Findings Of Fact Based on the Prebearing Stipulation executed by the parties, and the evidence submitted at hearing, the following facts are determined: Mental Health Board No. 9 ("Board") coordinates mental health programs within the Department's Service District 9-a geographic area encompassing Indian River, Okeechobee, St. Lucie, Martin, and Palm Beach Counties. Three community mental health centers provide services to meet the mental health needs within District 9. (Testimony of Robert Quam) The Board, by contract with the Department's Administrator of District 9, coordinates and disburses State funds specifically appropriated for the purpose of supporting community treatment programs for persons suffering from mental illness, alcoholism and drug abuse. The current contract between the District Administrator and the Board was executed during June, 1979, and contains no allocation to the Board for the provision of residential treatment services for emotionally disturbed children. (Testimony of K. Bray) In 1979, the Florida Legislature appropriated to the Department's central Office of the Assistant Secretary for Operations, Office of Assistant Secretary, a lump sum of $1,295,000.00 for the purchase of residential treatment services for emotionally disturbed children during fiscal year 1979-80. In addition, $705,000.00 was provided, in lump sum, to the Florida Department of Education for education of emotionally disturbed children. (Testimony of K. Bray, Petitioner's Exhibit Nos. 2 and 9) On July 19, 1979, the Department distributed to over 50 providers of social services, a Request for Proposals for the purchase of residential services for emotionally disturbed children. The Request indicated the Department was "seeking to expand its services for emotionally disturbed children and adolescents through the development of residential. treatment- orientation programs," 1/ outlined the features of the program, including statewide standards and other criteria, and invited recipients to submit to the Department's Assistant Secretary for Operations, proposals to provide such services by contractual purchase. (Testimony of K. Bray, Petitioner's Exhibit Nos. 1 and 2) The Department required proposed residential services for emotionally disturbed children to emphasize short term treatment designed to meet the social, emotional, and educational (including vocational) needs of children. Since the Department concluded that there was "no concrete evidence that one specific therapeutic modality works best at reducing or eliminating a child's emotional disturbance," 2/ applicants were invited to propose a wide range of treatment modalities. While successful treatment for emotionally disturbed children includes a therapeutic mental health element, it also must include educational, vocational, recreational, and social components. (Testimony of E. Bray, Dr. Clifford J. Bodarky, Petitioner's Exhibit No. 2) Upon receiving the Department's Request for Proposals for the purchase of residential services for emotionally disturbed children, the Executive Director of the Board met with representatives of the three mental health centers within District 9. They concluded that there was an urgent need for such services within their area, and agreed to submit, through the Board, a coordinated proposal to the Department. The Board's Executive Director drafted the initial proposal, and, after approval by the mental health centers and Board, submitted it to the Department's Assistant Secretary for Operations. The Board's proposal, which would be supported and administered by the three mental health centers, provided for the establishment of 45 therapeutic foster care homes, with close supervision by professional case workers. (Testimony of R. Quam, Petitioner's Exhibit Nos. 3 and 4) The Department received in response to its July 19th request, 20 proposals from providers of social services throughout the State, including one mental health board (Mental Health Board No. 9, Inc.), several mental health centers, a hospital, university, Little River Boys Ranch and Boystown of South Florida. By letter of August 31, 1979, the Department's Assistant Secretary for Operations notified the Board that its proposal had been selected for further review. During September, the Board's Executive Director discussed its proposal with Department representatives in Tallahassee, including Ms. Phyllis Roe, Assistant Secretary for Operations. They specifically discussed one attribute of the proposal-- that it would be a coordinated effort under the Board, with the Board serving as the applicant. Although Board representatives left that meeting with a belief that the Department was amenable to such a role for the Board, Department representatives did not expressly approve, or commit to approval of this feature of the proposal. (Testimony of Terry H. Allen, and Robert K. Quam) By letter dated October 8, 1979, Assistant Secretary Roe informed the Executive Director of the Board that its proposal had been approved, and concluded: "Because your plan involves therapeutic foster homes in three separate Mental Health Center catchment areas and each Center may focus its program a little differently, we will need to execute three separate contract.. I believe the process will be expedited if we deal directly with the Center staff responsible, with your par- ticipation in the process and, with space provided on the contract for your con- currence." (Petitioner's Exhibit No. 7) By letter of October 25, 1979, the Board objected to the Department's decision to bypass it and implement the proposal by contracting directly with each mental health center involved. The Department subsequently executed separate contracts with the three mental health centers included in the Board's proposal. No evidence was introduced to indicate that the program is not being effectively administered pursuant to the provisions of those contracts. (Petitioner's Exhibit No. 8)
Conclusions Funds appropriated to the Department's central Office of the Assistant Secretary for purchase of residential services for emotionally disturbed children are not State mental health funds which must be distributed to and administered by the various district mental health boards under Part IV, Chapter 394, Florida Statutes (1979). Contract principles do not compel the Department to contract with Petitioner Mental Health Board No. 9 to provide residential services to emotionally disturbed children located in District 9.
Recommendation That Petitioner Mental Health Board No. 9's request for relief be DENIED and the Department's actions under challenge be UPHELD.
The Issue Did Respondent, Hodges University (Hodges), commit an unlawful employment practice against Petitioner, Connie Leonessa, on account of her religion, as defined and prohibited by section 760.10(5), Florida Statutes (2018)?1
Findings Of Fact Parties Hodges is a university located in Ft. Myers, Florida. It offers a master's degree in counseling through the Clinical Mental Health Counseling (CMHC) program housed within Hodges' Nichols School of Professional Studies. Ms. Leonessa was a student in Hodges' CMHC master's program. Ms. Leonessa is an experienced registered nurse who has primarily served pediatric patients over the years. She also volunteered regularly to work with children in inner cities of the Northeast. Those experiences, her compassion for children, and her personal trauma of molestation drove Ms. Leonessa to want to serve children better. In her words, "and I just felt that God wanted me to go back to school to get a master's so I can help these victims." Ms. Leonessa was enrolled in Hodges from 2015 until the fall of 2018. Her goal was to prepare herself to provide counseling services to child victims of trauma. There is no persuasive, competent evidence proving that providing counseling services to child victims of trauma is a profession, occupation, or trade that requires a master's degree in counseling. In fact, paid positions in the counseling field are available without a master's degree. A master's degree, followed by two years of full-time, post- graduation, paid supervised work experience is required to obtain a mental health counselor license. So is passage of the NCMHCE Exam administered by the National Board for Certified Counselors. The persuasive, competent evidence of record does not prove that Ms. Leonessa intended to take the post-graduation steps required to obtain a mental health counselor license or to seek a mental health counselor license. Hodges' Master's Program Earning a master's degree in social work from Hodges requires successful completion of academic coursework, a 200-hour practicum, and three 267-hour internships. The providers of the practicum and internships are not part of or controlled by Hodges. The student is responsible for identifying and making arrangements with the practicum and internship providers. Hodges assists when it can. Hodges' program, like counseling itself, requires students to develop awareness of their preferences, prejudices, ethics, and philosophies and separate them from the support and guidance provided clients. Upon entering the program, students agree to abide by the requirements of a Clinical Mental Health Counseling Professional Attitude and Behavior Agreement (Agreement). Ms. Leonessa signed the agreement on September 2, 2015. The Agreement states the student's obligation to align her "personal ethics with the professional ethics as defined by the American Counseling Association (ACA) 2014 Code of Ethics [Code].” The Code was attached to the Agreement. The Agreement emphasizes the priority of avoiding harm to clients or future clients and taking care to not impose the counselor's personal beliefs, values, and behaviors on clients. The Agreement recognizes the ethical dilemmas the profession presents and articulates a student's obligation to consult others about the dilemmas and develop "an ever increasing ability to apply a professional ethic to difficult situations involving ethical dilemmas and associated law … ." As part of the Agreement, Ms. Leonessa agreed to have "an open and willing attitude toward feedback and suggestions given by faculty, peers and site supervisors to help the student reduce the possibility of harm." This tenet supports the value of requiring a counselor to put "a high priority on avoiding harm to clients or future clients." The Agreement obliges the student to understand and abide by the Code. The CMHC Student Handbook (Handbook) contains and emphasizes requirements similar to the Agreement's requirements. It encourages students to pursue personal therapy and growth, for their intrinsic benefits and to provide insight into what clients experience. The Handbook emphasizes that counselors are held to higher ethical standards and higher levels of personal growth and mental health than the average person. It states that evaluation of a student's progress in those areas is part of judging a student's suitability for the counseling profession. Hodges' program includes regular evaluation of a student's progress in "interpersonal interactions with students, faculty, site supervisors, and others involved with his/her academic progress." The program requires progress in those areas and provides for a Student Development Plan for remediation if the student does not improve his or her interpersonal interactions and skills. The Handbook directs students to review the Code. The Handbook requires students to work professionally and respectfully with fellow students, faculty, site supervisors, and site employees. The Handbook also requires students to accept others without rejection based upon, among other things, age, culture, gender identity, sexual orientation, religion, or marital status. A student commits to be "respectful of differing opinions and professional practice … ." A student also commits to work "to continually improve her/his professional relationship skills and clarify professional boundaries." The Handbook, signed by Ms. Leonessa, concludes with this affirmation: I understand that the Hodges University Clinical Mental Health Counseling Program requires students to perform adequately in areas of academic assessment that include the ability to form and continue positive relationships with others; the ability to acquire and correctly use counseling knowledge and skills, and the ability to successfully complete all practicums and internships in the judgment of the faculty and site supervisors. These expectations are in addition to the didactic coursework expectations and assessment procedures. I understand that I will be expected to continually improve my ability to demonstrate counseling competencies as I progress in the program. I further understand that the American Counseling Association 2014 Code of Ethics forms the basis of professional standards to which I must adhere. In sum, the nature of the counseling field that Ms. Leonessa sought to enter and the program at Hodges required students to develop an open and tolerant and patient way of communicating with people with whom they may disagree, even disagree vehemently. Conflict in Hodges' Academic Program Ms. Leonessa performed well in her academic work. But her interactions with three fellow students and a professor were marked with conflicts. She attributed the conflict to discrimination against her on account of her religion. The evidence does not support the attribution. Ms. Leonessa's sensitivity to the age differential between herself and other students and her aggressive personality caused conflict with fellow students. Ms. Leonessa acknowledged her aggressiveness, saying, "You know, I know I have a tone and I've been honest about that. I have a tone." (Tr. V. I, p. 206). Ms. Leonessa also had a pattern of attributing any disagreement or conflict to opposition to her Christian beliefs. Dr. Thomas Hoffman taught many of Ms. Leonessa's classes. Like Ms. Leonessa, Dr. Hoffman is a Christian. In email communications each referred to scripture. For instance, Dr. Hoffman, in counseling Ms. Leonessa about alleviating her repeated personal conflicts, advised her to be "wise as a serpent, but gentle as a dove." Ms. Leonessa, in defense of her combative approach said, "Jesus Christ spoke truth and was hated for it." Neither Dr. Hoffman nor any other Hodges representative ever prohibited Ms. Leonessa from referring to her Christian beliefs in communications with them. In addition, Dr. Hoffman never asked Ms. Leonessa not to share her religious views, such as her anti-abortion beliefs, in class. As the years passed, Ms. Leonessa's communications to Dr. Hoffman grew increasingly querulous and combative. Her tone was frustrated and loud. She challenged Dr. Hoffman's competence, honesty, and integrity in a disrespectful manner. Ms. Leonessa clashed, in class and outside class, with three fellow students. She felt the students did not treat her with the respect that was her due because of her age. Ms. Leonessa had a dispute with one student about abortion. She had conflicts with another about the use of the "F" word in class. Ms. Leonessa had a conflict with a third student who said that Ms. Leonessa was trying to impose her values in class. During these conflicts, Ms. Leonessa raised her voice and spoke hostilely. Sometimes she pointed her finger. In an encounter outside of the school, one of the students told Ms. Leonessa that Ms. Leonessa's beliefs were "f…ed up" and that Ms. Leonessa should attend a Christian school. Once Ms. Leonessa jerked on another student's purse strap to make a point. Those three students did not have conflicts with other students or faculty. Also, as will be addressed below, Ms. Leonessa had significant problems in her internships, problems the other students did not have. The three students were not similarly situated to Ms. Leonessa. Due to these conflicts and ways of interacting with Dr. Hoffman, Hodges faculty met with Ms. Leonessa in February 2016 in an informal coaching session. The purpose was to address Ms. Leonessa's inability to control her emotions and express herself in an appropriate manner. These are all issues whose importance to counseling the Agreement, the Handbook, and the Code all emphasize. Ms. Leonessa's religious beliefs were not the reason for convening the coaching session or the communications during it. The faculty also conducted informal coaching sessions with the other three students. Despite the coaching sessions, Ms. Leonessa's conflicts with the students and Dr. Hoffman continued. Hodges' Handbook provides for establishing a formal Student Development Plan (SDP) to assist students who are not performing in a manner that is consistent with the Code. An SDP's purpose is to formalize concerns not resolved by the informal coaching and provide a plan for addressing them. It is a remedial measure. Hodges established SDPs infrequently. Since 2011 it has implemented seven. The faculty created an SDP for Ms. Leonessa and placed her on it in October 2016. Ms. Leonessa's religious beliefs played no part in the decision to create the plan or setting the plan's requirements. The behaviors which the SDP addressed included the changes in Ms. Leonessa's tone and raised volume when she disagreed with others, her practice of interrupting others with whom she disagreed, and her belaboring of class topics well after the instructor was trying to move the class to a resolution and on to the next subject. The plan provided supports and measurable goals for Ms. Leonessa. They were: (1) pairing her with a third-year student as a mentor, (2) completing a case study assignment, (3) completing role-playing exercises, and (4) documenting her changes of tone and volume in class. Ms. Leonessa disagreed with the SDP but agreed to follow it and signed it some two months after the faculty presented it to her. The role-playing exercises assigned to Ms. Leonessa involved same-sex attraction and abortion. The faculty selected these two topics because they recur frequently in counseling. Ms. Leonessa's religious beliefs were not the reason for selecting the topics. Ms. Leonessa successfully completed the SDP. The three students with whom Ms. Leonessa clashed were not placed on SDPs. Their issues did not match Ms. Leonessa's in frequency or intensity. Practicum Ms. Leonessa sought to establish a practicum placement at Cape Christian, also known as Samaritan Health and Wellness Center (Cape Christian). There was some uncertainty whether the supervision available at Cape Christian met Hodges' requirements. Ms. Leonessa's contact at Cape Christian, Ms. Trout, was not satisfactorily responsive to Ms. Leonessa's efforts to sort the issue out. This resulted in combative telephone calls and emails from Ms. Leonessa to Ms. Trout. An excerpt from one email illustrates Ms. Leonessa's pattern of hostility and injection of religion into disputes. In a December 5, 2016, email to Ms. Trout from Ms. Leonessa describing her displeasure with the responsiveness of Cape Christian and a conversation with one of Ms. Trout's co-workers, Ms. Leonessa wrote: You stated I chewed her out but you were not on the phone. I did not disparage her character in any way, I said as believers we are to keep our word and that now I would have to find another place at the last minute. That is all I said. The Bible says be angry and sin not. According to what I have heard, you do not believe people should be angry and I would bet there are times in your life when you have had an unprofessional tone. Also I have had to wait weeks before hearing back from you, it amazed me how quickly you called about this situation-seconds! Ms. Trout replied: If you were my student and you'd have behaved in the manner as this [sic], you would be put in a professional development status, complete with remediation, to determine your appropriateness to move forward in the field of counseling. The fact that you sent this email in its current form further highlights the display of lack of professionalism and emotional maturity now exhibited in two separate phone calls as well. I would encourage that you seek some assistance in processing your emotions, and the manner in which you communicate those. I wish you the best. Ms. Leonessa replied to Ms. Trout, "Please do not contact me further." Ms. Trout forwarded the email exchange to Sue Hook and Dr. Mary Nuosce of Hodges. Dr. Nuosce answered, "Amy, I apologize for her total lack of professionalism. We are working on this. Thank you for your patience." This incident triggered an update to the SDP. The update was because of Ms. Leonessa's conduct and unrelated to her religious beliefs. Ultimately, Ms. Leonessa obtained and successfully completed a practicum with FRS/Omega Center. Tina Friedman was her supervisor. Ms. Friedman twice noted in the July 7, 2017, evaluation form that Ms. Leonessa required ongoing attention in the area of values management. The values criterion relates to many of the requirements and principles of the Agreement, the Code, and the Handbook. The evaluation form describes it thus: "Value Management: How did the student cope with values? Were attempts made to impose the student's values during the interview?" Ms. Friedman's Session Evaluation Form noted, "Connie does repeatedly offer her own values during client/student interaction." Ms. Friedman wrote a note to Ms. Leonessa on the form stating that Ms. Leonessa's development was at an expected level save for in values management. The note went on to specify: "Please work more diligently in this area as that may [prove] to be a problem in the future." The August 17, 2017, final evaluation emphasized the problem stating, HER BURNING DESIRE TO INITIATE CHANGE, MAY PROVE TO BE HER MOST DIFFICULT PERSONAL CHALLENGE AS A CLINICIAN. IT IS HOPED THAT IN TIME AND WITH FURTHER EXPOSURE TO THE TENETS OF EFFECTIVE COUNSELING, CONNI CAN LEARN TO ACCEPT AND MEET THE CLIENT WHERE THEY ARE AT IN THE PROCESS. CONNI HAS STRONG, DEEP ROOTED BELIEFS AND VALUES, WHICH MAY BE DIFFERENT THAN THOSE OF THE CLIENTS AS WELL AS HER PEERS, THAT SHE ENCOUNTERS. I HAVE SHARED THIS OBSERVATION WITH CONNI AND HAVE ENCOURAGED HER TO CONSIDER THE IMPORTANCE OF BEING OPEN AND ACCEPTING TO THE DIVERSITY OF THE POPULATION SHE WILL SERVE. Internships Ms. Leonessa obtained an intern position with True Core Behavioral Solutions (True Core). True Core provided services to the Ft. Myers Youth Academy, a juvenile detention center. True Core terminated Ms. Leonessa's internship after two days. The problems leading to her termination were those of value imposition and boundary crossing presaged by her practicum. Ms. Leonessa participated in two counseling sessions for the juveniles. Her improper conduct included sharing personal information about her abandonment by her husband and her celibacy since then. In the counseling profession this boundary crossing behavior is often damaging to the therapeutic process. Ms. Leonessa also criticized a young man who supported his girlfriend obtaining an abortion, telling him abortion was murder and talked about holding premature babies in her hands. She criticized some of the youth for engaging in premarital sex telling them it violated God's law. She told one young man his troubles stemmed from abandonment by his father. This conduct demonstrated emotionalism and an inability to respect client perspectives that the SDP was intended to ameliorate. For this reason, Hodges updated the SDP. Ms. Leonessa acknowledges that it would be professionally wrong for a counselor to advocate her personal religious beliefs and values to clients. She denies that she did so. But the preponderance of the competent, substantial evidence proves that she did. True Core reported Ms. Leonessa's termination and the causes for it to Hodges. After Ms. Leonessa's termination from True Core, Dr. Mary Nuosce, Dean of the Nichols Schools of Professional Studies and a faculty member, tried to assist her in finding another internship placement. Dr. Nuosce was the supervisor for Ms. Leonessa's internships. She approached Janean Byrne from Serenity Counseling about accepting Ms. Leonessa as an intern. Dr. Nuosce thought Serenity might suit Ms. Leonessa more because it was a faith-based counseling provider. She gave Ms. Leonessa Ms. Byrne's contact information and asked her to follow up on establishing an internship. Ms. Leonessa did not seek the internship. She refused to contact Ms. Byrne for non-specified reasons. She told Dr. Nuosce, "I just emailed her [Ms. Byrne] and turned down the position. What occurred today has taught me that I need to find a place where my values are shared and respected so I will continue to look for a sight [sic]." When Dr. Nuosce asked how she could be so judgmental about someone she had never met, Ms. Leonessa responded, "I never said anything against her [Ms. Byrne], however, I am looking for a place that shares my biblical values especially after what occurred today that is all. I do have the right to choose where I want to intern at!" Hodges' faculty continued efforts to help Ms. Leonessa locate an intern position. Ms. Leonessa obtained an internship at HEADS. Within a few weeks, HEADS dismissed her. Ms. Leonessa worked with therapist Julie Jakobi attending sessions with clients. Jerry Sprague, HEADS's clinical supervisor for Ft. Myers, selected Ms. Jakobi to work with Ms. Leonessa because he was aware of Ms. Leonessa's ardent Christian beliefs and Ms. Jakobi held similarly strong Christian beliefs. The first client Ms. Jakobi and Ms. Leonessa saw was a 13-year old female with a long history of running away and conflict with her mother. They saw her at school in a room in the office. The student was very concerned about telling her mother that she was gay. After the student left the room, Ms. Leonessa turned and loudly and aggressively confronted Ms. Jakobi telling her she was wrong in her counseling of the student. Ms. Leonessa insisted Ms. Jakobi should have told the student that she would catch sexually transmitted diseases, she would become depressed, and she would commit suicide. The room's door was open, and a secretary sat right outside the door. The lack of privacy and danger to client confidentiality concerned Ms. Jakobi. They also visited a client, a man concerned about becoming an opioid addict and the effect on him of growing up in a rough neighborhood. He and his wife were separated and had completed the documents necessary to finalize their divorce. Ms. Jakobi had informed Ms. Leonessa of the pending divorce before they arrived at the home. Ms. Jakobi and Ms. Leonessa met with the client at his wife's home. Ms. Leonessa began talking to the man about how he could work through his problems and learn to love his wife better. This "froze" the client and sabotaged efforts to provide the addiction counseling he sought. On the drive back to the office, Ms. Leonessa was very rude and hostile to Ms. Jakobi. Ms. Leonessa was physically tense. Her tone was sharp. Ms. Leonessa brought up homosexuality again and renewed advocacy of "conversion therapy." At the time, this was not permitted. As soon as she left Ms. Leonessa at her car, Ms. Jakobi called Mr. Sprague to report the day's incidents. He concluded that quick action was required and asked Ms. Leonessa to apologize to Ms. Jakobi. It is worth noting that Mr. Sprague's email signature quotes from the Bible, Psalm 82:3. Ms. Leonessa’s apology read as follows: "I realize not everyone see's [sic] things eye to eye. However when differences occur truth needs to be spoken in a way that is gentle. I realize my 'tone' is not always gentle and I am working on this." This is no apology and was not received as one. Mr. Sprague spoke further to Ms. Jakobi and another counselor who worked with Ms. Leonessa about their experiences with her. He concluded that he was "not convinced that she will not cause harm." He decided that terminating Ms. Leonessa promptly was best. Mr. Sprague's September 27, 2018, email to Dr. Nuosce explaining his decision is persuasive and was reasonably accepted by the Hodges faculty. He began by reporting that Ms. Leonessa was very difficult to communicate with. He reported that Ms. Leonessa "failed at a very basic level to demonstrate the ability to maintain appropriate boundaries and to demonstrated basic empathy skills." His email went on to state: I would be surprised if you didn't already know this as her strong personality, strong beliefs and aggressive tendencies are hard for her to manage. She had told me she has had conflicts with professors so I imagine this is why. He concluded that Ms. Leonessa was "stuck on a superficial (immature) level of reasoning and so she is failing to both read others well and to maintain appropriate social boundaries … ." Mr. Sprague strongly suggested Ms. Leonessa consider a different career than counseling. This report, supported by the evidence in this case, caused Dr. Nuosce to conclude that Ms. Leonessa was not complying with her revised SDP. Also Ms. Leonessa had failed to complete two internship programs and one practicum. Failure to complete the practicum revealed significant problems which persisted. Three internships are required to obtain a counseling degree from Hodges. Ms. Leonessa completed none. For these reasons, Hodges administratively withdrew Ms. Leonessa. Ms. Leonessa appealed within the Hodges system. Her appeal papers did not acknowledge what she had done wrong or how she proposed to improve. Instead they discussed her background and accused Hodges of repeatedly violating its policies and procedures. Hodges' Provost reviewed the many documents generated during Ms. Leonessa's tumultuous enrollment. He noted the similarity of reports of unacceptable behavior from different and unrelated sources, within and without the University. He denied the appeal. Summary The record of Ms. Leonessa's three years in Hodges' counseling program, including her time in practicum and internships, is a record of consistent, disputatious conduct. When the subject of religion, specifically Christianity arose, it was because Ms. Leonessa initiated criticisms of others' behavior as unchristian, because Ms. Leonessa sought to advocate her Christian views to counseling clients, and because she explicitly judged clients' actions, decisions, and options by her standards. The evidence does not prove that Hodges took any actions against Ms. Leonessa, including imposition of the SDP and termination from the program because of her religion. Hodges' terminated her because she violated the fundamental counseling requirement to accept clients as they are and not seek to impose her values on them. The record does not prove that any of the practicum and internship providers took any actions against Ms. Leonessa on account of her religious beliefs. Furthermore, the practicum and internship providers were independent of Hodges. They were not subject to its control or direction or acting in its stead.
Recommendation It is Recommended that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief of Connie Leonessa. DONE AND ENTERED this 22nd day of January, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 Thomas K. Rinaldi, Esquire Bond, Schoeneck & King, PLLC Suite 105 4001 Tamiami Trail North Naples, Florida 34103 Cheyanne Costilla, Gen. Co. Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 S JOHN D. C. NEWTON, II Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Connie Leonessa American Liberties Institute Post Office Box 547503 Orlando, Florida 32854 Matthew Brown McReynolds, Esquire Pacific Justice Institute Post Office Box 276600 Sacramento, California 95827 Michelle Wilson, Executive Director Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399
The Issue The issue in this case is whether Petitioner, Lena Kaye Richardson, should be granted an exemption from disqualification from employment pursuant to Chapter 435, Florida Statutes.
Findings Of Fact Petitioner, Lena Kaye Richardson, was employed in October of 1996 at a children's day care center. Ms. Richardson was discharged by the day care center in March of 1997, as a result of background screening pursuant to Chapter 435, Florida Statutes. Ms. Richardson has been employed in child care since 1987. As a result of background screening required for Ms. Richardson to be employed at the day care center, it was determined that on February 9, 1990, she had pled nolo contendere to, and been adjudged guilty of, grand theft by passing worthless checks in violation of Section 832.05, Florida Statutes. Ms. Richardson was placed on probation for five years and required to make restitution. On August 12, 1992, Ms. Richardson's probation was revoked due to violations of the conditions of her probation. During the calendar years 1996 and 1997, Ms. Richardson has been criminally charged twenty-five times before the Second Judicial Court in Leon County, Florida. These charges all involved passing worthless checks in violation of Chapter 832, Florida Statutes. Of the twenty-five charges, nine resulted in a summons being issued and fourteen resulted in the issuance of a capias. Another capias is currently outstanding in the case of State of Florida v. Lena Kaye Glenn (Ms. Richardson's maiden name), Case Number 95-653-MM-A, Second Judicial Circuit, Gadsden County, Florida. Although the Department of Children and Family Services (hereinafter referred to as the "Department") gave Ms. Richardson an opportunity to provide proof that she had taken care of the capias, she has failed to provide such proof. The Department concluded that Ms. Richardson was disqualified from her employment at the day care center based upon her plea of nolo contendere to an offense specified in Section 435.04(2)(r), Florida Statutes. The offense listed in Section 435.04(2)(r), Florida Statutes, is an offense prohibited pursuant to "Chapter 812, relating to theft, robbery, and related crimes, if the offense is a felony." Chapter 812, Florida Statutes, is titled "Theft, Robbery, and Related Crimes." Ms. Richardson was adjudicated guilty of an offense under Chapter 832, Florida Statutes, and not Chapter 812, Florida Statutes. All of the offenses Ms. Richardson has been charged with are offenses prohibited under Chapter 832, Florida Statutes, and not Chapter 812, Florida Statutes. The evidence failed to prove that Ms. Richardson has committed any offense which disqualifies her for employment pursuant to Chapter 435, Florida Statutes. Ms. Richardson failed to prove that she is rehabilitated from the offenses she has been adjudicated guilty of. Although sufficient time has passed since her initial conviction in 1990, she has continued to commit violations of Chapter 832, Florida Statutes. Ms. Richardson has proved, however, that she should not be disqualified from employment as required by Section 435.06(3), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Department of Children and Family Services finding that Lena Kaye Richardson is should be granted an exemption from disqualification from employment pursuant to Section 435, Florida Statutes. DONE AND ORDERED this 6th day of November, 1997, 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 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 6th day of November, 1997. COPIES FURNISHED: Gregory D. Venz, Agency Clerk Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard A. Doran, General Counsel Department of Children and Families Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Lena Kaye Richardson 3422 Blue Jay Drive Tallahassee, Florida 32310 John R. Perry, Assistant Legal Counsel District 2 Legal Counsel Department of Children and Family Services 2639 North Monroe Street, Number 252-A Tallahassee, Florida 32399-2949
Findings Of Fact In 1993, the US Health Care Financing Administration gave Respondent approval to design and implement a pilot program for the delivery of mental health services in part of Florida. The pilot program is limited to Medicaid Area 6, which consists of Hardee, Highlands, Hillsborough, Manatee, and Polk counties. The purpose of the pilot program is to change the way in which the State of Florida pays for mental health services under the Medicaid program. At present, the State makes "fee-for- service" payments based on predetermined fees for defined services. RFP, 1.1 KK. Under the new method, the State will make "capitation" payments consisting of a monthly fee paid in advance to the contractor for each enrolled Medicaid recipient, regardless whether the enrollee receives the services during the payment period. RFP, 1.1.H. On November 23, 1994, Respondent issued Request for Proposals 9501 (RFP). The purpose of RFP 9501 is to procure a contract with a "single, comprehensive mental health care provider on a prepaid, capitated basis, to provide mental health benefits to Medicaid recipients who are residents of Medicaid Area 6 . . .." RFP, 1.4. The second paragraph of RFP 1.4 identifies four goals of the procurement: that the procurement proceed in a timely manner, (2) that the . . . RFP . . . encourages free and open competition, (3) that the procurement effort and resulting new contract operations be completed in a timely manner without disruption of service to Medicaid clients, and (4) that the procure- ment result in a single contractor for Area 6 with sufficient resources to provide services to all AFDC related and SSI Without Medicare Medicaid eligibles in Area 6. Section 2.2 requires that the contractor provide "[i]npatient hospital care for psychiatric conditions," "[o]utpatient hospital care for psychiatric conditions," "[p]sychiatric physician services," "[c]ommunity mental health care," "Mental Health Targeted Case Management," and "Mental Health Intensive Case Management." Section 2.3 defines the six categories of services identified in the preceding paragraph. Referring to "Community mental health care" as "Community Mental Health Services," Section 2.3 states: Community Mental Health Services Community Mental Health Services are rehabil- itative services which are psychiatric in nature, rendered or recommended by a psychia- trist; or medical in nature, rendered or recommended by a psychiatrist or other physician. Such services must be provided in accordance with the policy and service provision specified in the Community Mental Health Services Provider Handbook. The term "Community Mental Health Services" is not intended to suggest that the following services must be provided by state funded "Community Mental Health Centers" or to preclude state funded "Community Mental Health Centers" from providing these services: There are eight categories of mental health care services provided under community mental health: Treatment planning and review; Evaluation and testing services; Counseling, therapy and treatment services provided by a psychiatrist or physician; Counseling, therapy and treatment services provided by a direct service mental health care provider; Rehabilitative services; Children's mental health services; Specialized therapeutic foster care, Level 1 and 2; and Day treatment programs. Community mental health services for children in specialized therapeutic foster care and resi- dential treatment will be provided by HRS District 6 Alcohol, Drug Abuse and Mental Health Program Office to the same degree as in the past. Services are limited to those covered services provided by or under the recommendation of a psychiatrist or physician and related to a plan of care provided or authorized by a psychiatrist or physician, as appropriate, based on the patient's diagnosis. Targeted Case Management The contractor shall adhere to the requirements of the Medicaid Case Management Services Provider Handbook, but will not be required to seek certifications from the HRS Districts' Alcohol, Drug Abuse and Mental Health Program Office in regard to clients, agency designation, or mental health care case manager qualifications. Case manager training materials will be made available through the agency for reproduction by the contractor. Intensive Case Management This is a new mandatory service which is intended to provide intensive, team case management to highly recidivistic persons who have severe and persistent mental illness. Section 2.5 requires that the contractor "adhere to the following minimum staffing, availability, and access standards": The contractor shall provide access to medically necessary mental health care (with the exceptions noted in section 2.4 B.) The contractor shall make available and accessible facilities, service locations, and service sites and personnel sufficient to provide the covered services (specifically, non-hospital outpatient, emergency and assessment services) throughout the geographic area, within thirty minutes typical travel time by public or private transportation of all enrolled recipients. (The typical travel time standard does not apply to waiting time for public transportation--it applies only to actual time in transit.) The contractor must allow enrollees to choose one of the capitated services, as provided in Section 5.1 F.1., when the plan offers another service, not reimbursed under the contract, as a downward substitution. The maximum amount of time between an enrollee's request for mental health services and the first point of service shall be as follows: For emergency mental health services as defined in section 1.1 BB., service shall be immediate. For persons initially perceived to need emergency mental health services, but upon assess- ment do not meet the criteria for emergency care, they are deemed to require crisis support and services must be provided within twenty-three hours. For routine outpatient intake, assessment shall be offered within seven calendar days. Follow-up service shall be offered within fourteen calendar days after assessment. Minimum staffing standards shall be as follows, and failure to adhere to these staffing standards, or the staffing standards indicated in the winning proposal, whichever are greater, may result in termination of the contract (if the contractor's "staff" person does not fill one of the "key staff" positions listed on page 81, the staff persons may be a subcontractor.): * * * The contractor's outpatient staff shall include at least one FTE direct service mental health care provider per 1,500 prepaid members. The Agency expects the contractor's staffing pattern for direct service providers to reflect the ethnic and racial composition of the community. The contractor's array of direct service mental health care providers for adults and children must include providers that are licensed or eligible for licensure, and demonstrate two years of clinical experience in the following specialty areas: Adoption, Separation and loss, Victims and perpetrators of sexual abuse, Victims and perpetrators of physical abuse, Court ordered evaluations, and Expert witness testimony. Mental health care case managers shall not be counted as direct service mental health care providers. The contractor shall provide Spanish speaking and Spanish literate direct service providers at each service location at which there are Spanish speaking enrollees. The contractor shall provide staff approp- riately trained and experienced to provide psychological testing. The contractor shall provide staff approp- riately trained and experienced to provide rehabilitation and support services to persons with severe and persistent mental illness. For all persons meeting the criteria for case management as specified in the Medicaid Case Management Provider Handbook, the contractor shall adhere to the staffing ratio of at least 1 FTE mental health care case manager per 20 children, and at least 1 FTE mental health care case manager per 40 adults. Direct service mental health care providers shall not be counted as mental health care case managers. * * * Section 2.10 provides, in part: The contractor shall be responsible for the coordination and management of mental health care and continuity of care for all enrolled Medicaid recipients through the following minimum functions: A. Minimizing disruption to the enrollee as a result of any change in service providers or mental health care case manager occurring as a result of the awarding of this contract. An offeror may not propose rates exceeding Medicaid's upper payment limit, which "is that amount which would have been paid, on an aggregate basis, by Medicaid under fee-for-service for the same services to a demographically similar population of recipients." 4.11. Section 1.1 TTT defines "Upper Payment Limit" similarly: "The maximum amount Medicaid will pay on a capitated basis for any group of services, based upon fee-for- service Medicaid expenditures for those same services." Section 4.11 sets the range of payment rates at 92-98 percent of the upper payment limit. Each offeror is required to propose a specific payment percentage within the range. Section 4.17 allows offerors to propose a risk corridor of up to 16 percentage points plus and minus the proposed range. The corridor must be equal above and below the capitation rate. The RFP illustrates the risk corridor by applying an 8 point corridor to a 95 percent capitation rate. In this case, the contractor absorbs any plan costs up to 4 percent over the actual payments made to the plan by Respondent or retains any excess plan payments up to 4 percent over the actual costs. Beyond the corridor, the contractor and Respondent share equally in the costs or savings, subject to Respondent's upper payment limit. In no event, however, shall the contractor be entitled to payment from Respondent for "start- up" or "phase-down" costs. Section 4.18 addresses subcontractors: The contractor is fully responsible for all work performed under the contract resulting from the RFP. The contractor may, with the consent of the agency, enter into written subcontract(s) for performance of certain of its functions under the contract. The contractor must have subcontracts with all administrative and service providers who are not salaried employees of the plan prior to the commencement of services under this contract. The contractor shall abide by the requirements of Section 1128A(b) of the Social Security Act prohibiting HMOs and other such providers from making payments directly or indirectly to a physician or other provider as an inducement to reduce or limit services provided to Medicaid enrollees. The contractor must submit signed subcontracts, for a complete provider network in order to obtain agency approval for operation in an area, within sixty days of the execution of this contract, for each proposed subcontracted service provider. Any additional subcontracts must be submitted to the agency twenty days prior to the subcontract effective date. Subcontracts must be approved in writing by the agency's Technical Project Manager prior to the effective date of any subcontract. No subcontract which the contractor enters into with respect to performance under the contract resulting from the RFP shall in any way relieve the contractor of any responsibility for performance of its duties. Amendments to subcontracts must be approved by the agency before taking effect. The contractor shall notify the agency in writing prior to termination of approved subcontracts. The contractor will agree to make payment to all subcontractors within 35 days of receipt of all invoices properly documented and submitted by the subcontractor to the plan. All subcontracts executed by the contractor under the resulting contract must meet the following requirements and be approved by the agency in advance of implementation. All subcontracts must adhere to the following requirements: Be in writing. Specify the functions of the subcontractor. Identify the population covered by the subcontract. Specify the amount, duration and scope of services to be provided by the subcontractor, including a requirement that the subcontractor continue to provide services through any post- insolvency period. Provide that the agency and DHHS may evaluate through inspection or other means the quality, appropriateness, and timeliness of services performed. Specify that the subcontractor has read and agreed to the subcontract and the service provision requirements under section 2 of RFP, for services to be provided under the subcontract, and to the contractor's admission and retention criteria for the services the subcontractor will provide as indicated in the subcontractor's response to section 5.1 F3.b,(5). Provide for inspections of any record pertinent to the contract by the agency and DHHS. Specify procedures and criteria for extension and renegotiation. Provide for prompt submission of information needed to make payment. Require an adequate record system be maintained for recording services, charges, dates and all other commonly accepted information elements for services rendered to recipients under the contract. Require that financial, administrative and medical records be maintained for a period of not less than five years from the close of the contract and retained further if the records are under review or audit until the review or audit is complete. Prior approval for the disposition of records must be requested and approved by the contractor if the subcontract is continuous. Require safeguarding of information about recipients according to 42 CFR, Part 431, Subpart F. Require an exculpatory clause, which survives the termination of the subcontract including breach of subcontract due to insolvency, that assures that recipients or the agency may not be held liable for any debts of the subcontractor. Provide for the monitoring of services rendered to recipients sponsored by the contractor. Specify the procedures, criteria and requirements for termination of the subcontract. Provide for the participation in any internal and external quality assurance, utilization review, peer review, and grievance procedures established by the contractor. Make full disclosure of the method and amount of compensation or other consideration to be received from the contractor. Provide for submission of all reports and clinical information required by the contractor. Make provisions for a waiver of terms of the subcontract, if appropriate. Contain no provision which provides incentive, monetary or otherwise, for the withholding of medically necessary care. Require adherence to the Medicaid policies expressed in applicable Medicaid provider handbooks. Require that the subcontractor secure and maintain during the life of the subcontract worker's compensation insurance for all of its employees connected with the work under this contract unless such employees are covered by the protection afforded by the provider. Such insurance shall comply with Florida's Workers' Compensation Law; and Contain a clause indemnifying, defending and holding the Agency and the plan members harmless from costs or expense, including court costs and reasonable attorney fees to the extent proximately caused by an negligent act or other wrongful conduct arising from the subcontract agreement. This clause must survive the termination of the subcontract, including breach due to insolvency. The contractor shall give the agency immediate notification in writing by certified mail of any action or suit filed and prompt notice of any claim made against the contractor by any subcontractor or vendor which in the opinion of the contractor may result in litigation related in any way to the contract with the agency. In the event of the filing of a petition in bankruptcy by or against a principal subcontractor or the insolvency of said subcontractor, the contractor shall immediately advise the agency. The contractor shall assure that all tasks related to the subcontract are performed in accordance with the terms of the contract. The contractor shall identify any aspect of service that may be further subcontracted by the subcon- tractor. Subcontractors shall not be considered agents of the agency. For evaluation purposes, the RFP divides proposals into two parts: technical and rate, including any rate corridor. The six categories under the technical part, with point values in parentheses, are: Management Summary (0 points), Organization and Corporate Capabilities (100 points), Proposed Staffing Pattern and Licensure of Staff and Facilities (250 points), Operational Functions (400 points), Mental Health Care Service Delivery (400 points), and Transition Workplan (100 points). RFP, 6.1. Section 5.1.C describes the 100-point Organization and Corporate Capabilities as follows: The proposer shall provide in this tab a descrip- tion of its organizational and corporate capabi- lities. The purpose of this section is to provide the agency with a basis for determining the contractor's, and its subcontractors', financial and technical capability for undertaking a project of this size. For the purpose of this tab, the term proposer shall refer to both the contractor and its major subcontractors. It does not refer to the plan's "parent company" unless specifically indicated. Section 5.1 D states the elements of the 250-point Proposed Staffing Pattern and Licensure of Staff and Facilities. Section 5.1 D.3 requires the offeror to disclose "actual and proposed" FTE professionals, including psychiatrists, case managers, psychologists, nurses, and social workers. Section 5.1D.4 requires the offeror to explain how the plan will allocate staff to meet various demands, such as for adoption, sexual and physical abuse counseling, and psychological testing of children. Section 5.1 D.5 requires the proposal to: Describe how the plan will ensure that it has the staff resources appropriately trained and experienced to provide rehabilitative and support services to low income adults with severe and persistent mental illness and, under separate heading, to children with severe and persistent mental illness. Denote the number and percent of total FTEs which will be filled by persons with this type of experience and who will be providing these types of services. Explain the contractor's rationale for the staffing levels indicated and provide a brief, one or two line, description of the training and exper- ience of such persons who will provide these services under the plan. Section 5.1.E describes the elements of the 400-point Operational Functions, in part, as follows: Within this tab, the proposer shall explicitly address its operational capacity to serve Medicaid recipients, and its previous history serving the Medicaid and other low income populations. Separately, the proposer shall address the member services the plan will offer, grievance procedures, quality assurance procedures, the contractor's proposed reporting systems, and the contractor's proposed handling of subcontracts. Service Area of Proposed Plan 42 CFR 434.36 Describe, for each county, how the proposer will meet throughout the lifetime of the contract the 30 minute typical travel time requirement specified in section 2.5 A.1. Describe, for each county, how the proposer will meet throughout the lifetime of the contract the 30 minute typical travel time requirement for child psychiatrists specified in Section 2.5 B.2. Describe, for each county, how the proposer will meet throughout the lifetime of the contract the 30 minute typical travel time requirement for adult psychiatrists specified in Section 2.5 B.1. * * * Section 5.1.F describes the 400-point Mental Health Care Service Delivery category. Section 5.1 F states, in relevant part: This section shall include a detailed discussion of the proposer's approach to providing mental health care. The proposer must be able to document a demonstrated ability to provide a comprehensive range of appropriate services for both children and adults who experience impairments ranging from mild to severe and persistent mental illness. Plans must provide services up to the limits specified by the RFP. They are encouraged to exceed these limits. However, in no instance may any service's limitations be more restrictive than those specified in the Florida Medicaid fee- for-service program. The plan cannot require payments from recipients for any mandatory services provided under this contract. Summary of Services * * * The following is a summary list of the services which may be provided . . . * * * Optional Services Crisis Stabilization Unit * * * z. Other Services (List) * * * Care Coordination 42 CFR 434.52; 10C-7.0524(16), F.A.C. Attach the plan's written protocol describing the plan's care coordination system, which should include the plan's approach to care coordination, utilization review, and assuring continuity of care, such as, verifying medical necessity, service planning, channeling to appropriate levels of treatment, and develop- ment of treatment alternatives when effective, less intensive services are unavailable. The protocol should also address the following questions: * * * 3. Indicate how the contractor will establish services in such a way as to minimize disruption of services, particularly to high risk populations currently served by the department, for children and, separately, for adults. * * * Section 6.3 describes the criteria for evaluating proposals. For Proposed Staffing Pattern and Licensure of Staff and Facilities, the evaluation criteria include, at 6.3 B.3.c: The ability of the proposer to ensure it has, and will continue to have, the resources necessary to provide mental health rehabilitation and support to children who are in the care and custody of the state or who have special needs, such as children who have been adopted or have been physically or sexually abused. About a year ago, Respondent issued RFP 9405, which also sought to procure mental health services on a capitated basis for Medicaid Area 6. Respondent received four proposals, which contained numerous deficiencies. Respondent later withdrew RFP 9405 for revisions to encourage more competition. Concerns over competition involve the role of Community Mental Health Centers (CMHC) in the procurement. CMHCs are publicly funded, not-for-profit entities that traditionally have provided five types of services: emergency, outpatient, day/night, inpatient, and prevention education. CMHCs now also operate crisis stabilization units and supply case management services, as well as specialized children's services, services for aged persons with severe and persistent mental illness, and services for persons with alcohol or drug dependencies. The RFP calls for a wide range of mental health care services, only part of which are community mental health services or other services presently provided by CMHCs. However, CMHCs constitute the only available network of existing providers of community mental health services to Medicaid clients in Medicaid Area 6. Medicaid payments account for about 30 percent of the revenue of Area 6 CMHCs. In late 1992, six CMHCs in Area 6 formed Florida Behavioral Health, Inc. in response to competition from one or more other provider networks, such as Charter. The competitive network of six CMHCs consisted of Manatee Glens Corp., Mental Health Care, Inc., Northside Mental Health Hospital, Peace River Center for Personal Development, Inc., Winter Haven Hospital, and Mental Health Services. Although the six CMHCs are not all of the CMHCs in Area 6, they provide nearly all of the community mental health services to Medicaid clients in Area 6. By early 1993, Florida Behavioral Health, Inc. formed Florida Health Partnership with Options Mental Health, Inc., which is a managed-care provider owned by First Hospital Corporation--a behavioral health management company. With the assistance of Florida Health Partnership, Options Mental Health, Inc. submitted a proposal in response to RFP 9405. An oral or written agreement between Florida Behavioral Health, Inc. and Options Mental Health, Inc. prohibited the six CMHCs from assisting any entity but Options Mental Health, Inc. in responding to RFP 9405. This agreement continues to prohibit the six CMHCs from assisting any entity but Options Mental Health, Inc. in responding to the RFP. The six CMHCs have shared with Options Mental Health, Inc. cost and utilization information. The importance of the unpublished cost information is unclear, and Petitioner has not yet made a public records request to obtain this information. The same is true of unpublished utilization information, which includes information on waiting lists for community mental health services. Any delay in providing community mental health services would have a bearing on the projected demand and thus the cost of a capitated plan. After withdrawing RFP 9405, Respondent revisited the requirement that offerors propose an existing network of providers. In an effort to encourage competition, Respondent deleted a requirement in RFP 9405 that proposals contain existing provider networks. Respondent substituted a requirement that proposals describe provider networks generally, without necessarily including names of subcontractors. Petitioner did not prove any fraudulent, illegal, arbitrary, or dishonest act by Respondent. The main thrust of Petitioner's case is that the effect of the RFP is illegal or arbitrary. Petitioner asserts that the RFP requires a sole source provider or, at minimum, precludes free and open competition. Petitioner argues that the RFP illegally and arbitrarily favors offerors of CMHCs, in partnership with CMHCs, or with subcontracts with CMHCs. Through testimony and argument, Petitioner asserts that various provisions of the RFP either exacerbate or fail to ameliorate the advantages enjoyed by CMHCs, especially due to RFP requirements of implementation of the new provider network in 60 days and with minimal disruption to Medicaid clients. RFP 1.4(2) encourages open and free competition. RFP 2.3 D disclaims any intent that only CMHCs may supply community mental health services. Petitioner's chief witness, Dr. Ronald Mihalick, testified that RFP 2.3 D favors CMHCs because state regulations have designated them the sole provider of community mental health services and government grants have funded their capital expenditures. Neither Dr. Mihalick, Petitioner's other witness, nor Petitioner's counsel has suggested a practical means by which to eliminate this advantage of CMHCs, which cannot, by executive or legislative fiat, be stripped of their buildings, equipment, or experienced staffs, nor of the advantages that may accrue to them by virtue of such assets. It would be counterproductive to eliminate CMHCs from direct or indirect participation in the subject procurement. Nor is Respondent required, if it were legally able, to assign to CMHCs the status of universal providers in order to eliminate illegality or arbitrariness from the RFP. The RFP seeks a broad range of mental health services, of which a substantial part are community mental health services. RFP 2.3 D represents a simple description of community mental health services and expressly negates the inference that only CMHCs may provide such services. RFP 2.3 E and F describes two of the five categories of mental health services: targeted case management and intensive case management, respectively. Intensive case management is a new service, and nothing suggests that Area 6 CMHCs have any direct experience that would give them an advantage in providing this new service, Targeted case management is an existing service provided by CMHCs. There is some doubt whether the RFP provides detailed cost information, including information about targeted case management. However, Petitioner has never made a public records request for such information from any of the CMHCs or Respondent. In any event, Petitioner has hardly presented sufficient evidence regarding targeted case management that the inclusion of such a service in the RFP is arbitrary or illegal. RFP 2.5 prescribes standards for minimum staffing, availability, and access. The minimum staffing standards do not require that existing service providers supply the specified services. For instance, "direct service mental health care providers" must be "licensed or eligible for licensure," as provided in RFP 2.5 B.3.a. Petitioner's objection is that the RFP expresses staffing standards in accordance with Medicaid guidelines, under which the CMHCs are already operating. This objection is puzzling because the procurement is for Medicaid services. In any event, the presence of such a provision does not render the RFP illegal or arbitrary for the reasons already stated. RFP 2.5 B.4 requires staffing ratios of one fulltime equivalency (FTE) per 20 mental health care case managers for children and one FTE per 40 mental health care case managers for adults. Again, though, the RFP does not require that such case managers must be currently employed by a CMHC or even currently providing such services. Petitioner legitimately objects to specifications expressed in terms of FTEs when applied to non-administrative services. The use of FTEs applies to fulltime employees, not to individual therapists who may see Medicaid clients on an occasional basis. The requirement that non-administrative services be expressed in FTEs unduly emphasizes process over product or outcome and is inconsistent with the spirit of the RFP. However, the use of FTEs in RFP 2.5 B.4 does not rise to the level of arbitrariness or illegality. As Respondent's chief witness, Marilyn Reeves, testified, an offeror may convert individual therapists to FTEs, even though the contractor may bear the risk of a faulty conversion formula. RFP 2.10 requires that the contractor implement the new capitated plan with minimal disruption to Medicaid clients, whose mental conditions may worsen from such disruption. Petitioner does not challenge this sensible provision. Petitioner instead argues that other pro-CMHC provisions preclude the implementation of a new plan with minimal disruption. Petitioner has failed to prove that the pro-CMHC provisions, except for 4.18 as discussed below, necessitate more than minimal disruption during the transition. RFP 4.17 provides that Respondent shall not pay the contractor's start-up or phase-down costs. Petitioner's objection is that government grants have paid for the capital expenditures of the CMHCs. For the reasons discussed in connection with RFP 2.3 D, Petitioner has failed to prove how this provision is arbitrary or illegal. RFP 5.1 D assigns 250 points for the proposed staffing pattern and requires the offeror to disclose "actual and proposed" FTE professionals, such as psychiatrists, case managers, and social workers. An offeror that has already identified its personnel may be able to provide a more detailed description and earn more points than another offeror that has yet to find its subcontractors. Likewise, RFP 5.1 D.5 requires a discussion of FTEs, although an offeror with as yet unidentified subcontractors probably can satisfy this section with a more generic discussion and not lose points. In any event, to the extent that the specification in terms of FTEs favors CMHCs, such a provision is not so onerous or unnecessary as to be arbitrary or illegal, as discussed in connection with 2.5 B.4. RFP 5.1 E assigns 400 points for operational functions and requires the offeror to "explicitly address its operational capacity to serve Medicaid recipients, and its previous history serving the Medicaid and other low income populations." Unlike RFP 5.1 C, which requires a proposal to address the contractor and its "major subcontractors," 5.1 E does not mention subcontractors, so this provision favors CMHCs even less than the other provisions of 5 and 6. Perhaps for this reason, neither Petitioner's witnesses nor Petitioner's proposed recommended order addressed RFP 5.1 E. RFP 5.1 F requires an offeror to provide a "detailed discussion," in which it shall "document a demonstrated ability to provide a comprehensive range of appropriate services . . .." An offeror with as yet unidentified subcontractors will likely be unable to supply nearly as much detail as an offeror with subcontractors already in place, but this provision would, if challenged, not be deemed arbitrary or illegal. However, Petitioner challenges only RFP 5.1 F.1 (Optional Services) and 5.1 F.4.a.3. Section 5.1 F.4.a.3 reiterates the requirement that the new capitated plan be implemented so as to "minimize disruption of services." As noted above, Petitioner of course does not object to this requirement, but uses it to show how other provisions are arbitrary or illegal. Petitioner objects to the portion of 5.1 F.1 identifying crisis stabilization units as an Optional Service. Although only CMHCs are licensed to operate crisis stabilization units, the same services are available from other sources, although often not as economically. Moreover, the crisis stabilization unit is only an Optional Service, which Respondent mentioned only for illustrative purposes. The last-cited option, "Other Services (List)," encourages offerors to devise creative options that may not involve such traditional providers as crisis stabilization units. RFP 6.3 B.3.c requires the offeror to ensure that "it has, and will continue to have, the resources necessary to provide mental health rehabilitation and support . . .." Satisfaction of the criteria of 6.3 B, like 5.1 C, D, and F, is easier for CMHCs and harder for contractors with as yet unidentified subcontractors. However, the advantage conferred upon CMHCs is not so great as to render 6.3 B arbitrary or illegal. To varying degrees, RFP 5.1 D.5, E.1, and F.1 (Optional Services) and 6.3 B.3.c prefer CMHCs or offerors affiliated with CMHCs. These provisions potentially conflict with the RFP provisions encouraging free and open competition and prohibiting more than minimal disruptions in service. The potential conflicts are partially attenuated by the ability of an offeror, prior to submitting a proposal, to identify subcontractors that may provide similar services to non-Medicaid clients or provide similar services to Medicaid clients in other areas of Florida or other states. RFP 5.1 D.5, E.1, and F.1 (Optional Services) and 6.3B impose qualitative standards upon the contractor and any subcontractors, whose employees have direct contact with the Medicaid clients. Non-CMHC offerors may nonetheless be able to identify, at the proposal stage, their subcontractors so as to earn the maximum points in these categories. For instance, offerors may find non-CMHC subcontractors providing community mental health services to non- Medicaid clients or to Medicaid clients elsewhere in Florida or the United States. With greater difficulty, non-CMHC offerors with as yet unidentified subcontractors may be able to project, at the proposal stage, features of their subcontractors. They may not be able to score as well as CMHCs and other offerors with already identified networks of community mental health service providers. However, to the extent that non-CMHCs are disadvantaged by these provisions, Petitioner has not shown that the inclusion of these provisions is arbitrary or illegal. These provisions ensure the delivery of quality mental health services. As likely as not, Petitioner has included these provisions after careful consideration of the benefits of further competitiveness and the costs of further limitations upon the participation of CMHCs. The final provision challenged by Petitioner is RFP 4.18, which acknowledges that the contractor may not itself provide the mental health services, but may contract with subcontractors for the provision of these services. Requiring that the contractor have subcontracts prior to the commencement of services under the new capitated plan, Section 4.18 adds that the contractor must submit for Respondent's written approval: signed subcontracts, for a complete provider network in order to obtain agency approval for operation in an area, within sixty days of the execution of this contract, for each proposed subcontracted service provider. Petitioner's challenge to RFP 2.3 D, E, and F; 2.5 A and B.3 and 4; and 4.17 fails because these provisions confer upon CMHCs an insignificant advantage, an advantage upon that could not be removed without eliminating CMHCs from the procurement, or an advantage while specifying an important substantive requirement. Petitioner's challenge to RFP 5.1 D.5, 5.1 E.1, 5.1F.1, and 6.3 B.3.c fails because these provisions, even if conferring significant advantages upon CMHCs, impose important qualitative requirements upon the delivery of mental health services to Medicaid clients. However, RFP 4.18 is different from these other provisions. It does not involve the actual delivery of mental health services to Medicaid clients. Section 4.18 dictates only how long after signing the contract with Respondent the contractor has to implement the new capitation contract. The advantage conferred by 4.18 upon CMHCs is neither trivial nor necessary. The federal waiver runs two years from the actual start-up date of the new capitation plan. Obviously, an inordinate delay in implementation might suggest that the contractor is unable to do the job, but nothing in the record suggests that 60 days marks the beginning of an inordinate delay. Respondent understandably wants to get the pilot project started quickly, presumably in anticipation of important cost savings. But these considerations do not rise to the importance of other provisions involving the actual delivery of mental health services to Medicaid clients. Non-CMHCs, especially offerors with as yet unidentified subcontractors, face a considerable task in plan implementation. For this procurement, only one offeror will have the assistance of the CMHCs, which gives that offeror a clear advantage in at least the community mental health and targeted case management categories. There is no good reason to increase this advantage by imposing an unrealistically short implementation timeframe on contractors. On the other hand, there are two reasons why the 60-day implementation timeframe is arbitrary and illegal: it conflicts with RFP provisions encouraging open competition and it conflicts with RFP provisions prohibiting more than a minimal disruption to clients. The new capitation plan represents a marked departure from past practice. The successful contractor is assuming considerable financial risks when it sets its fees and risk corridor, if any. This risk is spread over a wide geographic area containing some of Florida's most densely populated areas. Anticipated cost savings to the State may result in narrowed profit margins before the contractor can safely realize savings from reductions in the cost of mental health services provided to Medicaid clients. The success of the capitation plan is jeopardized if the contractor underestimates the revenue needed for the successful operation of the plan. The offeror without subcontractors at the time of submitting a proposal needs time to enlist the cooperation of CMHCs or other subcontractors. A witness of Respondent described a possible scenario in which CMHCs declined to cooperate with the contractor and were forced to terminate employees. Although these employees would be available to the contractor, they would not likely be available in a 60-day timeframe. A multitude of tasks confront the non-CMHC contractor, especially if the contractor does not have a subcontractor network in place when submitting the proposal. Not surprisingly, Respondent's witnesses did not offer a spirited defense of the 60-day implementation timeframe, as is partly illustrated by the following testimony of Respondent's chief witness: Q: Is there a reason that the language on Page 61 says "must have signed subcontract within 60 days?" A: No. What it is trying to get at there is that if you are going to start being operational within 60 days, you got to know that you got to get those subcontracts approved by us prior to being able to do that. Respondent's witness readily testified that the deadline would not be enforced, if the enforcement jeopardized the welfare of the Medicaid clients. Of course, given the vulnerability of the clients, Respondent would not require the implementation of an unfinished plan at the end of the contractual implementation timeframe, regardless of the duration of the implementation timeframe. But a rational deadline for implementation would not so readily invite discussions of waivers and extensions. The presence of an impractical deadline misleads offerors. Some offerors may obtain an unfair advantage by structuring their proposals without regard to the implementation timeframe, secure in the knowledge that it will not be enforced. Other offerors may limit Optional Services or avoid more creative delivery or administrative programs in order to ensure that their plans can be implemented within the arbitrarily short implementation timeframe. To eliminate arbitrary and illegal conflicts with other RFP provisions encouraging open competition and prohibiting more than minimal disruptions in service, the implementation timeframe of 60 days must be extended to at least 120 days.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Agency for Health Care Administration enter a final order amending RFP 4.18 by inserting "120" days for "60" days in the second paragraph and making any necessary conforming changes elsewhere in the RFP, and, after making these changes, proceed with the subject procurement. ENTERED on January 31, 1995, in Tallahassee, Florida. ROBERT E. MEALE 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 on January 31, 1995. APPENDIX Rulings on Petitioner's Proposed Findings 1-4: (except that "poisonous" in paragraph 2 is rejected as melodramatic and unsupported by the appropriate weight of the evidence): adopted or adopted in substance. 5: rejected as unsupported by the appropriate weight of the evidence, except for 4.18. 6-7: adopted or adopted in substance, except that Petitioner did not challenge 5.1 E at the hearing or in the proposed recommended order. 8: rejected as irrelevant. 9-13: adopted or adopted in substance. 14: rejected as unsupported by the appropriate weight of the evidence. Petitioner did not prove that the actual information shared by the CMHCs was crucial--only that certain information could theoretically be crucial. 15: adopted or adopted in substance, although other CMHCs operate in Area 6, but do not possess much share of the community mental health services market. 16-17: rejected as irrelevant. 18: adopted or adopted in substance, except for the last sentence, which is rejected as unsupported by the appropriate weight of the evidence (except for 4.18). 19-20: adopted or adopted in substance. 21: rejected as repetitious. 22: adopted. 23-25: adopted or adopted in substance, except for last sentence of paragraph 25, which is rejected as unsupported by the appropriate weight of the evidence. 26-27: adopted or adopted in substance. 28: rejected as unsupported by the appropriate weight of the evidence. 29-33: adopted or adopted in substance, except for last sentence of paragraph 33, which is rejected as unsupported by the appropriate weight of the evidence. 34: adopted or adopted in substance. 35-36: rejected as unsupported by the appropriate weight of the evidence. 37-38: adopted or adopted in substance, although this was hypothetical testimony of one of Respondent's witness, not a formal statement of Respondent's "position." 39 (first sentence): rejected as unsupported by the appropriate weight of the evidence. 39 (second sentence): adopted. 40-44 (second sentence): adopted or adopted in substance. 44 (third sentence): rejected as recitation of evidence. 45: adopted. 46-47: adopted or adopted in substance. 48: rejected as unsupported by the appropriate weight of the evidence. 49: rejected as irrelevant and, except for 4.18, unsupported by the appropriate weight of the evidence. Rulings on Respondent's Proposed Findings 1-5: adopted or adopted in substance. 6: adopted or adopted in substance, except for 4.18. 7: adopted or adopted in substance. 8: adopted or adopted in substance, at least to the extent that Petitioner failed to prove the contrary. 9 (except last sentence): adopted or adopted in substance. 9 (last sentence): rejected as speculative. 10-16: adopted or adopted in substance, although the extent of Petitioner's ability to respond satisfactorily is questionable, as is the rationale for the use of FTEs for non-administrative positions. Additionally, all proposed findings that RFP provisions do not place non-CMHCs at a disadvantage, when such proposed findings conflict with findings in the recommended order, are rejected as unsupported by the appropriate weight of the evidence. COPIES FURNISHED: Douglas M. Cook, Director Agency for Health Care Administration 2727 Mahan Drive Tallahassee, FL 32308 Harold D. Lewis, General Counsel Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, FL 32303 Sam Power, Agency Clerk Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, FL 32303 Seann M. Frazier Mark A. Emanuele Panza Maurer P.A. 3081 East Commercial Blvd. Suite 200 Ft. Lauderdale, FL 33308 Paul J. Martin William H. Roberts Assistant Attorneys General Office of the Attorney General PL-01, The Capitol Tallahassee, FL 32399-1050
Findings Of Fact At all times relevant to the issue in controversy, Leroy Powell and Jonnie Powell operated a child care facility known as Kinderworld, 721 Cordova Avenue, Orlando, Florida, under DHRS provisional child care license number 883- 19, issued August 1, 1983. On April 26, 1984, the Department of HRS received a report alleging that the children enrolled in Kinderworld Day Care Center were suffering emotional abuse and neglect and that the owners and operators of the center had been hostile and violent. On April 27, 1984, at about 8:45 A.M., Steve Fletcher, Intake Counselor for the Department visited the Kinderworld Day Care Center on 721 Cordova Avenue, Orlando, Florida, in order to investigate allegations of emotional abuse and neglect of the children enrolled in this center and of hostile and violent acts committed by the owners and operators. Mr. Fletcher arrived at the center, was escorted to an office and began to explain the purpose of his visit to Jonnie Powell. Leroy Powell, Sr., entered the office, became very upset upon learning of the investigation, left the room, and returned with his daughter, Margaret Sykes. Margaret Sykes and Leroy Powell were extremely agitated and demanded to see a written complaint. Margaret Sykes was screaming, shaking her finger in Steve Fletcher's face and advised Mr. Fletcher that she would not be harassed by HRS and that Mr. Fletcher had better leave before he was thrown out. Mrs. Sykes advised Mr. Fletcher that HRS was involved in a conspiracy to close the center and harass the owners/operators. Mr. Powell accused Mr. Fletcher of being involved in a racial conspiracy and of advancing white supremacy. Mr. Fletcher repeatedly attempted to advise Mr. Powell and Mrs. Sykes of the intent and purpose of his investigation, and the statutory requirement that HRS investigate any allegation of neglect or abuse, but Mr. Fletcher was denied access to the children in the center as well as records of attendance for children enrolled in the center. When Jonnie Powell advised Mr. Fletcher that Leroy Powell and Margaret Sykes were serious in their threats to remove Mr. Fletcher from Kinderworld, he voluntarily left the Center, telephoned his supervisor for instructions and returned to his office for further instruction. At approximately 10:45 A.M., on April 27, 1984, Mr., Fletcher returned to Kinderworld accompanied by his supervisor, Miriam Jennings, District Intake Supervisor, and Mrs. Mary Alice Bailey, Direct Service Aide. The three were admitted to the Center and escorted to an office by Leroy Powell. Mr. Powell was extremely agitated and after securing chairs for the parties, he slammed them with great force upon the floor. Margaret Sykes and Leroy Powell, Jr., were also present. Mrs. Jennings introduced herself, Mr. Fletcher, and Mrs. Bailey; explained the purpose of the investigation; and requested access to children in the Center as well as attendance records. Margaret Sykes and Leroy Powell, Sr., demanded to know the name of the child abuse reporter; accused the Department of harassment and a racial conspiracy to close Kinderworld; and demanded a written complaint. Margaret Sykes was pacing about, pointing an accusing finger in Steve Fletcher's face, and talking in a loud voice. Ms. Sykes was speaking in a voice loud enough to be heard by the children who were outside in back of the Center. Margaret Sykes left the interview, went to the back of the building and began to scream at and in the presence of the children in the Center in such a hysterical tone that her words could not be discerned. Because of the volatile situation, hostile atmosphere, and concern for the well being of the children in the Center, Mr. Fletcher, Ms. Jennings, and Ms. Bailey left the Center and Mr. Fletcher called for the assistance of law enforcement in bringing the situation under control and securing Kinderworld attendance records. Officer Kevin Lavigne, Orlando Police Department, responded immediately to the call for assistance, before Steve Fletcher had returned to Kinderworld, and was met by Leroy Powell, Sr., who advised Officer Lavigne that there had been no problem at the Center. At this time Steve Fletcher, Miriam Jennings and Mary Bailey returned to the Center and, with the assistance of Officer Lavigne, attempted to review attendance records. The situation worsened, Officer Lavigne was concerned about the safety of himself and others, and called for assistance. Several other Orlando Police Department officers responded, including Sgt. Thomas E. Langford. Mr. Powell announced to those persons present that the Center was closed. Margaret Sykes and child care assistants gathered the children at the Center, placed them in a line and caused them to march out of the Center and around the flag pole in front of the Center singing, "It's A Small World After All." Ms. Sykes was shouting instructions to the children, ages 3-6, who were made to stand in the hot sun. The children observed the altercation between Mr. Powell and Ms. Sykes and law enforcement and HRS personnel. The children were upset and confused, and several children were crying. Sgt. Langford attempted to discuss the matter with Mr. Powell and Ms. Sykes, but Ms. Sykes physically bumped and pushed Sgt. Langford with her chest and advised Sgt. Langford in a very loud voice that he would not close her business. Sgt. Langford pushed Ms. Sykes away from his person and his weapon, but was again physically bumped by Ms. Sykes. At this point Sgt. Langford placed Margaret Sykes under arrest for battery on a law enforcement officer. During her arrest, Ms. Sykes refused to cooperate, requiring two officers to carry her to the police vehicle while she called to the children to observe how the police treated black people. Bystanders had gathered and the children observed the entire incident, cried and were upset. HRS officials suggested that the children be taken out of the sun and away from the front of the Center. Mary Bailey observed the children being roughly shoved and pulled by the arm around to the back of the Center. The children were upset and crying. The provisional license of Leroy and Jonnie Powell, d/b/a Kinderworld was suspended on April 27, 1984, because the actions of Leroy Powell, Jonnie Powell, and Margaret Sykes constituted an immediate danger to the children in the center, subjecting the children in the Center to danger, subjecting them to physical and emotional abuse and placing children in the Center at risk for continued abuse. Subsequent investigation conducted by Stephen Fletcher and Catherine Craney of the Department of Health and Rehabilitative Services revealed several previous incidents of emotional abuse which had occurred at Kinderworld while Leroy Powell, Sr. Jonnie Powell, and Margaret Sykes were responsible for operating the Center.
Recommendation Based upon the foregoing, it is RECOMMENDED that the child care license of Petitioners be revoked. DONE and ENTERED this 22nd day of February, 1985, in Tallahassee, Leon County, Florida. DIANE K. KIESLING 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 22nd day of February, 1985. COPIES FURNISHED: Leroy and Jonnie Powell 721 Cordova Avenue Orlando, Florida 32804 Melissa Storey, Esquire Department of Health and Rehabilitative Services 400 West Robinson Street Suite 911 Orlando, Florida 32801 Mr. David Pingree Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue The issue is whether petitioner's request for an exemption from disqualification from employment in a position of special trust should be granted.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: This case involves a request by petitioner, Alvin V. Walker, for an exemption from disqualification from employment in a position of special trust. If the request is approved, petitioner intends to work in the psychiatric wing of a local hospital with persons suffering from mental illness. Respondent, Department of Health and Rehabilitative Services, is the state agency charged with the responsibility of approving or denying such requests. Petitioner is now barred from doing such work because of a disqualifying offense which occurred on August 8, 1990. On that date, petitioner was arrested for the offense of "prostitution," a misdemeanor under Chapter 796, Florida Statutes. The circumstances surrounding the incident were not discussed at final hearing. However, the Florida Department of Law Enforcement report stipulated into evidence indicates that on April 30, 1991, adjudication of guilt was withheld by the Duval County Court, and the arrest was sealed. Although the denial of petitioner's request was based solely on his 1990 arrest, at hearing petitioner candidly acknowledged that in 1992 he was invited into the automobile of an undercover police officer in Duval County and was asked what type of sexual things he liked to do. After answering the question, he was given a citation for an undisclosed offense and later pled nolo contendere to the charge. For this, he received one month's probation. Since that time, his record is unblemished. Shortly after the 1992 incident, petitioner began counseling sessions with a mental health counselor. He has continued his therapy since that time. The counselor described petitioner as a "very decent" person with "high morals," and someone who has shown improvement in terms of stability since he began his counseling sessions. From June 1993 until May 1995, petitioner was employed as a rehabilitation counselor with Renaissance Center, Inc. (Renaissance), a residential treatment facility for adults eighteen years of age and older with chronic mental illnesses. In June 1995, Renaissance was acquired by Mental Health Resources and petitioner continued doing the same type of work for the successor firm. He left there in January 1996 for employment with the St. Johns River Hospital as a mental health assistant in the facility's psychiatric unit. In April 1996, however, a background screening disclosed his 1990 arrest, and he was forced to resign pending the outcome of this proceeding. If petitioner's request is approved, the facility will rehire him. Petitioner's former employer at Renaissance established that petitioner was a very conscientious, responsible, and reliable employee who poses no threat to his clients. The employer considered petitioner to be of "good moral character." For the last four or five years, petitioner has been actively involved in the "Outreach" ministry of his church. That program involves providing spiritual support, services and counseling to prisoners in the Duval County Jail each Sunday with follow-up sessions during the week. Members of his church attested to his good moral character. Based on the testimony of witnesses Britt, Toto, Cross and DeWees, as corroborated by petitioner's own testimony, it is found that petitioner has presented sufficient evidence of rehabilitation since his 1990 arrest, he is of "good character," and he poses no threat to the safety or well-being of his clients. The request for an exemption should accordingly be approved.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Health and Rehabilitative Services enter a final order granting petitioner's request for an exemption from disqualification for employment in a position of special trust. DONE AND ENTERED this 10th day of September, 1996, in Tallahassee, Florida. DONALD R. ALEXANDER, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675, SunCom 278-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of September, 1996. COPIES FURNISHED: Gregory D. Venz, Agency Clerk Department of Health and Rehabilitative Services 1317 Winewood Boulevard, Room 200-X Tallahassee, Florida 32399-0700 Richard E. Doran, Esquire Department of Health and Rehabilitative Services 1317 Winewood Boulevard, Room 204 Tallahassee, Florida 32399-0700 Pauline M. Ingraham-Drayton, Esquire 200 West Forsyth Street, Suite 80 Jacksonville, Florida 32202 Roger L. D. Williams, Esquire Post Office Box 2417 Jacksonville, Florida 32231-0083
Findings Of Fact In December, 1984, Petitioner, a black female, began employment with the Respondent. The Petitioner was hired for two positions. In one position, the Petitioner was employed as a (40 percent FTE) Cook, working 40 percent of a full time 40 hour work week, or 16 hours weekly. In the other position, the Petitioner was employed as an "on-call" Mental Health Technician I. The Mental Health Technician employment was an OPS (other personnel services) position with no regularly scheduled working hours. Her place of employment was the geriatric residential treatment system (GRTS) center at Bristol, Florida. On July 11, 1986, the Petitioner was transferred from the OPS Mental Health Technician position to a (50 percent FTE) Mental Health Technician position. In the new position, which entailed completion of a six month probationary period, the Petitioner worked 50 percent of a full time 40 hour work week, or 20 hours weekly. Combined with the job as Cook, Petitioner was employed for 36 hours weekly. At some point prior to the end of 1986, the Petitioner wrote to Ronald Kirkland, executive director for the Respondent. The Petitioner apparently felt that she was the subject of discrimination. The Petitioner demanded that Mr. Kirkland meet with her. She was advised to proceed in accordance with the Apalachee Center's personnel grievance procedure. Assistance in filing a grievance was offered to her, but she refused and continued to demand that Mr. Kirkland personally meet with her. The demand was rejected. In January, 1987, the Petitioner was informed that her job performance in the Mental Health Technician position was not satisfactory. At a meeting, held January 20, 1987, the Petitioner was given a memorandum (dated January 12, 1987) detailing a number of issues which were the basis for her unsatisfactory evaluation. (R-1) Such issues generally included disagreements over working hours, noncooperation with coworkers and abusiveness towards the Program Supervisor. The Petitioner acknowledged the memorandum, and stated that she believed it to be "unreasonable." Due to the unsatisfactory nature of her performance, the probationary period was extended for three months. At the end of the three month extension, in April, 1987, she was again evaluated. She received an above satisfactory evaluation in all categories except attitude, which was satisfactory. By March, 1987, the Respondent had determined that problems existed with the day treatment program at the Bristol GRTS facility and began planning to fully evaluate the operation. The Petitioner was working in the day treatment program. Laura Harris, Day Treatment Coordinator for the Respondent, was assigned to perform the review by Dr. William Perry, Respondent's Director of Geriatric Services. The process began in April, 1987. The staff of the Bristol GRTS facility was notified that the review was being performed and that Ms. Harris would be visiting at specific times to observe their performance. Ms. Harris requested that each day treatment staff person prepare four activities for GRTS clients and attempted to schedule times to observe the staff's presentation of the activities. The Petitioner failed to respond to Ms. Harris' request and did not schedule activity observation sessions. Eventually, Ms. Harris attended one of the Petitioner's activities periods without providing advance notice. Other day treatment staff were responsive to Ms. Harris' requests and cooperated with her suggestions. The Petitioner was not cooperative. The review period continued through August, 1987. On May 5, 1987, the Petitioner resigned from her position as Cook, effective May 18, 1987, and advised her program supervisor that she was available for additional employment as an OPS Mental Health Technician. The Petitioner's requested additional employment would have been during the evening, night and weekend shifts. The request was based on the departure, several weeks earlier, of the person employed as the 11:00 p.m. to 7:00 a.m. Mental Health Technician. The 11:00 p.m. to 7:00 a.m. shift is less popular and more difficult to staff than other work periods. Janey Hall, a black female, is the Bristol GRTS supervisor responsible for securing staff coverage for the evening shifts. The OPS evening shift assignments were generally rotated among staff members. However, due to the difficulty in staffing the 11:00 p.m. to 7:00 a.m. shift, Ms. Hall proposed assigning the coverage to a single individual. The proposal was approved by the Bristol GRTS program supervisor and by Dr. Perry. Ms. Hall selected Penny Mize, a white female, to work the 11:00 p.m. to 7:00 a.m. shift until a permanent employee was hired for the shift. Ms. Mize began working the shift immediately upon the departure of the former employee. There were occasions when black employees filled in for Ms. Mize. As to the Petitioner's request for additional employment hours, the Respondent's supervisory staff was concerned about the Petitioner's ability to successfully respond to the demands of evening, night and weekend shifts. Those shifts provide less supervision of employees than does the day shift. Due to previously noted problems with the Petitioner's job performance, as reported to Dr. William Perry, it was determined that the Petitioner required greater supervision than was available to her on the OPS shifts. Accordingly, her request for additional OPS hours was rejected on May 13, 1987, by Dr. Perry. On May 21, 1987, the Petitioner filed a complaint with the Florida Commission on Human Relations, FCHR No. 87-3619, alleging that the denial of her request for OPS hours as a Mental Health Technician was based on racial discrimination. The Petitioner alleged that Ms. Mize, a white employee, was permitted to work the additional hours, 11:00 p.m. to 7:00 a.m. There was no evidence presented by the Petitioner which would indicate that the denial of her request for the additional hours was racially motivated or based on any factor other than her job performance and the decision to limit her employment to more closely supervised shifts. Subsequent to the Petitioner's filing of FCHR 87-3619, Laura Harris completed the review of the Bristol GRTS facility. Based upon her review she prepared an evaluation of the Petitioner's job performance and a corrective action plan which specified steps the Petitioner was directed to complete in order to continue her employment and improve her job skills, both dated August 26, 1987. (R-3, R-4). The evaluation was severely critical of the Petitioner's attitude, and her unwillingness to work towards improving her interaction with co-workers and facility clients. The evaluation recommended that her employment "be terminated immediately". The Petitioner received the documents on September 10, 1987. Her written comments on the documents indicate that she disputed Ms. Harris' evaluation, and noted that she alone was being required to comply with the corrective action plan. However, the plan was related to the lack of effort and cooperation the Petitioner demonstrated during the Harris review. Other employees, black and white, were cooperative and no other corrective action plans were necessary. During the summer of 1987, the Respondent determined that additional assistance in providing nursing services to Bristol GRTS clients was required. The Respondent initiated establishment of a part-time Licensed Practical Nurse position and decided to delete the Petitioner's Mental Health Technician position to fund the new LPN. On October 15, 1987, the Petitioner was advised by Dr. Perry that the Mental Health Technician position was being eliminated to provide for the LPN position. Dr. Perry proposed to the Petitioner that she accept a position as Cook which would provide 32 hours weekly employment. The Petitioner's period of employment as Cook had been satisfactory. The Petitioner did not agree or refuse to accept the position, but said she would consider it. On October 26, 1987, Laura Harris prepared a follow-up evaluation to the corrective action plan of August 26, 1988. Ms. Harris noted improvement in the Petitioner's performance, although there were substantial problems remaining. Apparently, unaware that the Petitioner's Mental Health Technician position was being eliminated to provide for an LPN position, Ms. Harris recommended that the Petitioner be reevaluated on November 30, 1987. On October 27, 1987, Dr. Perry contacted the Petitioner and informed her that she would be transferred to the Cook's position and that her salary as Cook would remain at the same level as her Mental Health Technician salary, causing no reduction in her rate of pay as could have occurred. The following day, Dr. Perry met with the Petitioner and reiterated the proposal. There was no response from the Petitioner. On November 12, 1987, Dr. Perry delivered a letter, dated November 2, 1987, from Mr. Kirkland, executive director of the Respondent, confirming the prior discussions between Dr. Perry and the Petitioner. The letter stated that her employment as Mental Health Technician would cease on November 12, 1987, and that she would be paid for two additional weeks in lieu of notice. Alternatively, the letter stated that she could begin employment in the Cook's position on November 13, 1987. At the time the letter was delivered, the Petitioner stated that, due to the lack of child care availability, she could not begin the Cook's job on November 13. Dr. Perry suggested she begin on November 16, but the Petitioner refused. The Petitioner's employment at the Bristol GRTS facility concluded on November 12, 1987. In December, 1987, she filed a complaint with the Florida Commission on Human Relations, FCHR 88-1288, alleging that the elimination of her position as Mental Health Technician was in retaliation for the filing of her earlier complaint. There was no evidence that the Respondent's decision to employ an LPN instead of a Mental Health Technician was in retaliation for the earlier complaint or based on any consideration other than to better provide nursing care to the elderly clients of the Bristol GRTS facility. The evidence indicates that the decision to eliminate the Petitioner's position, rather than the position of another Mental Health Technician, was based on the Petitioner's poor job performance during the Harris evaluation period and was made without regard to the earlier complaint. Although at the hearing, the Petitioner repeatedly accused the Respondent's witnesses of perjured testimony, there is no evidence to support the accusation.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Florida Commission on Human Relations enter final orders dismissing the Complaints and Petitions for Relief in FCHR Cases No. 87-3619 and 88-1288. DONE and ENTERED this 21st day of December, 1988, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 21st day of December, 1988.
