishment for being hyper. Following the complaints, the matter was referred to Petitioner's Civil Investigation Unit (CIU) where it was assigned to CIU investigator Terri Chester. Ms. Chester prepared a report after she concluded her investigation. Ms. Duboulay reviewed the report with Respondent in a Conference for the Record on June 8, 2010, and provided Respondent an opportunity to respond to Ms. Chester's report.2 Thereafter a Disciplinary Review Team convened and reviewed the case and concluded that probable cause existed that Respondent had committed the violations subsequently alleged in the Notice of Specific Charges dated September 23, 2010. The Disciplinary Review Team recommended that Respondent be suspended without pay for 30 days based on the totality of the circumstances of the case and the exposure of the students to harm. The manner in which Respondent disciplined her class on April 15, 2010, did not reflect credit on herself or on Petitioner. The manner in which Respondent disciplined her class on April 15, 2010, was inconsistent with her duty to "make reasonable effort to protect the student from conditions harmful to learning and/or to the student's physical health and/or safety."3 There was insufficient evidence to establish that Respondent "intentionally expose[d] a student to unnecessary embarrassment or disparagement." Petitioner followed all relevant procedures in prosecuting this disciplinary proceeding.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that the School Board of Miami-Dade County, Florida enter a final order adopting the Findings of Fact and Conclusions of Law contained in this Recommended Order. It is further RECOMMENDED that the final order sustain the suspension of Respondent's employment without pay for a period of 30 workdays. DONE AND ENTERED this 14th day of March, 2011, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 14th day of March, 2011.
Findings Of Fact Petitioner, South Beach Pharmacy, Inc., d/b/a Southpointe Pharmacy (Southpointe), was at all times material hereto, a pharmacy located in Dade County, Florida, and a provider under the Medicaid program. Respondent, Department of Health and Rehabilitative Services (DHRS), was and is the state agency responsible for regulating the Medicaid program in Florida. Pharmacies participating in the Medicaid program are subject to routine audits, which are coordinated by the DHRS Office of Program Integrity. In early 1989 a routine audit of Southpointe was conducted by the Professional Foundation for Health Care (PFHC) at the request of DHRS. Following that audit, DHRS reasonably determined that further investigation was warranted and asked PFHC to perform an audit referred to as an "aggregate analysis." PFHC performed the aggregate analysis audit as instructed and determined that an overpayment had been made to Southpointe. The PFHC audit was submitted to and reviewed for accuracy and correctness by the Office of Program Integrity. In August 1989, DHRS took proposed final agency action against Southpointe in the form of a letter which, among other things, demanded repayment of funds alleged to have been overpaid under the Medicaid program, assessed an administrative fine against Southpointe, and terminated Southpointe from the Medicaid program for two years. That letter was revised in September 1989 to change the amount of the alleged overpayment. The alleged overpayment was challenged by Southpointe. The matter was submitted to the Division of Administrative Hearings and assigned DOAH Case No. 89-6057. At the times pertinent to this proceeding DHRS had not adopted the "aggregate analysis" methodology by rule. Instead, DHRS relied on incipient, non-rule policy and attempted, without success, to explicate its reasons for relying on this methodology. The first time the "aggregate analysis" methodology was used in an effort to determine the overpayment by Medicaid to a pharmacy was in the case of David's Pharmacy v. Department of Health and Rehabilitative Services, DOAH Case No. 88-1668 (Final Order entered September 15, 1988). The Final Order entered in the David's Pharmacy case specifically recognized that DHRS was not entitled to rely on non-rule policy in imposing sanctions against a provider because of the wording of Section 409.266(11)(g), Florida Statutes (1989), which limits the imposition of sanctions against a Medicaid provider to situations where the provider is not in compliance with the Florida Administrative Code. Further, the Final Order in the David's Pharmacy case concluded that the aggregate analysis methodology was flawed and, consequently, could not be relied upon by DHRS in determining that an overpayment had been made. Although DHRS again attempted to rely on the aggregate analysis methodology in the audit of Southpointe, DHRS had not adopted the aggregate analysis methodology as a rule (even though there were no changes in the governing statute) and it did not cure all the defects in the methodology that were specifically raised by the Final Order in David's Pharmacy. The only material change in the aggregate analysis procedure between the time of the David's Pharmacy final order and the time it was used to audit Southpointe was the elimination of the use of a Medicaid percentage applied to the quantities of audited drugs. The Recommended Order submitted by the undersigned following the formal hearing in the underlying proceeding (DOAH Case No. 89-6057) found that DHRS had not adopted the "aggregate analysis" methodology as a rule and that DHRS had not explicated its policy in attempting to rely on this non-rule policy. The Recommended Order concluded that DHRS had failed to prove any overpayment to Southpointe. The Recommended Order also found that certain data relied on by PFHC in performing the aggregate analysis was unreliable, which resulted in the amount of claimed overpayment being overstated. While DHRS was not aware that this data was unreliable, this data merely affected the amount of the overpayment. It was DHRS's continued reliance on the aggregate analysis that led DHRS to the assertion that there had been an overpayment. DHRS, by its Final Order in DOAH Case No. 89-6057, rejected many of the facts and the conclusion contained in the Recommended Order. Instead, DHRS determined that there had been an overpayment to Southpointe, demanded repayment of the alleged overpayment, imposed an administrative fine in the amount of $250.00, and suspended Southpointe as a Medicaid provider for three months. Thereafter, Southpointe appealed DHRS's Final Order to the First District Court of Appeal. The First District Court of Appeal reversed DHRS and concluded, in pertinent part, as follows: . . . Therefore, as found by the hearing officer, the Department was proceeding not under any existing rule but rather under incipient policy. That finding was based upon competent and substantial evidence, and we hold it was a gross abuse of discretion for the Department to reject that finding of fact. * * * . . . [W]e agree with the hearing officer that HRS failed in its mission to support and defend the aggregate analysis with competent and substantial evidence. In an earlier final order issued by the Department, David's Pharmacy v. Department of Health and Rehabilitative Services, 11 FALR 2935 (HRS 1988), wherein aggregate analysis was utilized for the first time, the Department found HRS had not appropriately explicated this non-rule policy by its failing to produce evidence that would establish a rational, reasonable basis for the procedure. In the instant case, despite rather pat testimony to the effect that the aggregate analysis is indeed contemplated by the rule, it was shown that HRS had not checked a single Medicaid patient to determine if the medication had been dispensed, or a single physician to see if the medication had been prescribed. Robert Peirce testified that the only thing HRS had done since David's Pharmacy, was to delete the requirement of utilizing a "percentage of Medicaid sales" from the formula. As pointed out by Southpointe, none of the other shortcomings of aggregate analysis which were identified in the David's final order were remedied by HRS at the hearing below. For example, neither a beginning nor ending inventory had been taken into consideration, and no consideration was given to whether Southpointe had acquired additional drugs to augment its inventory by means other than direct purchase from its manufacturers 1/ DHRS has failed to establish that it was substantially justified in taking action against Southpointe based on the aggregate analysis methodology. There was no evidence to show that an award of fees and costs to Southpointe would be unjust in this case. Southpointe has become obligated to pay costs and attorney's fees in excess of $15,000.00, the maximum allowable recovery under the Equal Access to Justice Act. The parties stipulated that these costs and fees are reasonable. Petitioner is a prevailing small business within the meaning of Section 57.111, Florida Statutes, and has met all conditions precedent for such an award.
Conclusions An Administrative Law Judge of the Division of Administrative Hearings entered an Order Closing File and Relinquishing Jurisdiction in this proceeding. A copy of the Order is attached to this Final Order as Exhibit A.
Other Judicial Opinions REVIEW OF THIS FINAL ORDER PURSUANT TO SECTION 120.68, FLORIDA STATUTES, AND FLORIDA RULES OF APPELLATE PROCEDURE 9.030(b)(1)(C) AND 9.110, TO INITIATE AN APPEAL OF THIS ORDER, A NOTICE OF APPEAL MUST BE FILED WITH THE DEPARTMENT’S AGENCY CLERK, 2555 SHUMARD OAK BOULEVARD, TALLAHASSEE, FLORIDA 32399-2100, WITHIN 30 DAYS OF THE DAY THIS ORDER IS FILED WITH THE AGENCY CLERK. THE NOTICE OF APPEAL MUST BE SUBSTANTIALLY IN THE FORM PRESCRIBED BY FLORIDA RULE OF APPELLATE PROCEDURE 9.900(a). A COPY OF THE NOTICE OF APPEAL MUST BE FILED WITH THE APPROPRIATE DISTRICT COURT OF APPEAL AND MUST BE ACCOMPANIED BY THE FILING FEE SPECIFIED IN SECTION 35.22(3), FLORIDA STATUTES. YOU WAIVE YOUR RIGHT TO JUDICIAL REVIEW IF THE NOTICE OF APPEAL IS NOT TIMELY FILED WITH THE AGENCY CLERK AND THE APPROPRIATE DISTRICT COURT OF APPEAL. MEDIATION UNDER SECTION 120.573, FLA. STAT., IS NOT AVAILABLE WITH RESPECT TO THE ISSUES RESOLVED BY THIS ORDER. CERTIFICATE OF FILING AND SERVICE I HEREBY CERTIFY that the original of the foregoing has been filed with the undersigned Agency Clerk of the Department of Community Affairs, and that true and correct G LA copies have been furnished by U.S. Mail to each of the persons listed below on this 7 — day of QO. | elf Ah August, 2011. Agency Clerk By U.S. Mail The Honorable J. Lawrence Johnston Administrative Law Judge Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 Jeffrey Steinsnyder, Esquire Joseph M. Mason, Jr., Esquire Elizabeth Blair, Esquire Carole Joy Barice, Esquire Office of the Pasco County Attorney McGee & Mason, P.A. 7530 Little Road, Suite 340 101 South Main Street New Port Richey, Florida 34654 Brooksville, Florida 34601 Jacob D. Varn, Esquire McMillan Davis Fowler, White, Boggs, Banker, P.A. Post Office Box 534 Post Office Box 11240 Aripeka, Florida 34679 Tallahassee, Florida 32302
