Findings Of Fact Progressive American Insurance Company is a property and casualty insurance company. It markets auto insurance to drivers who are ordinarily non- insurable by standard insurance companies. The Company's claims organization includes 18 claims offices throughout the state, including the relevant Gainesville claims office. The Petitioner was hired as a claims office assistant on December 17, 1986. She worked in that capacity in the Gainesville office throughout the course of her employment. Claims office assistants are clerical employees who perform secretarial tasks, such as typing, filing and answering the telephone, and also perform insurance work related to the claims processing, such as personal injury protection (PIP) and small loss claims. Claims office assistants, such as the Petitioner, also provide support to the adjusters in the office by typing their dictation and taking down information on accident reports or loss reports, as well as creating files. The Gainesville claims office is a small branch office and as of December 1, 1986, was staffed by a Branch Manager, Douglas Helton, two claims adjusters and two claims office assistants, one of whom was the Petitioner. Douglas Helton was promoted to the position of Branch Manager in the Gainesville office in mid-1986. He hired Debbie Fuller and supervised her throughout her tenure with the Company. Progressive has adopted a business philosophy known as "management by objectives." Under this philosophy, each employee is assigned objectives which explain what is expected and the standards involved with the job. The employee's performance is then measured against those standards. Employees receive an overall numerical assessment of their performance on a 1-4 scale. The average score on performance evaluations in the Florida division of the Company has ranged from about 2.86 to 2.92. When the Petitioner was hired, she was placed in a three-month training plan by the Branch Manager and was assigned a set of objectives. Her performance was evaluated against these objectives at the end of 90 days, and she was given a 2.44 overall rating. Mr. Helton regarded her work as satisfactory at that time. The Petitioner was then assigned another set of three-month objectives. These objectives included the assignment to her of personal injury protection work, as well as small losses work for the first time. She was given individualized training by Helton and the other claims office assistant, Christine Bivens. She applied for and obtained a temporary license to do PIP claims work, which was valid from March of 1987 to March of 1988. She received another performance evaluation at the end of the second three-month period, with a score of 2.597. Mr. Helton, again, described her performance as satisfactory, although her score was below average. In June of 1987, Helton assigned the Petitioner another set of performance objectives, this time for six months. These objectives also included the assignment to her of PIP claims work. Her performance was evaluated again at the end of six months in December of 1987. This time, she scored 2.0, which is the lowest score an employee can receive before he or she is put on a 30-day performance probation, also known as "short term objectives." The Petitioner's performance was deficient because of non-timely processing of claims. Although her PIP case load was only about one-quarter of that of claims assistant, Christine Bivens, she allowed PIP files to "fall off her diary." This means that the medical bills involved were not being paid or timely paid. One such failure to pay medical bills actually resulted in a lawsuit being filed against her employer. When Mr. Helton reviewed some of her files in the process of preparing her performance evaluation, he discovered that most of the files had not been timely processed. She also received a poor rating for her work in typing dictation. Mr. Helton received complaints from all of the workers in the office concerning the Petitioner's typing skills and had orally counseled her in the past regarding this aspect of her work. Another major area of performance deficiency involved the Petitioner's failure to secure a permanent PIP and small loss license. She took the examination for the license and did not pass it. She was scheduled to take it again in November of 1987, but failed to do so. Mike Painter, the claims adjuster, had a bad experience with the Petitioner's work performance. He had a problem with her typing, which was characterized by a high level of inaccuracy and delay. He became sufficiently dissatisfied with her typing that he began doing his own typing. He discussed these problems with Mr. Helton on a number of occasions. He also had experience with the Petitioner taking down inaccurate information on loss reports. Mr. Painter found the Petitioner erratic in her attention to detail and that her work pace was significantly slower than the rest of the people in the office. Christine Bivens, another co-worker, also testified regarding the Petitioner's performance. Her initial performance during the first six months was acceptable, but then she began slowing down her work production. Because of this, Ms. Bivens had to put more time, herself, into the dictation typing and the loss reports She complained to Mr. Helton, as well; and Mr. Helton counseled the Petitioner concerning these deficiencies. After these counseling sessions, she would improve her performance for a short while; but the improvement was only temporary. Mr. Helton prepared Ms. Fuller's final performance evaluation around December 17, 1987. The two of them discussed the evaluation; and although she was not content with it, she ultimately accepted it. In the meantime, the Petitioner had become pregnant and began discussing the matter of maternity leave with Mr. Helton. In October or November of 1987, she had several conferences with him about the subject matter of her leave. Two of these conferences were attended by Christine Bivens. During the course of these meetings, Ms. Fuller requested a maternity leave of eight to 12 weeks. Mr. Helton told Ms. Fuller that she would not be provided a 12-week leave. Ms. Bivens testified that Mr. Helton told Ms. Fuller that he could not approve a 12-week leave. Sometime in December of 1987, Ms. Fuller began having premature contractions and told Mr. Helton she would not be able to work a full eight-hour day. Mr. Helton accepted that situation and told her she could work whatever hours per day she wanted to work. She thus began working five or six hour days. On December 17, 1987, Mr. Helton wrote a memorandum to the Human Resources Office of his Company, regarding Ms. Fuller's performance and her upcoming maternity leave. In that memorandum, he criticized her performance, writing that she demonstrated "minimal commitment to excellence and handles her responsibilities in a passive manner." He also noted that Ms. Fuller had requested a three-month leave of absence which he had refused. In this memorandum, Mr. Helton also indicated that he intended to hold her employment position open for her for a period of only four weeks. When he drafted this memorandum and prepared the Petitioner's performance evaluation, he gave some consideration to putting her on "thirty-day objectives." Under the circumstances of her imminent maternity leave, he decided that such an action would be inappropriate and assigned her objectives for May 17, 1988 instead. The Respondent has a policy concerning leaves of absence by which employees with less than one year of service are eligible for a four week leave of absence. Employees with between one and five years of service are eligible for a six-week leave. The Petitioner had one year of service, effective December 17, 1987. Therefore, she was qualified; and, indeed, the Respondent determined that she should have a six-week leave of absence related to her pregnancy. The Petitioner's supervisor, Mr. Helton, advised the Petitioner that she was not entitled to and would not receive a 12-week leave of absence, as she requested. Ms. Fuller also acknowledged in her testimony that Tammy Taylor, who worked in the Human Resources or personnel office of the Respondent, had informed her that she was entitled to a six-week leave of absence. Her colleague, Ms. Bivens, recalled that both Mr. Helton and Ms. Fuller had checked with the Human Resources office of Progressive and that both had learned that she was entitled to a six-week leave. Robin Hart, who worked in the Human Resources office at the time, told Ms. Fuller that she was entitled to and could take a six-week leave of absence and that any leave past that six-week period would be unapproved, as not being in accordance with Company policy. The Petitioner received a note from her treating physician on December 22, 1987 instructing her to discontinue her activities, including regular employment as of that date. Ms. Fuller initially testified at the hearing that she then met with Mr. Helton on that date, gave him the note and had a conversation with him concerning her leave of absence. She later changed her testimony, however, upon introduction by Progressive of evidence showing that Mr. Helton was on vacation on that date. She also changed her testimony regarding her last day at work. She had initially testified that the date was January 4, 1988, but following testimony by Christine Bivens, her co-worker, to the effect that her last day was December 29, 1987, she agreed that was her last day of work. Thus, she continued to work after her doctor had instructed her to cease her employment pending her delivery. Ms. Fuller, instead of personally discussing her leave with Mr. Helton on the final occasion before she actually left her employment, left a note for him on his desk while he was on vacation, along with her request for a 12-week leave of absence from January 4, 1988 through March 29, 1988. Upon his return from his Christmas vacation, Mr. Helton saw the leave request and reviewed it. He checked the box on the form marked "cannot approve" and wrote on the form "maximum allowed for 1 yr. employee is 4 weeks. Debbie requests excess of 12 weeks." Mr. Helton then submitted the leave of absence form to the Human Resources office in Tampa and conversed with Marilyn Kaschner of that office concerning the length of the requested leave and how long he should leave the Petitioner's job open for her. Ms. Kaschner informed him that the Petitioner was entitled to a six-week leave of absence based upon her tenure with the Company, and Mr. Helton agreed with that. That conversation occurred sometime between January 15th and the end of January of 1988. At approximately this time, Mr. Helton hired Wendy Rosenberg, as a full-time claims office assistant, and Renee Jackson, as a part-time claims office assistant. Ms. Fuller's replacement was required because the Gainesville office was very busy during the fall of 1987 and the early part of 1988. Ms. Rosenberg began employment on January 15, 1988, and Ms. Jackson was employed on January 25, 1988. Ms. Jackson was hired into a newly-approved part-time position, and Ms. Rosenberg replaced Ms. Fuller. Both employees were advised when they were hired that if Ms. Fuller returned upon the expiration of her maternity leave, she would have her choice of either the full-time or part-time positions which Ms. Rosenberg and Ms. Jackson were filling. In fact, Ms. Fuller did not return within the six-week time period. Mr. Helton subsequently contacted his supervisor, Jim Krahn; and they decided voluntarily to hold her position open for another week. She was eventually terminated, effective February 29, 1988, some nine weeks after her last day of work. Mr. Krahn at this time authorized Mr. Helton to permanently hire Ms. Rosenberg and Ms. Jackson. Ms. Fuller testified about a number of conversations she allegedly had with Mr. Helton during 1988. According to Ms. Fuller, the first one took place about the second week of January at the Gainesville office, attended by Ms. Fuller, Mr. Helton, Ms. Bivens and two claims adjusters in the office. Ms. Fuller maintains that Mr. Helton told her that he had turned in her "leave papers" and that things were fine and that there was no problem. Mr. Helton did not recall the conversation, but was positive that he would not have told her that everything was fine with her leave request because it was an excessive request. In any event, Ms. Bivens, who was present during the conversation, had no recollection of the tenor of it. However, under the circumstances under which the conversation apparently was made with a number of other employees present, it is unlikely that any in-depth discussion of the propriety of the leave request was entered into. In any event, Ms. Fuller had been informed otherwise, by the Human Resources office in Tampa, that she was only entitled to six weeks of leave. Both Mr. Helton and Ms. Fuller had conversations in March regarding her employment. Mr. Helton noted that the dates of the conversations were March 16 and 21, 1988, as he noted them on Ms. Fuller's termination form. During the first conversation, he advised Ms. Fuller that he did not have a position for her in his office. This is when Ms. Fuller learned of her ultimate termination. He did not have a conversation with her between February 29th and March 16th because he thought that Human Resources was going to send her a termination letter. The first conversation with her thus occurred on March 16th concerning the subject of her termination. Following this conversation, Ms. Fuller called Ms. Hart at the Human Resources office and informed her that Mr. Helton had guaranteed her a job when she wanted to return from maternity leave. Ms. Hart advised Mr. Helton of this representation and he denied it. Subsequently, on March 21st, there was an angry conversation between Mr. Helton and Ms. Fuller concerning what Mr. Helton believed to be Ms. Fuller's misrepresentation of his earlier statement concerning her job tenure and the availability of a position whenever she wanted to return. In any event, Mr. Helton, on March 21, 1988 executed Ms. Fuller's termination form and on the second page of the form, indicated she was ineligible for rehire. He considered her ineligible because her past performance bad been substandard and also because he felt that she had made misrepresentations to the Human Resources office concerning the conditions under which he had informed her that she could return to work. Accordingly, when there was later an opening in the Gainesville office for a claims office assistant, he did not consider offering Ms. Fuller that employment. Ms. Marilyn Kaschner testified about the company leave policy and statistical records of leaves of absence for the claims organization of Progressive. She reviewed and compiled a list of all leaves of absence for the last two and one-half years for the claims office portion of the company's operations in Florida. This list showed that eight employees, in addition to Ms. Fuller, had taken leaves of absence during that time period. Four of those leaves of absence were for childbirth. In each instance, the employee was allowed to return to her job. In those instances, the employees had taken leaves of absence which were in accordance with the company's leave of absence duration policy. It is also noteworthy that the Petitioner was accorded short- term disability insurance benefits during her leave of absence in accordance with company policy.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that the Petition of Debbie Fuller be dismissed. DONE and ENTERED this 4th day of December, 1989, in Tallahassee Leon County, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of December, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-480 Petitioner's Proposed Findings of Fact Accepted. Accepted. Accepted. Accepted, but subordinate to the Hearing Officer's findings on the subject matter. Rejected, as subordinate to the Hearing Officer's findings on the subject matter. Accepted. Accepted. Accepted. Accepted. Accepted, except for the last sentence. Rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected, as contrary to the Preponderant weight of the evidence and as subordinate to the Hearing Officer's findings of fact on the subject matter. Rejected, as contrary to the Preponderant weight of the evidence and as subordinate to the Hearing Officer's findings of fact on the subject matter. Rejected, as subordinate to the Hearing Officer's findings on this subject matter and as not itself material and dispositive. Rejected, as subordinate to the Hearing Officer's findings on this subject matter and as not itself material and dispositive. Rejected, as subordinate to the Hearing Officer's findings on this subject matter and as not itself material and dispositive. Rejected, as subordinate to the Hearing Officer's findings on this subject matter and as not itself material and dispositive. Respondent's Proposed Findings of Fact Accepted. Accepted Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. COPIES FURNISHED: John P. McAdams, Esq. CARLTON, FIELDS, WARD, EMMANUEL, SMITH & CUTLER, P.A. P.O. Box 3239 Tampa, FL 33601 Carla D. Franklin, Esq. P.O. Box 694 Gainesville, FL 32601 Dana Baird, Esq. General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570 Mr. Donald A. Griffin Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570
The Issue At issue in this proceeding is whether Respondent, Gainesville Woman Care, LLC, d/b/a Bread & Roses Well Woman Care (“Bread & Roses”), provided services in excess of the scope of its license by providing abortions to five patients beyond the first trimester of pregnancy, as alleged in the Administrative Complaint.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following Findings of Fact are made: AHCA is the state agency responsible for the licensing of abortion clinics and the enforcement of the statutes and rules governing their operations in Florida, pursuant to chapter 390 and chapter 408, part II, Florida Statutes. Bread & Roses is a women’s health care clinic licensed to provide first-trimester abortions pursuant to chapter 390, Florida Statutes, and Florida Administrative Code Chapter 59A-9. Kimberly Smoak is AHCA’s field office supervisor. She is based in Tallahassee and supervises the operations of AHCA’s field offices throughout the state. Kriste Mennella is an AHCA field office manager based in Alachua, who reports directly to Ms. Smoak. On or about August 5, 2015, Ms. Smoak directed Ms. Mennella’s office to conduct an unannounced “monitoring” survey of Bread & Roses and to send Ms. Smoak her survey report before the end of the day. Ms. Mennella personally conducted the survey. Ms. Mennella arrived at Bread & Roses at 12:45 p.m. on August 5, 2015, to conduct the survey. She requested and reviewed utilization reports and medical records for 16 patients for whom Bread & Roses had provided abortion services within the previous year. Section 390.0112(1) provides the following reporting requirement: The director of any medical facility in which any pregnancy is terminated shall submit a monthly report to the agency which contains the number of procedures performed, the reason for same, the period of gestation at the time such procedures were performed, and the number of infants born alive during or immediately after an attempted abortion. The agency shall be responsible for keeping such reports in a central place from which statistical data and analysis can be made. (Emphasis added). Chapter 390 does not define the terms “gestation” or “pregnancy.” Section 390.011(11) defines “third trimester” to mean “the weeks of pregnancy after the 24th week of pregnancy.” From this definition, it is possible to infer that the first trimester includes the first 12 weeks of pregnancy and that the second trimester includes the second 12 weeks of pregnancy. Consistent with this inferred definition, rule 59A- 9.019(14) provides as follows: (14) “Trimester” means a 12-week period of pregnancy. First Trimester. The first 12 weeks of pregnancy (the first 14 completed weeks from the last normal menstrual period). Second Trimester. That portion of a pregnancy following the 12th week and extending through the 24th week of gestation. Third Trimester. That portion of pregnancy beginning with the 25th week of gestation. (Emphasis added). Ms. Mennella found the following in the clinic’s utilization reports for five of the 16 patients in the survey sample: Patient #5: no last normal menstrual period (“LNMP”) recorded; ultrasound reflected 13 weeks of pregnancy. Patient #7: no LNMP recorded; ultrasound reflected 13.2 weeks1/ of pregnancy. Patient #8: no LNMP recorded; ultrasound reflected 13.4 weeks of pregnancy. Patient #9: no LNMP recorded; ultrasound reflected 13 weeks of pregnancy. Patient #15: no LNMP recorded; ultrasound reflected 13.4 weeks of pregnancy. During the survey, the clinic manager for Bread & Roses, who prepares the clinic’s utilization reports, explained to Ms. Mennella that the “weeks” reflected on Bread & Roses’ utilization reports reflected the length of pregnancy as counted from the first day of the LNMP. Therefore, all five of the patients’ abortions were within the 14-week window afforded by rule 59A-9.019(14)(a). Ms. Mennella documented her conversation with the clinic manager in her formal survey notes and in her August 5, 2015, formal survey report to Ms. Smoak. At the conclusion of the survey, Ms. Mennella reported to Ms. Smoak by telephone, though Ms. Mennella testified that she could not recall the details of the discussion. At 4:50 p.m. on August 5, Ms. Mennella telephoned Kristin Davy, the owner and director of Bread & Roses. Ms. Mennella told Ms. Davy that AHCA had determined that Bread & Roses had acted in violation of its license by performing second-trimester abortions, based on the clinic’s utilization reports and the medical records reviewed by Ms. Mennella during the on-site survey. Ms. Davy replied that AHCA’s conclusion was incorrect because the weeks and days recorded on the ultrasound reports measured from the first day of the LNMP, meaning that all five of the questioned procedures had been performed within the first trimester of pregnancy. After her discussion with Ms. Davy, Ms. Mennella submitted her formal survey report to Ms. Smoak. Ms. Mennella’s survey notes and her survey report to Ms. Smoak each documented Ms. Davy’s dispute of AHCA’s conclusion and her explanation of the ultrasound reports. At 6:15 p.m. on August 5, Ms. Mennella faxed a letter to Ms. Davy with the heading, “Notice of Activity Without Proper Licensure.” The letter stated that AHCA had determined that Bread & Roses was providing services beyond the scope of its license. The letter did not attach a copy of Ms. Mennella’s survey report nor any other document reflecting the specifics of AHCA’s allegations regarding the clinic’s operation. Ms. Mennella made a follow-up visit to Bread & Roses on August 19 to determine whether there had been any more procedures performed that appeared to be beyond the scope of the clinic’s license. Based on her review of the clinic’s files, she determined that there had not. On September 1, 2015, AHCA faxed to Bread & Roses a letter signed by Ms. Mennella reporting the findings of its survey and requiring the facility to file a corrective action plan. The letter was accompanied by a statement of deficiencies recorded during Ms. Mennella’s August 5 survey. The statement of deficiencies stated that Bread & Roses had performed services beyond the scope of its license as follows: For sampled patients #5, #7, #8, #9 and #15, no date was recorded for the last normal menstrual period (LMP); however, the ultrasound reflected weeks of gestation in excess of 12 as documented in the patients’ records. Ms. Mennella’s documentation of her conversations with the office manager and Ms. Davy were excised from the version of the survey report faxed to Bread & Roses on September 1, 2015. Ms. Mennella had no explanation for this deletion, and testified that she could not recall whether she told Ms. Smoak about the explanations offered by the office manager and Ms. Davy as to the meaning of the ultrasound reports. Ms. Mennella’s letter of September 1 directed Bread & Roses to submit a written corrective action plan to AHCA by the close of business on September 4, 2015. The letter stated that the corrective action plan must do the following, at a minimum: * Demonstrate procedures are in place to ensure that first trimester abortions are not performed: In excess of 14 weeks (up to but not including the 105th day) from the last normal menstrual period (LNMP), and in excess of the 12th week (up to but not including the 91st day) of gestation; or When LNMP is not determined or not documented, abortions are not performed beyond the 12th week (up to but not including the 91st day) of gestation. * Educate staff to ensure that when reporting pursuant to rule 59A-9.034, F.A.C., on the online reporting system, that the field titled “WEEKS OF GESTATION” is correctly completed using “weeks of gestation” as that phrase is used in rule 59A-9.019, F.A.C., and not erroneously using the last normal menstrual period. On September 3, 2015, one day prior to expiration of the deadline for submission of Bread & Roses’ corrective action plan, AHCA filed the Administrative Complaint that initiated this proceeding. The Administrative Complaint seeks to impose an administrative fine of $2,500 on Bread & Roses, or $500 for each instance in which AHCA alleges that the clinic performed an abortion during the second trimester, beyond the scope of its license. Bread & Roses submitted a responsive letter to AHCA shortly after 1:00 p.m. on September 4, 2015. The letter, written and signed by Ms. Davy, stated as follows, in relevant part: This letter responds to your letter dated September 1, 2015, which requested a summary of a corrective action plan demonstrating two things: First, that procedures are in place to ensure that first trimester abortions are not performed in excess of 14 weeks from the last normal menstrual period (LNMP), and Second, that staff are educated to report “WEEKS OF GESTATION”--in the monthly online ITOP reports, filed pursuant to rule 59A- 9.034, F.A.C.--“using ‘weeks of gestation’ as that phrase is used in rule 59A-9.019, F.A.C.,” and not using LNMP. As to the first requirement, Bread & Roses has always provided abortion care only through and including 13.6 weeks LNMP, or 13 completed weeks and 6 days as measured from LNMP. Our staff records the date that the woman remembers for her LNMP if and only if she remembers such a date (and if she had such a date: some women do not menstruate, such as when using certain contraceptives). If the woman did not have or does not remember the date of her LNMP, we do not include such a date in her record. Regardless of whether she remembers such a date, we do not determine the length of her pregnancy based on that memory. Rather, in accordance with the standard of care, we determine the length of her pregnancy based on ultrasound examinations. Please be aware that--again, as is absolutely standard practice throughout Florida and the U.S.--our ultrasound machine provides a length of pregnancy as measured from LNMP. In other words, based on the measurements of the embryo or fetus, the ultrasound machine produces an estimated length of pregnancy as measured from LNMP. Our corrective plan of action is to ensure that henceforth, in all medical records, all staff include “LMP” [sic] after each indication of length of pregnancy, including when staff record the results of an ultrasound examination. As to the second requirement, for clarity, here is the relevant regulation: “First Trimester. The first 12 weeks of pregnancy (the first 14 completed weeks from the last normal menstrual period).” 59A-9.019(14)(a), F.A.C. Based on your letter dated September 1, 2015, all staff will now report “WEEKS OF GESTATION” in the monthly online [Induced Termination of Pregnancy or “ITOP”] reports using “weeks of gestation” as measured not from LNMP, but from two weeks after LNMP. In other words, we will henceforth report an abortion at 13.1 weeks LNMP as an abortion at 11.1 weeks in the online field for “WEEKS OF GESTATION.” The ITOP form referenced in the letter is a monthly summary report filed by the clinic with AHCA regarding the timing of the abortion procedures performed at the clinic. Printed examples of the forms were submitted into evidence by AHCA. The form sets forth three reporting categories: “up to 12 weeks,” “13 to 24 weeks,” and “25 and over weeks.” The form, at least in the printed version submitted by AHCA, uses neither the term “pregnancy” nor “gestation.” At the hearing, Ms. Davy testified that she wrote the corrective action plan to ensure there would be no more misunderstanding about what Bread & Roses was doing. She was adamant that Bread & Roses was not performing second-trimester abortions. She stated that the clinic was not changing its medical standards, but was clarifying its reports to AHCA. From that point forward, Bread & Roses would include “LNMP” after every notation of length of pregnancy in its medical records, and its ITOP reports to AHCA would subtract the two-week LNMP interval. Ms. Davy testified that the corrective action plan was implemented on the day it was submitted to AHCA. Ms. Davy further testified that Bread & Roses had been submitting its reports to AHCA in the same manner for the ten years in which it has restricted its license to first- trimester abortions. She had always understood that “weeks of gestation” on the ITOP form was meant to be dated from the first day of the last normal menstrual period, which is standard industry practice. No other surveyor ever told her that she was filling the forms out incorrectly or had attempted to infer that the clinic was operating beyond the scope of its license. AHCA’s most recent routine survey of Bread & Roses, prior to the August 5 survey, had been performed on February 14, 2015. No deficiencies had been found. AHCA presented no evidence to counter Ms. Davy’s credible testimony that Bread & Roses had been submitting its ITOP reports in the same manner for the previous ten years without incident. AHCA presented no evidence to explain why it suddenly believed that Bread & Roses’ ITOP reports showed that the clinic was performing second-trimester abortions. Ms. Davy testified that Bread & Roses does not rely on a patient’s reported LNMP to measure length of pregnancy because such reports are inherently unreliable. Thus, whether or not a patient’s medical record includes a patient-reported LNMP is of no importance to the length of pregnancy reported on the ITOP. In all cases, Bread & Roses reports length of pregnancy as measured by the ultrasound machine. Bread & Roses owns the ultrasound machine used in its clinic. Ms. Davy testified that she had the machine calibrated at the time of purchase, about a year and a half ago. The machine is checked annually by North Florida Biomedical Services. Bread & Roses’ written policies and procedures include the following, under the heading “Sonography”: A sonogram will be performed on all patients. Bread and Roses performs abortion procedures in the first trimester, up to 13 weeks 6 days from the last menstrual period. A sonogram will determine how many weeks the patient is from the last menstrual period. If a patient is 14 weeks or over she will be referred to an alternate clinic. Mary E. Raum, M.D., is a gynecologist and has been the medical director at Bread & Roses for 15 years. She has practiced gynecology since 1983. Dr. Raum performs all of the ultrasound and abortion procedures done at Bread & Roses. She performed the ultrasound procedures on each of the five patients at issue in this case. Dr. Raum testified that the “ultimate determinant” as to whether a patient is in the first or second trimester is the ultrasound. She stated that the ultrasound is “definitive” and has become the standard of care for assessing the length of pregnancy. Dr. Raum testified that the ultrasound equipment she was using met standards for such equipment. She had no doubt that the equipment was functioning properly. AHCA offered no evidence to dispute Dr. Raum’s assessment of the ultrasound equipment. Dr. Raum described her manner of performing the ultrasound procedure as follows: The patient is laying [sic] flat. I always hope that I can get an adequate image abdominally so the patient doesn’t have to have a vaginal probe. But there are times when that is necessary. The abdomen is spread with the ultrasonic gel, and then the probe, which is called a transducer--that is what actually emits the sound waves which are higher than the human ear can hear . . . . [A]s soon as I see what I feel to be a good representative picture where I can measure the pertinent structures, it’s frozen, and then I select, on the possible measurements, the appropriate one. Early on, the most appropriate ones are either the gestational sac or the crown-rump length, which is measured from the top of the head to the end of the tailbone, if you will. There is an algorithm that is programmed into the ultrasound machines which then translates those two measurements into the date of the pregnancy from the first day of the last menstrual period. Dr. Raum testified as to the care she takes in performing the ultrasound measurement. If she is uncertain, she will take several measurements until she has the most accurate possible measurement. Dr. Raum frankly tells her patients that if the measurement is even one day beyond the 14-week limit, she will not perform the abortion. AHCA did not call any witness to explain the basis for the Administrative Complaint. The facts alleged are that the medical records for the five patients at issue do not contain an LNMP date, and that the sonogram in the medical record of each of the five patients reflects “weeks of gestation in excess of 12.” AHCA presented no evidence in support of its allegation concerning the length of gestation. It might have been reasonable at the time of Ms. Mennella’s survey for the agency to read the ITOP reports and the patient records and suspect a problem. However, it was not reasonable for the agency to disregard the reasonable explanations provided by the Bread & Roses office manager and by Ms. Davy. Ms. Mennella herself could not say why AHCA decided to file an administrative complaint alleging that Bread & Roses performed five second-trimester abortions, or why her documentation of her conversations with the office manager and Ms. Davy were excised from the final version of her survey report. AHCA’s theory of the case appears to be that the lack of a handwritten notation of “LNMP” in the five medical records at issue requires a conclusion that the days and weeks shown on the face of the sonogram reflect a length of pregnancy as measured from the date of “conception” or “gestation,” rather than the LNMP. This premise is unfounded, and the failure of the premise destroys the logic of AHCA’s theory. The ultrasound measures the same thing, whether or not the medical record contains a patient-reported LNMP date. The evidence presented at the hearing showed that the ultrasound dates the pregnancy from the LNMP, and that Bread & Roses’ ITOP reports were based on the ultrasound results. The missing LNMP notes are a red herring. AHCA’s case consisted largely of an argument premised on applying the dictionary definition of the term “gestation” to the medical records of Bread & Roses, which do contain a “Patient Procedure Record” that makes reference to “gestation” in the section regarding the physician’s examination of the evacuated tissue post-abortion. Indeed, if these abortions had been performed after 13 weeks of “gestation,” as that term is defined in some medical dictionaries,2/ then they would have been beyond the first trimester. However, Ms. Davy testified that, consistent with standard medical practice, the term “gestation” on the Patient Procedure Record means, and has always meant, length of pregnancy as measured from the first day of the LNMP. Ms. Davy stated that she has amended the Patient Procedure Record to add “LNMP” after every indication of length of pregnancy, in order to prevent any future misunderstandings. Dr. Raum testified that medical practitioners generally do not attempt to measure the length of pregnancy from the date of conception because that date is difficult, if not impossible, to determine in an accurate and reliable fashion, except perhaps in cases of in vitro fertilization. AHCA’s own rule appears to recognize this difficulty by defining the “first 12 weeks of pregnancy” as equivalent to the “first 14 completed weeks from the last normal menstrual period.” In light of the overwhelming factual evidence that Bread & Roses did not in fact perform second trimester abortions, the dictionary definition of “gestation” was an insufficient basis for finding a violation. AHCA made no attempt at a factual, as opposed to a logical, demonstration that these were second-trimester abortions. AHCA presented no testimony or documentary evidence refuting the credible evidence presented by Bread & Roses that the sonograms show on their face that the pregnancies for each of the five procedures at issue were first trimester pregnancies and within the scope of Bread & Roses’ license. AHCA has argued that it should be allowed to show, in the alternative, that Bread & Roses’ clinical records were not accurately documented because they showed more than 12 weeks of “gestation” for each of the five sampled patients, in both the sonograms and the Patient Procedure Record, in violation of rule 59A-9.031, which requires that clinical records must be “complete” and “accurately documented.” It is noted that, prior to the hearing, AHCA made a motion to file an Amended Administrative Complaint that would have included a second count alleging a recordkeeping violation. This motion was denied by Order dated February 26, 2016. At the start of the final hearing, AHCA renewed its motion while also arguing that it was not necessary to amend the Administrative Complaint in order to raise the recordkeeping issue. The motion was again denied, but AHCA was given some leeway to pursue its theory that the original Administrative Complaint embraced a recordkeeping allegation. Even if the Administrative Complaint could be said to include an allegation regarding inaccurate recordkeeping,3/ AHCA did not prove anything more than that it misread the clinical records and ITOP reports of Bread & Roses and then refused to listen to Bread & Roses’ explanation. The evidence established that Bread & Roses had submitted the ITOP forms to AHCA every month for ten years in substantially the same form with no indication from AHCA that there was a problem. The evidence also established that the term “gestation” in the Patient Procedure Records was used in its usual medical sense, i.e., the length of pregnancy as measured from the first day of the LNMP. Bread & Roses amended its Patient Procedure Record form and changed its method of reporting the ITOP not because of any recordkeeping failure on its part, but in an effort to appease AHCA and forestall any further misunderstanding.
Recommendation Based on the foregoing, it is, therefore, RECOMMENDED that the Agency for Health Care Administration enter a final order dismissing the Administrative Complaint against Gainesville Woman Care, LLC, d/b/a Bread & Roses Well Woman Care. DONE AND ENTERED this 28th day of April, 2016, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 28th day of April, 2016.
Findings Of Fact At the time of his separation, Charles Cutler had been employed by the Florida Department of Labor and Employment Security for approximately eight years, and had achieved permanent status in the Career Service. He was hired as a disabled veteran under a disabled veteran outreach program and worked as an employment interviewer at the Miami Downtown Civic Center office of the Division of Labor, Employment and Training. (Testimony of Charles Cutler, Testimony of Jean Wilson, Petitioner's Exhibit #1). During the months of May, June, July and August 1985, Mr. Cutler's attendance at work was highly sporadic during May, he logged 8 hours of annual leave, 8.5 hours of regular sick leave, 48.5 hours of leave without pay and 16 hours of "other" leave; during June he logged 87.3 hours of leave without pay; during July he logged 19 hours of regular sick leave and 103 hours of leave without pay; during August he didn't work at all. By letter dated August 16, 1985, signed by Ronald Villella, Director of the Division of Labor, Employment and Training, Charles Cutler was notified that he had abandoned his position effective the close of business on August 9, 1985. (Respondent's Exhibit #1; Petitioner's Exhibit #2). Kay Hilton was Mr. Cutler's supervisor at the time of his separation. She knew when he was absent and present and was responsible for receiving his leave requests. She furnished information on absences to the main office. At the hearing she verified the accuracy of the Monthly Absence Reports (Respondent's Exhibit #2) described in paragraph 2, above. Mr. Cutler was hospitalized with bleeding ulcers the evening of May 31, 1985. Surgery was performed on June 4th and he was discharged under doctor's care on June 7, 1985. Several months prior to the hospitalization, Mr. Cutler and Ms. Hilton discussed his medical condition and need for surgery. She felt that it was up to him to decide when to have it done. Mr. Cutler was absent from work the first two weeks in June. About every third day someone would call in to say that he was sick, but it was not until later that someone heard he had surgery. When he returned to work on the 17th of June he was asked for documentation of his illness. He took off work on June 19th to get the documentation. (Testimony of Kay Hilton, Respondent's Exhibit #1, Medical report). On July 2nd, Mr. Cutler did not return to work after lunch. He was charged with the two hours remaining in his regular work-day (2:00-4:00 p.m.), and the monthly absence report reflects those hours as sick leave. He also did not work on July 3rd, or Monday the 8th. The 4th and 5th were holidays. he did not call in sick but said when he returned that he had suffered stomach pains. Those days were also credited to sick leave. Mr. Cutler's last day at work was July 12, 1985. On Monday, the 15th, a lady called to say that he was sick, and on July 18th another worker in the office took a Call that he was sick. Ms. Hilton never received any requests for leave after that date. (Testimony of Kay Hilton, Respondent's Exhibit #2). Mr. Cutler was back in the hospital on July 15 and 16 with an infection from the earlier surgery. He was put ". . .under strict orders for limited activities for two weeks, ending 8/6/85. [sic]" (Medical report, testimony of Charles Cutler). Donald Vetromile is the Office Manager of the Job. Service Office, Division of Labor, Employment and Training at the Miami Downtown Civic Center. He supervises the office through subordinate supervisors. Kay Hilton is a supervisor of one of his units and he is, therefore, a second level supervisor of Charles Cutler. On August 5, 1985, Charles Cutler called him around 8:30 a.m. to ask about his position and he responded, "I don't know, we haven't heard from you. Bring in the medical documents and we will go from there." Cutler told him he would bring them the next day. He didn't. Mr. Vetromile talked to the Regional Manager, Darryl Rutz on August 9th and was told to prepare the paperwork for termination. He talked with Mr. Cutler by phone on August 12th or 13th and told him the matter was turned over to Darryl Rutz. Donald Vetromile keeps a log of his phone calls. He testified both in the Respondent's case in chief and as a rebuttal witness that he did not tell Charles Cutler on August 5th that he was being terminated. (Testimony of Donald Vetromile). Charles Cutler's account of the conversation on August 5th is substantially different. He claims that Vetromile told him the termination had been processed and he would have to discuss the matter with Darryl Rutz. He claims he called Mr. Rutz' office and was told he was out of town. Mr. Cutler also claims that the medical report was delivered to Vetromile's secretary by his (Cutler's) wife on August 6th. He admits that he did not appear for work on August 7, 8 or 9th, but claims that this was based on his belief that he was already fired. (Testimony of Charles Cutler). Darryl Rutz confirmed that he had not commenced termination of Charles Cutler as of August 5th. He was in town but on jury duty on August 5th. He was in the office from August 6 through 9, and was in Tallahassee on August 12 and 13th. (Testimony of Darryl Rutz). Charles Cutler was aware of the abandonment of position provision of the Career Service rules and signed a statement to that effect on Pebruary 11, 1985. (Respondent's Exhibit 1). Mr. Cutler's account of the August 5th conversation with Donald Vetromile and attempt to contact Darryl Rutz, conforms to the substantiating evidence for the following Monday's conversation (on August 12th) when he was told that he was being terminated and Darryl Rutz was out of town. His account of the events of the week of August 5 through 9 is simply not credible. He produced no witnesses to substantiate his claims, even though the person who allegedly delivered the medical report was his wife. Moreover, the date of 8/9/85, which appears in the lower left corner of the second page of his medical report, is inconsistent with his statement that the report was given to Vetromile's secretary on August 6th. Without some substantiating evidence, or at least some basis for a reasonable belief that he was already terminated on August 5th, the Petitioner's sole excuse for failing to appear for work the week of August 5 through 9, is insufficient. The medical report established that his period of limited activity ended on August 6th.
Recommendation That the Department of Administration enter a final order finding that Charles Cutler abandoned his position with the Division of Labor, Employment and Training and therefore, has resigned from the Career Service. DONE and ORDERED this 10th day of February, 1986, in Tallahassee, Florida. MARY W. CLARK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of February, 1986. COPIES FURNISHED: Kenneth Hart, Esquire General Counsel Montgomery Bldg., Suite 131 2562 Executive Center Circle, East Tallahassee, Florida 32301 Mr. Charles Cutler 654 N. W. 10th Street Miami, Florida 33136 GiIda Lambert, Secretarv Department of Administration 435 Carlton Building Tallaha~see, Florida 32301 Augustus D. Aikens, Esquire General Counsel Department of Administration 530 Carlton Building Tallahassee, Florida 32301 APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Pact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Rejected as contrary to the substantial weight of evidence. Adopted in substance in paragraph 4. Rejected. The testimony of this witness was corroborated by other testimony and was found credible. Rejected. The testimony of this witness was found credible. As stated in the Background and Procedural Matters in the Recommended Order, the Medical Record was considered but the letter was not. Rejected as contrary to the weight of evidence. Rejected as contrary to the weight of evidence. Rulings on Respondent's Findings of Fact Adopted in paragraph 1. Adopted as to Petitioner in paragraph 10. The finding as to all employees is irrelevant. Adopted in paragraphs 2 and 3. Adopted in paragraph 5. Adopted in substance in paragraph 7. Adopted in paragraph 7. Adopted in paragraph 11. Adopted in paragraph 8. Adopted in paragraph 7. Rejected as unnecessary. Adopted in substance in paragraph 11.
The Issue The issue in this case is whether Respondent, Sandra Blankenship, committed the violations alleged in an Amended Administrative Complaint issued by Petitioner, the Department of Health, and, if so, what disciplinary action should be taken against her.
Findings Of Fact The Parties. The Department is the agency in Florida responsible for regulating the practice of midwifery pursuant to Chapters 20, 456, and 467, Florida Statutes (2004).6 Ms. Blankenship is and has been at all times material hereto a licensed midwife in the State of Florida, having been issued license number MW 0091. Ms. Blankenship finished her training in May 1998 and received her Florida midwifery license effective July 7, 1998. Patient S.B. Patient S.B., who was 34 years of age, having been born on January 22, 1964, visited Ms. Blankenship, who was then practicing midwifery at Tree of Life Maternity Services, Inc. (hereinafter referred to as "Tree of Life"), in late December 1998. Patient S.B. went to Tree of Life because she was pregnant and was highly motivated to have an out-of-hospital vaginal birth. The purpose of her visit to Tree of Life was to arrange for prenatal and delivery services. This was not Patient S.B.'s first pregnancy. She had given birth to a son on September 28, 1995. That delivery was made by cesarean section (hereinafter referred to as "C- Section") after a long attempt at vaginal delivery. Patient S.B. was in labor between 24 and 30 hours before the C-Section was performed. Patient S.B. and Ms. Blankenship discussed at length the services Patient S.B. would receive. Patient S.B. was asked questions about her medical history, regular and obstetrical, which she answered. In particular, Patient S.B. informed Ms. Blankenship of the difficult birth of her son, including the fact that he had been delivered by C-Section.7 Following her initial visit, Patient S.B. began receiving prenatal care at Tree of Life on a monthly basis initially and, as her "due date" for her baby's birth approached, more frequently. During the early morning hours of July 9, 1999, Patient S.B. began having labor pains. Accompanied by her husband, Patient S.B. arrived at Tree of Life at approximately 6:00 a.m. She was having moderate contractions, four to five minutes apart, and her cervix was dilated five centimeters. Patient S.B. was monitored every hour after her arrival. From approximately 12:45 p.m. until 3:00 p.m., Patient S.B. relaxed in a tub of water. Part of that time she was noted to be sleeping. Her contractions continued to be moderate. At 3:00 p.m., Patient S.B. exited the tub. Between her arrival at 6:00 a.m. and 7:45 p.m., S.B.'s cervix had dilated as follows: 6:00 a.m. 5 to 6 centimeters 11:00 a.m. 7 centimeters 12:30 p.m. 8 centimeters 3:00 p.m. 9 centimeters 7:30 p.m. 9 centimeters 7:45 p.m. 9 centimeters In order for delivery to occur, the mother's cervix must be dilated ten centimeters, which is referred to as being "complete." Once the mother becomes complete, the baby's head, absent obstruction, should be able to move past the mid-point of the pelvis. A baby's progress is measured, both before and after the mother becomes complete, from the mid-point of the pelvis, which is the narrowest part of the mother's cervix. The location of the baby's head above the mid-point of the pelvis is measured in centimeters and is referred to as "minus stations." Therefore, if the baby's head is two centimeters above the mid- point, it is said to be at "minus-two station." The location of the baby's head below the mid-point of the pelvis is also measured in centimeters and is referred to as "plus stations." Therefore, if the baby's head is two centimeters below the mid- point, it is said to be at "plus-two station." When Patient S.B. became complete is not specifically noted on the Labor Sheet or Progress Notes kept by Ms. Blankenship during Patient S.B.'s attempted delivery. Nowhere did Ms. Blankenship note specifically that Patient S.B. was "complete" or dilated ten centimeters. Neither party proved precisely when Patient S.B. was dilated to ten centimeters, or complete. Dr. Gichia believed that Patient S.B. was complete at approximately 8:00 p.m. Dr. Gichia's opinion was based, in part, upon a note indicating that Patient S.B. was at plus-one station at 7:25 p.m. Dr. Griffin's reliance upon the note, however, is misplaced. It is doubtful how accurate Ms. Blankenship's estimates of the stations reached by the baby were, based upon the fact that she noted that the baby's head had reached a plus- three or plus-four station by 11:30 p.m., but the baby's head was only at a plus-one station when Patient S.B. was later examined in the hospital by Dr. Neil Boland. Dr. Gichia also based her opinion on a note that Ms. Blankenship had had Patient S.B. start pushing at 8:00 p.m. Dr. Gichia concluded that Patient S.B., if she were pushing, was complete and had, therefore, entered what is referred to as "second stage labor." Again, Dr. Gichia's reliance on the 8:00 p.m. note is misplaced. As explained by Ms. Blankenship, Patient S.B. had indicated at approximately 8:00 p.m. that she had the urge to start pushing. Accordingly to Ms. Blankenship, Patient S.B. was still dilated to only nine centimeters, but she believed that, with pushing, she would become complete. After allowing Patient S.B. to make some effort to push, Ms. Blankenship determined that her effort was poor and, therefore, instructed her to stop for a while. While she wrote on her Labor Sheet that she was having Patient S.B. rest for "20 minutes," in fact, Patient S.B. rested much longer, not beginning to actively push again until 9:30 p.m. Although the precise point in time when Patient S.B. became complete was not proved, it can be said that it did take place at some point after 7:25 p.m. and before, or at, 9:30 p.m. This conclusion is supported by Dr. Boland, who assumed that Patient S.B. began second stage labor at 9:30 p.m. rather than attempt to identify a precise earlier point in time.8 Although the accuracy of the stations of the baby's location noted by Ms. Blankenship are questionable and not supported by the weight of the evidence,9 Ms. Blankenship genuinely believed that the baby was at the following stations at the noted times: 7:25 p.m. plus-one station 9:30 p.m. plus-two station 11:30 p.m. plus-three/four station "with pushes" At midnight Ms. Blankenship informed Patient S.B. that, if she did not deliver by 12:30 a.m., July 10th, she would have her transported to a hospital due to maternal exhaustion. Patient S.B. agreed. At 12:25 a.m. a "911 call" was made to arrange to have Patient S.B. transported to a local hospital. She was picked up at 12:30 a.m. Patient S.B. was not attended to by a physician until 1:30 a.m., an hour after leaving Ms. Blankenship's care. Failure to Progress in Descent. Although testimony was offered at the final hearing concerning whether Patient S.B. should have delivered within two hours of beginning stage two labor, the only alleged deficiency in Ms. Blankenship's treatment of Patient S.B. contained in the Administrative Complaint is that "Patient S.B.'s second stage of labor exceeded two (2) hours without progress in descent (the downward movement of the baby)." Due to this alleged deficiency, the Department concluded that Ms. Blankenship violated Florida Administrative Code Rule 64B24-7.008(4)(i)1, when she failed to consult with, or refer or transfer Patient S.B. to, a physician. Ms. Blankenship believed that, based upon her conclusion that the baby had moved from plus-two station at 9:30 p.m. to a plus-three or plus-four station at 11:30 p.m., Patient S.B., after beginning second stage labor, had progressed in descent and, therefore, her referral to a physician was timely. The term "progress in descent," however, is a technical term which in the practice of midwifery requires more than just the movement of the baby which Ms. Blankenship mistakenly believed she was witnessing. Based upon standards established by the American College of Obstetricians and Gynecologists (hereinafter referred to as the "ACOG"), for, among other things, the practice of midwifery, progress in descent after two hours contemplates that, once a mother becomes complete, the baby should be born within two hours or, if not, that the midwife will consult with, or refer or transfer the mother to, a physician. Ms. Blankenship failed to comply with the ACOG acceptable definition of progress in descent. Assuming that Patient S.B. became complete as late as 9:30 p.m., she was not transferred to the hospital until 12:30 p.m., three hours later, and was not seen by a physician until 1:30 p.m., four hours later. While Ms. Blankenship believed that the baby's head was moving downward during this time, that perceived movement did not constitute "progress in descent." Malpractice Insurance. The parties stipulated that Ms. Blankenship did not have malpractice insurance from February 24, 1999, to July 10, 1999, and that she did not inform Patient S.B. that she did not have malpractice insurance while Patient S.B. was in her care. Ms. Blankenship did not, however, intentionally deceive Patient S.B. Rather, she had incorrectly believed that her malpractice insurance had been maintained by a business associate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department: Dismissing Count I of the Amended Administrative Complaint; Finding that Sandra Blankenship violated Section 467.203(f), Florida Statutes, as alleged in Count II of the Amended Administrative Complaint; and Suspending Ms. Blankenship's midwifery license for a period of one year from the date the final order and placing her license on probation for two years thereafter. DONE AND ENTERED this 18th day of February, 2005, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 18th day of February, 2005.
Findings Of Fact In July 1985 Petitioner Health Quest Corporation (hereinafter "Health Quest") filed an application with Respondent Department of Health and Rehabilitative Services (hereinafter HRS") seeking a certificate of need (hereinafter "CON") for a 120-bed nursing home facility in Dade County, Florida. Petitioner's application, designated by HRS as CON Action No. 4207, was denied, and Petitioner timely filed a petition requesting a formal hearing on such denial, pursuant to Section 120.57(1), Florida Statutes. All other applicants for nursing home CONs in July 1985 either failed to request Section 120.57(1) hearings or dismissed their previously-consolidated Section 120.57(1) petitions prior to the final hearing. Health Quest is the only applicant, therefore, in the July 1985 "batching cycle" in Dade County The parties stipulated prior to the final hearing that "numeric need" is the only issue to be resolved in this proceeding. The term "numeric need" refers to need as calculated pursuant to Rule 10-5.011(1)(k), Florida Administrative Code. Petitioner's disagreement with Respondent concerning the proper calculations under Rule 10-5.011(1)(k), pursuant to a stipulation during the final hearing, is limited to only one variable: the correct number of "approved beds," i.e., beds which have not been licensed but which have been approved by issuance of a CON. The disagreement between the parties concerning the correct number of approved beds for purposes of calculations under Rule 10-5.O11(1)(k) concerns the applicability of Section 381.713(4), Florida Statutes (1987). The provisions of Section 381.713(4) require that certain CONs be excluded from the inventory of approved beds for purposes of calculations under Rule 10-5.011(1)(k) in certain cases. Petitioner contends that CON #2741 issued to Health Care and Retirement Corporation (hereinafter "HCR"), CON #2450 issued to Health Quest and CON #3024 issued to Florida Convalescent Center (hereinafter "FCC") should be excluded pursuant to Section 381.713(4) from the approved bed inventory for purposes of calculations under Rule 10-5.011(1)(k). Each of those CONs is for a 120-bed facility and, therefore, according to Petitioner, a total of 360 beds should be excluded from the approved bed inventory. HRS admits that exclusion of CON #2741 and CON #2450 from calculations under Rule 10-5.011(1)(k) would result in sufficient numeric need to approve Health Quest's application. Although HRS was not specifically asked the same question regarding CON #3024, the treatment of that CON is indistinguishable from the other two. Based upon the above stipulations of the parties, the only issue to be resolved herein is whether CON #2741, CON #2450, and CON #3024 are required under Section 381.713(4) to be excluded from calculations under Rule 10.5- 011(1)(k) for purposes of this case. SETTLEMENT OF DOAH CASE NO. 85-2991 CON #2741 was issued by HRS to HCR on June 7, 1985, for a 120-bed nursing home in Dade County. CON #2450 was issued to Health Quest on March 12, 1985, for a 120-bed nursing home in Dade County. CON #3024 was issued to FCC on February 4, 1985, for a 120-bed nursing home in Dade County. Forum Group, Inc. (hereinafter "Forum") applied in January 1985 for CON #3893 for nursing home beds in Dade County. Forum's application was denied, and Forum petitioned for a Section 120.57(1) hearing to dispute such denial. While the Section 120.57(1) proceeding on Forum's application for CON #3893 was pending, Forum filed a petition for a Section 120.57(1) hearing to dispute the issuance of the CONs referred to in the preceding paragraph, as well as others. HRS dismissed Forum's petition by final order on January 21, 1987. Forum appealed the Department's dismissal of its petition contesting the Dade County CONs. The appeal was designated by the First District court of Appeals (hereinafter "DCA") as Case No. BS-128. Forum filed a Notice of Voluntary Dismissal with the DCA in Case No. BS-128 on July 23, 1987. The Notice of Voluntary Dismissal states that the dismissal of the appeal is based upon the terms of the Stipulation and Settlement Agreement, which is dated July 14, 1987, providing for the award of a CON to Forum. The Stipulation and Settlement Agreement is attached as an exhibit to the Notice of Voluntary Dismissal. The Notice of Voluntary Dismissal also states that the basis for the settlement was the applicability of Section 381.713(4) to the CONs issued to Health Quest, HCR and FCC, which were the subject of Forum's challenge. The Stipulation and Settlement Agreement attached to Forum's Notice of Voluntary Dismissal is a settlement of DOAH Case No. 85-2991, the consolidated Section 120.57(1) proceeding involving three applicants for nursing home beds in Dade County in January 1985. The applicants other than Forum were Hillhaven Convalescent Center, Inc. (hereinafter "Hillhaven") and Manor Care, Inc. (hereinafter "Manor Care"). Hillhaven had applied for CON No. 3894; Manor Care had applied for CON No. 3900. The style of DOAH Case NO. 85-2991 is Hillhaven Convalescent Center, et al. v. DHRS. The Stipulation and Settlement Agreement in DOAH Case No. 85-2991, in part, states as follows: HRS . . . issued Certificate of Need Nos. 2450, 2741 and 3024 for a total of 360 beds in Dade County. A Petition seeking to contest the validity of these CONs, among others, was filed after February 14, 1986, by Forum. Section 381.713(4) . . . has recently become law. . . . The parties hereto agree that this provision is applicable to CON Nos. 2450, 2741 and 3024. The Stipulation and Settlement Agreement in DOAH Case No. 85-2991 was signed for HRS by John Rodriguez as counsel and by J. Robert Griffin, M.A., J.D., Deputy Assistant Secretary, Office of Regulation and Health Facilities. Griffin is the senior official in the HRS CON office. Paragraph 7 of the Stipulation and Settlement Agreement in DOAH Case No. 85-2991 provides that each signatory to the agreement represents "that he/she is vested with full power and authority to execute this Stipulation and Settlement Agreement on behalf of his/her client." DOAH Case No. 85-2991 was not settled on the basis of Rule 10- 5.011(1)(k)(2)(j), Florida Administrative Code. Factually, there was no basis for approval of CONs #3893, #3894 and #3900 under subsection (k)(2)(j). The HRS CON files for CONs #3893, #3894 and #3900 each contain an identical document referred to as a "Reconsideration Memorandum." A reconsideration memorandum is a document used to record HRS' re-review of an application based upon newly discovered facts. The Reconsideration Memorandum, dated June 25, 1987, is a memorandum from Elizabeth Dudek, a CON review supervisor, to Robert Griffin, HRS' senior CON official. The Reconsideration Memorandum refers to the CON applications filed by Hillhaven, Manor Care and Forum for Dade County in January 1985, noting that there was no numeric need and that no special circumstances were presented. The memorandum, however, recommends that CONs be issued to Hillhaven, Manor Care, and Forum based upon the applicability of Section 381.713(4) to CONs #2450, #2741 and #3024. The Reconsideration Memorandum was the basis for settlement of DOAH Case No. 85-2991, and the Reconsideration Memorandum in fact constituted the basis for HRS' approval of CON Nos. 3893, 3894 and 3900. Further, HRS acknowledged, through Mr. Griffin, that DOAH Case No. 85- 2991 was settled on the basis of Section 381.713(4). Therefore, it is clear that HRS is acknowledging that the $50,000 expenditure requirement of Section 381.713(4) was satisfied as to CONs 2450, 2741 and 3024, and that the beds authorized by those CONs were not licensed as of June 17, 1987, i.e., the effective date of Section 381.713(4). 23. On September 4, 1987, R. Terry Rigsby, counsel for Forum in DOAH Case No. 85-2991, wrote to John Rodriguez, counsel for HRS in both that case and this case. The letter is stamped as having been received by HRS Legal Services on September 8, 1987. The letter refers to DOAH Case No. 85-2991 and states: Per your request I have revised the Stipulation and Settlement Agreement previously entered into among all parties to this proceeding in order to delete the reference to the Health Quest language passed during the 1987 session. I am enclosing a copy for you and . forwarding the original to Joe Bianculli for his signature. The reference in the letter to "the Health Quest language", means Section 381.713(4), which is common referred to as the "Health Quest amendment." The parties in DOAH Case No. 85-2991, at some date after September 8, 1987, entered into a new Stipulation and Settlement Agreement. The agreement identifies no basis for the settlement other than the bare assertion that compliance with statutory and rule criteria has been demonstrated. The new agreement is falsely dated July 14, 1987, i.e., purports to have been executed in July although in fact it was not executed until September. Although the second agreement is attached to the final order entered by HRS in DOAH Case No. 85-2991, the first agreement executed in July is the basis on which DOAH Case No. 85-2991 was settled, not the second agreement. HRS' counsel in the case involving the January 1987 batching cycle in Pinellas County, Lee Elzie, stated during that case, in the presence of the Hearing Officer, that Section 381.713(4) had been applied in settlement in Dade County. HRS in fact settled Case No. 85-2991 on the basis of the applicability of Section 381.713(4) to CONs #2450, #2741 and #3024. SETTLEMENT OF DOAH CASE NO. 85-2639 On February 13, 1985, HRS issued CON #2379 to Beverly Enterprises- Florida, Inc., (hereinafter "Beverly") and CON #2976 to FCC; each CON authorized a 120-bed nursing home in Pinellas County. On February 13, 1985, HRS issued CON #2978 to Health Quest for a 120-bed nursing home in Pinellas County. In January of 1985, applications for nursing home CONs in Pinellas County were filed by HCR and various other applicants. Denial of those applications gave rise to the consolidated Section 120.57(1) proceeding styled as Imperial Palms Apartments, et al. v. DHRS, et al., DOAH Case No. 85-2639. In its Proposed Recommended Order submitted in DOAH Case No. 85-2639 on May 18, 1987, HRS contended that pursuant to Rule 10-5.011(1)(k) there was a need for only 159 beds for the Pinellas County January 1985 batching cycle. Diane D. Tremor, the Hearing Officer in DOAH Case No. 85-2639, issued a memorandum dated June 10, 1987, to the parties in DOAH Case No. 85-2639, asking counsel to advise her as to the applicability of Section 381.713(4). Lesley Mendelson, counsel for HRS in DOAH Case No. 85-2639, responded to Hearing Officer Tremor's memorandum by a letter dated June 12, 1987, stating that Section 381.713(4) was not applicable because "there were no proceedings initiated under the APA against the beds counted as approved in this case after February 14, 1986. . . . No one can contest that fact." On June 16, 1987, HCR filed a petition contesting the validity of CON #2379, #2976, and #2978, (as well as CON #2975, which is not material). Section 381.713(4) became law on June 17, 1987. By letter dated June 26, 1987, W. David Watkins, counsel for one of the applicants in DOAH Case No. 85-2639, wrote to Hearing Officer Tremor to advise that Section 381.713(4) required the exclusion of CON #2379, #2976, and #2978 from the approved bed inventory for purposes of calculations under Rule 10-5.011(1)(k) in the Imperial Palms case. Mr. Watkins attached to his letter a copy of the HCR petition and a copy of "a document obtained from the DHS Monitoring Office indicating the date of issuance of each CON as well as the amount of expenditures made by each applicant to date." The Watkins letter stated, and the HRS document represented, that more than $50,000 (exclusive of attorney fees) had been expended in reliance on CON #2379, #2976 and #2978. On July 13, 1987, Hearing Officer Tremor entered an Order to Counsel for the Department of Health and Rehabilitative Services to Show Cause in DOAH Case No. 85-2639 within seven days why HRS should not admit that the documents attached to the Watkins letter should be considered authentic and accurate, or, alternatively, why HRS should not admit (1) that CONs #2379, #2976, and #2978 were approved prior to February 14, 1986, but remained unlicensed as of June 17, 1987; and (2) that the holders of CONs #2379, #2976, and #2978 had each expended in excess of $50,000 in reliance upon their approvals. On July 28, 1987, Hearing Officer Tremor entered an order in DOAH Case No. 86-2639 reopening the record "for the receipt of evidence concerning the impact of new legislation upon the ultimate issue of numeric need . . . ." The Order provides that it would be necessary to determine whether the holders of CONs #2379, #2976 and #2979 had expended in excess of $50,000 in reliance upon their approvals, and orders counsel for all the parties to consult and agree, within 10 days, as to either a method of adducing such evidence without hearing or several acceptable dates for scheduling the reopening of the hearing. On September 11, 1987, the parties executed a Settlement Agreement in DOAH Case No. 85-2639. That Settlement Agreement was memorialized by HRS in its Final Order entered on November 2, 1987. The Settlement Agreement and the Final Order in DOAH Case No. 85-2639 identify no basis for the Department's action in settling that case. The Final Order in DOAH Case No. 85-2639 approves a total of 477 beds, notwithstanding HRS' position in that cause that only 159 beds were needed. Utilizing Rule 10-5.011(1)(k) for purposes of calculating bed need for the January 1985 batching cycle in Pinellas County, i.e., the calculations applicable to DOAH Case No. 85-2639, reveals that if the calculations specified by HRS in its proposed recommended order filed in that cause are modified by excluding CONs #2379, #2976 and #2978 from the inventory of approved beds, the numeric need under Rule 10-5.011(1)(k) is 483 beds. There is no method of calculating a bed need of approximately 477 beds for the January 1985 batching cycle in Pinellas County other than by excluding CONs #2379, #2976 and #2978 from the inventory of approved beds. HRS' settlement of DOAH Case No. 85-2639 was in fact based on recognition that Section 381.713(4) required exclusion of CONs #2379, #2976 and #2978 for purposes of need calculations under Rule 10-5.011(1)(k). SETTLEMENT OF DOAH CASE NO. 85-2931 HRS settled DOAH Case No. 85-2931 by issuance of two 60-bed CONs to HCR and Beverly Enterprises based on applications filed in January 1985 for Subdistrict 2 of HRS District IV, which subdistrict consisted of Baker County, Clay County, and Southwest Duval County. HCR had previously filed a petition contesting the issuance of CON #2696 issued earlier in that subdistrict. Based on the Department's established practices and policies for computing bed need under Rule 10-5.011(1)(k), there was no method by which a need for 120 beds could have been calculated in DOAH Case No. 85-2931 other than by exclusion of CON #2696 from the inventory of approved beds pursuant to Section 381.713(4). HRS in fact settled DOAH Case No. 85-2931 based on exclusion of CON #2696 from the approved bed inventory pursuant to Section 381.713(4). THE ISSUE OF TIMELINESS The enactment of Section 381.713(4) was due in large part to lobbying by Health Quest. One of Health Quest's purposes in lobbying for the bill, as known to legislators and HRS during the spring of 1987 when the bill was under consideration, was to protect the CONs challenged by Forum in DCA Case BS-128 from the risk presented by Forum's challenge. FCC, having been challenged by Forum as to the validity of CON #3024 in Dade County, also was very active in such lobbying. The bill was understood by lobbyists and legislators to provide protection for CONs against "late" challenges, i.e., challenges initiated after the CON-holder believed the CON to be safe from challenge. One of the considerations in the drafting of the bill was CON #3278 issued to Health Quest for Sarasota County in October of 1985. Health Quest's CON #3278 was challenged by later-batched applicants in April of 1986, approximately six months after the CON had been issued; despite such passage of time, the challenges to CON #3278 were held by Hearing Officer William C. Sherrill, Jr., in his Order on Consolidation and Comparative Review issued January 21, 1987, in DOAH Case No. 86-0050, not to be untimely. Section 381.713(4) was later acknowledged by HRS to require the exclusion of CON #3278 in calculating need under Rule 10-5.011(1)(k) for the July 1985 batching cycle in Sarasota County. The parties who challenged CON #3278 had actual notice that CON #3278 had been issued, but were held by Hearing Officer Sherrill not to have waived the right to contest the issuance of CON #3278 by failure to initiate proceedings within 30 days of receipt of such notice. At the time Section 381.713(4) was under consideration, there was substantial doubt in the health planning community whether a CON challenge such as that filed by Forum as to CONs #2450, #2741 and #3024 was barred by untimeliness. Eliminating the risk presented by such doubt, specifically with reference to Forum's petition in Dade County, was one of the purposes for which Section 381.713(4) was written and passed. Lee Elzie, counsel for HRS in the DOAH case involving the January 1987 batching cycle in Pinellas County, admitted during proceedings in that case, before Hearing Officer Diane D. Tremor, that Section 381.713(4) had been intended to apply to Dade County. No "notice of litigation" was published in the Florida Administrative Weekly concerning the DOAH proceedings involving the denial or approval of CONs #3450 and #2741. In the "Correction Notice" published in the Florida Administrative Weekly Vol. 11, No. 32, August 9, 1985, Page 3118, HRS advised that no party could challenge the issuance of CON #2741 since the CON had been issued in settlement of a DOAH case and therefore constituted final agency action. CON #2450 was also issued in settlement of a DOAH case.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered granting Petitioner's January 15, 1985 application for a certificate of need for a 120-bed nursing home in Dade County, Florida, bearing CON #4207. DONE and RECOMMENDED this 18th day of October, 1988, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of October, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1351 Petitioner's proposed findings of fact numbered 1-16, 19-25, 30-41, 45, 48-50, and 56-71 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 17, 18, and 54 have been rejected as being unnecessary for determination of the issue herein. Petitioner's proposed findings of fact numbered 42-44, and 46 have been rejected as not being supported by the weight of the credible evidence in this cause. Petitioner's proposed findings of fact numbered 26-29, 47, 51-53, 55, and 72 have been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitations of the testimony. Respondent's proposed findings of fact numbered 1, 2, and 8-11 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 3 and 4 have been rejected as being unnecessary for determination of the issue herein. Respondent's proposed finding of fact numbered 5 has been rejected as not being supported by the weight of the credible evidence in this cause. Respondent's proposed finding of fact numbered 6 has been rejected as being irrelevant to the issue under consideration herein. Respondent's proposed finding of fact numbered 7 has been rejected as not constituting a finding of fact but rather as constituting argument of counsel, a conclusion of law, or recitation of the testimony. COPIES FURNISHED: Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Charles M. Loeser, Esquire Health Quest corporation 315 West Jefferson Boulevard South Bend, IN 46601 Steve W. Huss, Esquire 1017 Thomasville Road Tallahassee, Florida 32303 John Rodriguez, Esquire Department of Health and Rehabilitative Services 2727 Mahan Drive Fort Knox Executive Center Tallahassee, Florida 32308 =================================================================
