The Issue The issue in this case is whether Petitioner was overpaid in the amount of $809.46; and, if so, whether she should be required to repay that amount to Respondent.
Findings Of Fact At all times material to this matter, Petitioner was a career service employee of Respondent until her separation in October 2018. Petitioner went into labor unexpectedly in December 2017, and as a result, she began maternity leave. Petitioner was not present at work and did not submit a timesheet for the timeframe of December 29, 2017, through July 2, 2018. Petitioner testified that she was unable to submit her timesheets electronically and for this reason, someone else submitted them on her behalf. The evidence presented at hearing did not show who submitted her timesheets. By May 23, 2018, Petitioner had exhausted all of her annual, sick, and donated leave. Once an employee of Respondent no longer has sick leave remaining, annual leave is used to cover any shortages of sick leave. An employee may use donated leave to cover any shortages. Once an employee has exhausted annual, sick, and donated leave, the employee cannot be paid for additional time taken as leave. The additional time during leave is considered “leave without pay” (“LWOP”). Petitioner was placed on LWOP from March 23, 2018, through July 2, 2018, because she had exhausted all of her leave. Although Petitioner was on LWOP during the pay period of May 4, 2018, through May 17, 2018, a pay warrant for 80 hours of work was inadvertently issued on May 25, 2018, for that pay period. Consequently, Petitioner was overpaid $809.46. Petitioner was not responsible for the overpayment. She did not submit her timesheets and, thus, did not falsify them. Petitioner testified that her supervisor verbally advised her that she had received donated leave, but she could not recall the amount. Petitioner also did not offer any written representation from her supervisor or otherwise regarding her leave. The overpayment resulted because Petitioner's timesheet for LWOP for the pay period of May 4, 2018, through May 17, 2018, was not timely approved. Upon discovery of this error, Respondent’s human resources office conducted a manual audit of Petitioner’s leave. Ms. Anderson completed the leave audit and discovered that Petitioner had been overpaid for the May 4, 2018, through May 17, 2018, pay period. On May 30, 2018, the Department sent Petitioner a certified letter requesting the overpaid amount of $809.46. Petitioner became aware of the error when she received the Department’s letter. Petitioner’s pay was transmitted to her bank account electronically via direct deposit. However, she was not monitoring her bank account closely and did not immediately realize that she had been erroneously overpaid. At the time of the final hearing, Petitioner had not paid the overpayment. Petitioner stated she could only pay $40 per month to repay the overpayment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a final Order requiring Shanace Isaac to repay Respondent $809.46. DONE AND ENTERED this 7th day of March, 2019, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN 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 7th day of March, 2019. COPIES FURNISHED: Shanace Isaac Post Office Box 101 Hastings, Florida 32145 (eServed) Riley Michelle Landy, Esquire Department of Health Bin A-02 5052 Bald Cypress Way Tallahassee, Florida 32399 (eServed) Shannon Revels, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703 (eServed) Louise Wilhite-St Laurent, Interim General Counsel Department of Health 4052 Bald Cypress Way, Bin C65 Tallahassee, Florida 32399 (eServed) State Surgeon General Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701 (eServed)
The Issue Whether the Petitioner's renewal application for licensure to operate as an abortion clinic should be granted or denied.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the agreed facts contained in the Joint Prehearing Stipulation, and on the entire record of this proceeding, the following findings of fact are made: AHCA is the state agency responsible for licensing abortion clinics. See §§ 390.011(3); 390.012; 390.015; 408.802(3); and 408.806, Fla. Stat.1 The Medical Center of Broward is located at 6971 West Sunrise Boulevard, Suite 206, Plantation, Florida, and is licensed to operate as an abortion clinic pursuant to Chapter 390, Florida Statutes, and Florida Administrative Code Rule Chapter 59A-9. On February 16, 2007, AHCA conducted a survey at the Medical Center of Broward in conjunction with the Medical Center of Broward's application to renew its license to operate as an abortion clinic. The Medical Center of Broward refused to give the AHCA surveyor access to patient medical records during the inspection on February 16, 2007. In a letter dated February 20, 2007, Diane Reiland, AHCA's field office manager in Delray Beach, Florida, advised Dr. Rosenthal, the administrator of the Medical Center of Broward, that no deficiencies had been found during the re-licensure survey but that "the Agency will contact you regarding a decision on the medical records concern [sic] that was discussed during the Re-Licensure survey."2 Counsel for AHCA sent a letter to the Medical Center of Broward dated February 27, 2007, setting out a procedure for review of medical records that was agreed to by counsel for the Medical Center of Broward and counsel for AHCA. The procedure set out in the February 27, 2007, letter contemplated a return visit to the Medical Center of Broward by an AHCA surveyor, who would select a sample of approximately 10 clinic patients whose records would be reviewed. The surveyor was to remain at the Medical Center of Broward while office personnel redacted from the records all patient identifying information, and the AHCA surveyor was then to review the records for compliance with the applicable rules and statutes. On April 4, 2007, Deatrice Bartley, a health facility evaluator supervisor employed by AHCA, telephoned the Medical Center of Broward and confirmed an appointment for an AHCA surveyor to review medical records on April 5, 2007, at 9:30 a.m. Ms. Bartley asked the person with whom she spoke if any patients would be present at the time of the record review and was told that no patients would be present on the morning of April 5, 2007. Shortly after 8:00 a.m. on April 5, 2007, Ms. Bartley contacted Alexandra Pelin, a health facility evaluator employed by AHCA, via the cell phone AHCA provided Ms. Pelin. Ms. Bartley advised Ms. Pelin of the 9:30 a.m. appointment at the Medical Center of Broward to review medical records. Ms. Bartley further advised Ms. Pelin that the Medical Center of Broward's office opened at 9:00 a.m.3 After speaking with Ms. Bartley, Ms. Pelin left her home in Palm Beach County, Florida, and drove to the address at which the Medical Center of Broward's office in Plantation, Florida, was located. She arrived at the Medical Center of Broward's office at 9:50 a.m., and went to the second floor of the building, where the office was located. She tried to enter the office, but the office door was locked; she knocked on the door, but there was no answer. She also looked in the window of the office but did not see anyone inside. Ms. Pelin immediately called Ms. Bartley and told her that she was unable to enter the Medical Center of Broward's office. Ms. Bartley gave Ms. Pelin two telephone numbers that had been given to Ms. Bartley by the person she had spoken with at the Medical Center on April 4, 2007. It was Ms. Bartley's understanding that one phone number was for the Medical Center office located in Broward County, Florida, and that the other phone number was for a Today's Women Medical Center clinic located in Miami, Florida. At 9:55 a.m., Ms. Pelin placed a call to 954-792-9171, which was one of the numbers Ms. Bartley had given her.4 Ms. Pelin became confused when the call was answered, and she hung up and redialed the same number. Ms. Pelin's call was answered by the Medical Center of Broward's answering service. She was told by the answering service that someone would be at the office at about 10:30 a.m. The answering service also told her that they could not give her the telephone numbers of the physicians working at the Medical Center of Broward, who received telephone calls at the same number she had dialed. Ms. Pelin then telephoned Ms. Bartley again and gave Ms. Bartley the information Ms. Pelin had received from the answering service. Ms. Pelin suggested to Ms. Bartley that she wait until 10:45 a.m. for someone to arrive at the Medical Center of Broward's office, and Ms. Bartley agreed. Ms. Pelin waited in her car in the parking lot outside the Medical Center of Broward's office from 9:57 a.m. until 10:47 a.m. From her location in front of the building that housed the Medical Center of Broward's office, Ms. Pelin had a direct view of the office door, which was located on the second floor of the building. Ms. Pelin did not see anyone enter or leave the office through that door. Ms. Pelin's telephone records indicate that, at 10:44 a.m., she placed another call to 954-792-9171. She expected the call to be answered by the answering service, but, instead, someone in the Medical Center of Broward's office answered the telephone. Although Ms. Pelin had not seen anyone enter the Medical Center of Broward's office, the content of the telephone conversation led Ms. Pelin to conclude that the person was inside the Medical Center of Broward's office. Ms. Pelin talked with this person, who identified herself only as "Yersel," for approximately five minutes. Ms. Pelin asked if she was inside the office, and "Yersel" told Ms. Pelin that she was. "Yersel" told Ms. Pelin that Ms. Pelin could not come into the Medical Center of Broward's office because she was with a patient and that patients would be coming into the office that day. "Yersel" told Ms. Pelin that AHCA inspectors should come to the office before 10:30 a.m. because patients started arriving at that time. "Yersel" also confirmed with Ms. Pelin that she arrived at the office late that morning. After talking with "Yersel'", Ms. Pelin telephoned Ms. Bartley, who told her to contact AHCA's field office manager. Ms. Pelin did so, and the field office manager advised Ms. Pelin to leave the premises. Ms. Pelin left the parking lot of the Medical Center of Broward's office and drove to AHCA's field office in Delray Beach, Florida, where she arrived at 11:34 a.m.5 Although AHCA surveyors attempt to schedule appointments when no patients are present at an abortion clinic, the surveyors will conduct an inspection even if patients are present under certain circumstances. The surveyors attempt to conduct inspections in a manner that does not disrupt the business of the clinic, and they will try to find a place to work where they do not bother patients. Ms. Pelin could have reviewed the medical records on April 5, 2007, with the permission of the Medical Center of Broward but did not do so because she was told that she could not enter the office. It is AHCA's practice to deny an application to renew a license to operate an abortion clinic after two unsuccessful attempts to inspect the clinic's facility and patient medical records because AHCA has not been able to determine whether the clinic is in compliance with the statutes and rules governing such clinics.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order denying the application of Today's Women Medical Center of Broward for renewal of its license to operate an abortion clinic. DONE AND ENTERED this 30th day of May, 2008, in Tallahassee, Leon County, Florida. PATRICIA M. HART 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 30th day of May, 2008.
The Issue The issues for disposition are whether Respondent violated section 760.10, F.S., as alleged, by terminating Petitioner from employment on the basis of her sex and her condition of pregnancy, and if that violation occurred, what relief is appropriate.
Findings Of Fact Petitioner, Cindy Kinser, was employed as a waitress by Respondent, Sonny's Real Pit Bar-B-Q (Sonny's) in Orlando, Florida, on September 18, 1991. She had worked in Georgia as a waitress for six months prior to that date. In the early morning of May 11, 1992, Ms. Kinser was rushed to the hospital emergency room where she learned that she would require immediate surgery to terminate a tubal (ectopic) pregnancy. Prior to the surgery she called Sonny's and told "Sue" that she would not be able to come to work. She was told to just let them know when she would be released by her doctor. Sonny's has a policy, for maternity leave and for major surgery, that requires its employees to keep in touch during an absence and return to work when they have a medical release. Pregnant employees are permitted six months' maternity leave without pay. Other women have been given leaves of absence from work after surgery and have been permitted to return to work after release by their doctors. Ms. Kinser talked to the manager, Dale, on May 25th, but was not sure at that time when she could come back. She only knew, and told Sonny's, that the doctor had said that it would take about six weeks to recover. Ms. Kinser saw her doctor on June 25, 1992, for a final postoperative office visit and was released that date to return to work. She claims that she went immediately to Sonny's and told Dale that she was released. She claims that Dale told her he would call her after he worked out her schedule. She claims he never called, but that she kept calling and getting "a run-around" until finally, in July, someone told her that other waitresses were hired. She did not try to return to work after that. Respondent does not deny hiring other waitresses throughout the period of Ms. Kinser's absence. The company has to make sure that shifts are covered, but it still allows its employees to return after medical or pregnancy absence provided they have stayed in touch with their supervisor and are released by their doctor. According to Jeff Yarmuth, Ms. Kinser did not inform Sonny's that she was able to return until sometime in July, two weeks after her doctor's release. By then they had replaced her on her previous shift and told her she would be the next one placed on the schedule. After that, she was not interested in returning to Sonny's. Ms. Kinser's composite exhibit includes two separate photocopied statements appearing to be from her physician, Dr. Schechter. One is a handwritten note dated June 26, 1992, stating that she (Cynthia Kinser) may "return to work today". The second, a typewritten statement with a signature, is dated July 9, 1992, stating that on June 25, 1992, "...Cynthia was seen for her final postoperative office visit and was released to return to work." Jeff Yarmuth denies ever seeing the handwritten statement, but relied on the typewritten statement. Ms. Kinser claims that Sonny's had the handwritten statement, because she got the copy from the Florida Commission on Human Relations (FCHR) investigator. The conflict in testimony is unresolved. Neither party presented corroborating witnesses and neither party presented reliable documentary evidence. Ms. Kinser's documents are copies of pleadings, reports and statements from the FCHR investigative file. Mr. Yarmuth's documents include his letter to the FCHR investigator in response to the charge, a copy of the complaint, the employee earnings, record, and the company's maternity leave policy.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Florida Commission on Human Relations enter its Final Order dismissing Petitioner's complaint and petition for relief. DONE AND RECOMMENDED this 24th day of March, 1994, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of March, 1994. COPIES FURNISHED: Jeff Yarmuth Vice President of Operations Sonny's Real Pit Bar-B-Q 217 North Westmonte Drive, Suite 3019 Altamonte Springs, Florida 32714 Cindy Kinser 3023 Quebec Drive Baton Rouge, Louisiana 70819 Sharon Moultry, Clerk Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
Findings Of Fact The Respondent is a licensed osteopathic physician appropriately licensed to practice osteopathic medicine and surgery in the State of Florida, having been issued license number OS 0003004 on July 1, 1971. The Petitioner is an agency of the State of Florida charged, pursuant to Chapter 459, Florida Statutes, with licensure of and regulation of the standards of licensure and practice of osteopathic physicians in the State of Florida. The Respondent was engaged to perform abortion procedures two days per week and to supervise a registered family planning nurse practitioner who provided family planning counseling service for the All Women's Health Center clinic. The family planning counseling service was operated at all times pertinent hereto by Ester Sangster Rose. Nurse Rose is a graduate family planning nurse practitioner, appropriately licensed as such by the Florida Board of Nursing. Nurse Rose, pursuant to a "written protocol" between herself and the Respondent, counseled patients desiring family planning services concerning birth control methods and family planning generally. Nurse Rose delivered prescriptions for oral contraceptives, which had previously been signed by the Respondent, and managed these patients during the course of their oral contraceptive therapy. These efforts by Nurse Rose were at the direction and supervision of the Respondent both during his presence and through the formal, written protocol established between the Respondent and Nurse Rose. Only Nurse Rose utilized the pre-signed oral contraceptive prescriptions, which contained the medication dosage, but only were lacking the patient's name and address, for Nurse Rose to supply upon her counseling with a particular patient. The protocol between Nurse Rose and the Respondent established definite, written, detailed procedures under which she was to operate. For instance, oral contraceptives could only be selectively prescribed at the discretion of the family planning nurse practitioner (Rose) after careful screening of the patient and a determination that some 19 conditions or problems were absent in the patient. Further, after initiating the oral contraceptive therapy, if the patient developed any symptomology related to taking them at all, then the family planning nurse practitioner (FPNP) would be required to refer the patient to the physician. The symptomology initiating that procedure is listed specifically in the protocol, consisting of headaches, elevated blood pressure, depression, mood swings, and leg cramping. Further, the method of dosage is specified in detail, as well as appropriate procedures to follow in the event pregnancy is suspected during the patient's course of taking oral contraceptives. Additionally, detailed instructions are provided concerning insertion of intrauterine devices, which FPNP's may perform, and their appropriate indication for removal; instructions for the fitting and prescription of diaphragms and their removal; and the prescription of medications for minor infections observed during the course of contraceptive management of patients. Finally, the FPNP was instructed in the protocol to refer all patients exhibiting any abnormal finding which might affect their contraceptive management directly to the physician and the same is true of any gynecological problems observed. It has not been demonstrated that Nurse Rose, or the Respondent for that matter, departed whatever from this protocol. Although the Respondent frequently did not see an abortion patient until the day of the proposed abortion, each patient was thoroughly, physically examined by the Respondent and a complete and full medical history reviewed before any abortion procedure was performed. No abortion procedure was performed on patients advanced beyond the 14th week of pregnancy. An extensive interview of the patient was conducted both by the Respondent and by registered medical assistant Holly Miller. Holly Miller did pre-abortion counseling to the extent that she explained to patients what to expect before and after the abortion and took a standard type of medical history. She did not, however, engage in any sort of medical practice concerning advice to abortion patients. The Respondent was contract physician and had no ownership interest in the clinic, nor any employer/employee relationship with the other personnel in the clinic. His supervisory duties only extended to supervising the registered FPNP with regard to the family planning clinic and the nurse or registered medical assistant who assisted him with specific abortion procedures. No personnel of the clinic performed any diagnosis, treatment, operation or prescription for any symptomology or condition for any patient in a manner outside of the direct supervision of the Respondent, or his written protocol in the case of Nurse Rose, the FPNP. Appropriate blood tests, urinalysis and eliciting of medical history was performed by the registered medical assistant. Only Nurse Rose used pre-signed oral contraceptive prescriptions. When a patient came in for abortion consultation or for an abortion itself, either Holly Miller or Nurse Reeder would take a history and advise the patient of pertinent information about what to expect concerning the abortion, both before and after the procedure was done. Neither of them advised the patient on whether to have the abortion performed or not and all information elicited was given to the doctor prior to the abortion procedure. In addition to the pre-signed prescriptions for oral contraceptives used in the family planning clinic by the registered FPNP, Mrs. Rose, there were a limited quantity of Respondent's pre-signed prescriptions for various antibiotics and a mild analgesic, Wygesic, a "schedule four controlled substance," which were prescribed to patients in conjunction with the abortion procedures performed. None of these prescriptions (other than the oral contraceptives prescribed by the family planning practitioner) were given to any patient in a manner other than under direct supervision of the Respondent in conjunction with the abortion procedures. The Respondent would direct the nurse or medical assistant to give the patient the particular prescription. He would then chart that dispensation of medication himself. It was shown, however, that these pre-signed prescriptions were maintained in a locked cabinet at the clinic at times when the Respondent was not present or using them and when other personnel had access to them. The registered family planning practitioner only dispensed, in addition to oral contraceptives, a few antibiotics and Methergine, which were appropriately in the course of her family planning practitioner's authorized therapy, pursuant to the authority cited below, as well as the written protocol established between herself and the Respondent. The protocol initiated by the Respondent with the family planning practitioner, Ms. Rose, was an appropriate protocol in the context of the authority cited below and reasonably prudent medical practice.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence in the record, it is RECOMMENDED: That the Respondent, J. Decker Frazier, D.O., be found guilty of violating Subsection 459.015(1)(h) and Subsections 459.015 (1)(aa), Florida Statutes (1981), and that the Board of Osteopathic Medical Examiners impose the penalty of a two-week suspension. DONE and ENTERED this 19th day of September, 1983, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 19th day of September, 1983. COPIES FURNISHED: James H. Gillis, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Lacy Mahon, Jr., Esquire 350 E. Adams Street Jacksonville, Florida 32202 Dorothy Faircloth, Executive Director Board of Osteopathic Medical Examiners Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
