Findings Of Fact The Petitioner is a corporation in the business of providing home health care services. The Department of Health and Rehabilitative Services is responsible for licensing home health care agencies. The Petitioner applied for a license to operate such a business by filing an application with the Department on May 13, 1976. In its application the Petitioner indicated that it would serve Pinellas County. The Florida Gulf Health Systems Agency, a private entity created in accordance with Federal Public Law 93-641, was asked by the Department to consider the need for the services that the Petitioner proposed to provide. The Florida Gulf Health Systems Agency ("HSA" hereafter) submitted the application to a Pinellas County subcommittee. Need for the services was considered only in relation to Pinellas County. The HSA issued a "Statement of Need" indicating that there was a need for the services. The Department issued a license to the Petitioner on September 16, 1976. The license, by its terms, did not set any geographic limitation for the Petitioner; however, the Petitioner's application related only to Pinellas County. On April 20, 1977, the Petitioner sent a letter to the Department which provided as follows: We have received numerous requests from our upper Pinellas County hospitals to care for their patients in Pasco County. We are cur- rently licensed to serve only Pinellas County and I am therefore requesting our license be extended to include Pasco County. Our office for that area would be located in Tarpon Springs, which is in Pinellas County. On June 1, representatives of the Petitioner and the Department had a telephone conversation. The Petitioner confirmed the conversation with the following language: Thank you for your attention in the matter of license for the extension of service into Pasco County. It is my understanding, from your conversa- tion with Ms. Schreck, our Director of Nursing, that we can now service patients in Pasco County. It is also my understanding that we must abide by the following specifications: "That our office remain in Pinellas County and that we can prove ade- quate supervision of personnel". The Department confirmed the conversation as follows: This is to confirm our telephone conversation of June 1st. After talking with Ms. Gage, it was decided that it would be permissible for an office to be open in Tarpon Springs if the staff were supervised daily and the super- vision was documented. Should an office be opened in another county, a license would be necessary. Shortly thereafter the Petitioner began serving patients in Pasco County without regard to whether the patients had been hospitalized at Pinellas County hospitals. Petitioner made capital expenditures, added employees, and expanded their operations in order to provide such services. By application dated June 13, 1977, the Petitioner applied for a license for its second year of operation. The application provided that the geographic area served would be Pinellas and Pasco Counties. The application was not submitted to the Florida Gulf Health Systems Agency, and a license was issued by the Department which contained no geographical limitation. In January or February, 1978, the Department advised the Petitioner that it could not serve all patients in Pinellas County, but rather only those who had been discharged from Pinellas County hospitals. The Department's position was reflected in a letter dated February 7, 1978. The Petitioner accordingly indicated that it would file an application for certificate of need (a certificate of need was not required at the time the Petitioner was originally licensed, but was required at this later date). The Department further clarified this position in a letter dated May 1, 1978, and invited the Petitioner to request a hearing. This proceeding ensued. The Petitioner was originally seeking authorization to serve patients in Hillsborough, Manatee, and Pasco Counties in addition to those in Pinellas County. At the hearing the Petitioner dropped its efforts to receive approval to serve patients in Hillsborough and Manatee Counties. On September 1, 1978, the Petitioner was issued a license by the Respondent for the 1978-79 year. The license limited the providing of services to Pinellas County.
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint, and, if so, what sanctions, if any, should be imposed.
Findings Of Fact Based on the evidence adduced at the final hearing and the record as a whole, including the factual stipulations contained in parties' Joint Prehearing Stipulation,2 the following findings of fact are made: Respondent operates a Skilled Nursing Facility (Facility) located at 5725 N.W. 186th Street in Hialeah, Florida. The Facility is licensed by the Agency under Chapter 400, Part II, Florida Statutes. Aida Rodriguez has been a Florida-Certified Nursing Assistant (CNA) for the past three or four years. Ms. Rodriguez was employed as a CNA at the Facility on a part-time basis from November 6, 2002, until March 31, 2003, when she resigned for "family reasons." She worked only Fridays, Saturdays, and Sundays. Among the residents living in the Facility during the period of Ms. Rodriguez's employment were Residents 16 and 30.3 In accordance with his care plan, when Resident 30 was in the dining room for a meal, "staff [were] supposed to keep an eye on him" and "encourage him and attempt to assist him [if] he stop[ped] feeding himself" and needed help. Resident 30's daughter was often with her father at mealtime and provided him with whatever assistance he required, thus obviating the need, on these occasions, for staff intervention. On Saturday, March 15, 2003, Ms. Rodriguez was in the dining room when she observed Resident 30, without his daughter, seated at a table with a plate of uneaten food, that had been served a half an hour earlier, in front of him. Ms. Rodriguez approached Resident 30 and "offered him help." Ms. Rodriguez, who is bilingual in Spanish and English,4 spoke to Resident 30 in Spanish. Resident 16, who was nearby, interjected. She rebuked Ms. Rodriguez by telling her, "Don't touch him because the daughter is coming to assist him with feeding." Ms Rodriguez replied, in English, to Resident 16, who is not Spanish-speaking, "Let me ask Resident 30." Ms. Rodriguez then asked Resident 30, "Do you want water? Do you want me to help you?" Resident 30 responded, "Give me water." Ms. Rodriguez did as she was asked. After Resident 30 finished the glass of water Ms. Rodriguez had given him, Ms. Rodriguez asked Resident 30 if he "want[ed] to eat." When Resident 30 responded in the negative, Ms. Rodriguez left and tended to other business. At no time did Ms. Rodriguez tell Resident 16 to "shut up" or that Resident 16 should "mind [her] own business." At no time did Ms. Rodriguez force Resident 30, against his will, to eat or drink.5 Jeannette Barrett is now, and was at all times material to the instant case, a Florida-Licensed Practical Nurse (LPN) employed at the Facility. Ms. Barrett was in the dining room on March 15, 2003, when Ms. Rodriguez came over to the area where Residents 16 and 30 were seated. From her vantage point, Ms. Barrett was able to visually observe the encounter. Ms. Barrett did not "see Resident 30 get upset or aggravated during that meal." Ms. Barrett was unable to "hear any conversation between [Ms.] Rodriguez and Resident 16." As Resident 16 was leaving the dining room in her wheelchair, she "calm[ly]" told Ms. Barrett that she did not want Ms. Rodriguez "put[ting] [her] back to bed." When Ms. Barrett asked her why, Resident 16 responded, untruthfully, that Ms. Rodriguez had told her to "mind [her] own business" when she had suggested to Ms. Rodriguez that perhaps Resident 30 did not want to eat because he was waiting for his daughter to come and feed him.6 Ms. Barrett immediately informed the LPN who supervised the CNAs on Resident 16's "side" of the Facility of Resident 16's request and, in accordance with Facility policy, another CNA was assigned to care for Resident 16. Delia Rudio was the Director of Nursing at the Facility from February 11, 2002, until July 31, 2003.7 Ms. Rudio was not at the Facility on March 15, 2003. She was off from work that weekend. Upon Ms. Rudio's return to the Facility the following Monday, March 17, 2003, Ms. Barrett reported to Ms. Rudio about the conversation she had had with Resident 16 the previous Saturday and asked Ms Rudio to speak with Resident 16 and Ms. Rodriquez to sort out what had really happened in the dining room. Ms. Barrett brought the matter to Ms. Rudio's attention because it would have been "rude," in Ms. Barrett's opinion, for Ms. Rodriguez to have told a resident to "mind [her] own business." Tony Farinella is now, and was at all times material to the instant case, the Administrator of the Facility. On March 17, 2003, Mr. Farinella conducted a department supervisors meeting, at which (as his notes of the meeting, which were offered and received into evidence as Respondent's Exhibit 9, reflect) he was advised, by Ms. Rudio, of the "concerns" that Resident 16 had expressed, over the weekend, to Ms. Barrett regarding Ms. Rodriguez. That same day, after having received Ms. Barrett's report on the matter, Ms. Rudio spoke with Resident 16, Ms. Rodriguez, and other CNAs who were on duty at the Facility the previous Saturday with Ms. Rodriguez. Ms. Rudio asked them if there had been any problems at the Facility over the weekend. They all responded in the negative, indicating that the weekend had been uneventful with no unusual occurrences. Having talked to these individuals, Ms. Rudio reasonably believed that "nothing had occurred . . . over the weekend" that required her to take any remedial action. Ms. Rodriguez was not formally suspended pending Ms. Rudio's inquiry; however, Ms. Rudio concluded her inquiry before Ms. Rodriguez was next scheduled to report to work. Prior to the relicensure survey that led to the filing of the instant Administrative Complaint, Ms. Rudio did not document that she had done anything in response to the report she had received from Ms. Barrett concerning Resident 16's allegations against Ms. Rodriguez. Ms. Rudio, though, did verbally relate, at a department supervisors meeting conducted by Mr. Farinella on March 18, 2003, that she had looked into the matter and found that, in fact, there had been "no problem[s]" involving Resident 16 the previous weekend (as Mr. Farinella's notes of the meeting, which were offered and received into evidence as Respondent's Exhibit 10, reflect). The Agency conducted its relicensure survey of the Facility from March 31, 2003, through April 3, 2003. Elizabeth Rojas-Mariaca, a Health Facility Evaluator II with the Agency, was involved in conducting the survey. Resident 16 was interviewed during the survey. She alleged that, some time previous, Ms. Rodriguez had "told her to shut up and mind her own business" and that she (Resident 16) had "brought those allegations to the [attention of] the LPN [Ms. Barrett]." Resident 16 indicated that she "fe[lt] bad[ly] because Ms. Rodriguez was nasty and mean to [her]," but "still work[ed] there" at the Facility. Ms. Rojas-Mariaca spoke to staff at the Facility, including Ms. Barrett and Ms. Rudio, about Resident 16's allegations. She did not communicate, however, with either Ms. Rodriguez or Resident 30. When Ms. Rojas-Mariaca initially requested "some type of documentation" showing that, in accordance with the Facility's policy, an "investigation [into Resident 16's allegations] had been done" and documented, the Facility was unable to produce any such documentation. Shortly thereafter, however, the Facility prepared such documentation. Copies thereof were provided to Ms. Rojas- Mariaca and placed in the file the Facility maintained on Resident 16. The documentation accurately indicated that the Facility's investigation had revealed that Resident's 16's allegations were unfounded. Cindy Goldman, a Public Health Nutrition Consultant with the Agency, also participated in the survey. While at the Facility on April 1, 2003, Ms. Goldman went into a room in the sub-acute wing of the Facility shared by Resident 31 and another resident. Resident 31 was a recent admittee to the Facility. While she was "able to move her upper extremities" freely, as an amputee with only one leg, she needed assistance moving the lower half of her body. She was unable to, among other things, get on or off a bedpan by herself. When Ms. Goldman entered Resident 31's room, she observed Resident 31 lying in her bed with a bedpan under her buttocks. Resident 31 complained to Ms. Goldman that she was "in pain" as a result of having "been on the bedpan since yesterday"8 and she asked if Ms. Goldman could help her. There was a "call bell" tied to the upper bed rail to the right of Resident 31, which Ms. Goldman asked Resident 31 to "try to reach." Resident 31 moved her arm but not far enough to make contact with the "call bell." Ms. Goldman then activated the "call bell" to get assistance for Resident 31. Linda Mohammad, an LPN at the Facility, was in the sub-acute wing of the Facility when she noticed the "call light" outside of Resident 31's room was on. Ms. Mohammad was not "the person who [had] placed [Resident 31] on the bedpan."9 Ms. Mohammad nonetheless went to Resident 31's room and, after knocking on the door and entering the room, asked if she could be of any assistance. Ms. Goldman, who was standing in between the two beds in the room, responded that, according to what she had been told, Resident 31 had "been on the bedpan since yesterday." Ms. Mohammad then went to Resident 31's bedside. Resident 31 was "[i]n a normal position [on the bed] with her head up toward the head of the bed [which was elevated at approximately a 45 degree angle] on the pillow." As was apparent to Ms. Mohammad, based upon her past experiences with Resident 31, the "call bell" on the upper bed rail was within Resident 31's reach. On previous occasions, Ms. Mohammad had come to Resident 31's assistance in response to the activation of Resident 31's "call bell" and had found Resident 31 in the same position in relation to the "call bell" as she was in on this particular occasion.10 After putting on gloves, turning off the "call bell," and closing the privacy curtain around Resident 31's bed, Ms. Mohammad cleaned Resident 31 and removed and emptied the bed pan that she had been on. At no time did Resident 31 complain to Ms. Mohammad that she was in pain. When Ms. Mohammad "asked [Resident 31] if she was okay," Resident 31 "stated that she was fine." Ms. Mohammad re-opened the privacy curtain and left the room (which Ms. Goldman had already vacated), but not before making "sure [that Resident 31] was comfortable" and that "the call bell was still within [Resident 31's] reach."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Agency issue a final order dismissing the instant Administrative Complaint in its entirety. DONE AND ENTERED this 22nd day of December, 2003, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 2003.
Conclusions THIS CAUSE comes before the Agency For Health Care Administration (“the Agency") concerning Certificate of Need ("CON") Application No. 10183, which was filed by Rockledge HMA, LLC/Wuesthoff Medical Center-Rockledge (“Wuesthoff Rockledge”) in the first batching cycle of 2013, and preliminarily denied by the Agency. 1. On July 9, 2013, Wuesthoff Rockledge filed a Petition for Formal Administrative Proceeding contesting the preliminary denial to establish a 15-bed comprehensive medical rehabilitation unit, which was forwarded to the Division of Administrative Hearings (“DOAH”). 2. On July 11, 2013, HealthSouth of Sea Pines Limited Partnership d/b/a HealthSouth Sea Pines Rehabilitation Hospital (“HealthSouth”) filed a Petition for Leave to Intervene supporting the Agency’s denial of Wuesthoff Rockledge’s CON application. Filed July 14, 2014 10:32 AM Division of Administrative Hearings 3. On July 23, 2013, DOAH entered an Order Granting Petition to Intervene. 4. On June 18, 2014, Wuesthoff Rockledge filed a Notice of Voluntary Dismissal. It is therefore ORDERED: 1. The denial of CON Application 10183 is UPHELD. ORDERED in Tallahassee, Florida, on this /7 day of Tetley , 2014. Agency for Heglth Care Administration
Other Judicial Opinions A party that is adversely affected by this Final Order is entitled to seek judicial review which shall be instituted by filing one copy of a notice of appeal with the agency clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Final Orger has been furnished by US. Mail or interoffice mail to the persons named below on this [0 day of ety 2014. Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308 (850) 413-3630 Copies Furnished to: W. David Watkins Administrative Law Judge Division of Administrative Hearings (Via Electronic Mail) Geoffrey D. Smith, Esquire Susan Crystal Smith, Esquire Corinne T. Porcher, Esquire Smith and Associates Suite 201, 3301 Thomasville Road Tallahassee, Florida 32308 Attorneys for Rockledge HMA, LLC d/b/a Wuesthoff Medical Center-Rockledge (U.S. Mail) R. Terry Rigsby, Esquire Pennington, P.A. Post Office Drawer 10095 Tallahassee, Florida 32302 Attorney for HealthSouth of Sea Pines Limited Partnership d/b/a Healthsouth Sea Pines Rehabilitation Hospital (U.S. Mail) Richard Joseph Saliba Assistant General Counsel Agency for Health Care Administration (Electronic Mail) Facilities Intake Agency for Health Care Administration (Electronic Mail)
The Issue Petitioner's charge of discrimination alleges that the Orange County School Board discriminated against her on account of her age and race when the school board dismissed her in July 1994. Although the school board told her that she was dismissed because she did not have a college degree, allegedly another (white) employee without a degree was not dismissed. Petitioner alleges that, in violation of policy, the school board did not assist her to find another position and that since her dismissal younger employees were hired in positions in which she could have worked. The issue in this case is whether Petitioner was discriminated against, as alleged, and if so, what relief is appropriate.
Findings Of Fact Petitioner Ada J. Sims is an African-American female born October 28, 1934. She resides in Orlando, Orange County, Florida. During the 1993/94 school year, Ms. Sims was employed as an occupational specialist by the Orange County School Board (OCSB). She was assigned to Cypress Creek High School. Ms. Sims worked for the OCSB for 26 years; the first 4 or 5 were in clerical positions, and the last 22 years were as an occupational specialist at various schools. Ms. Sims does not have a college degree. Sometime during the 1993/94 school year, Ms. Sims was offered and accepted an early retirement opportunity. She expressed her intent to retire effective December 1994. The last day of school was the end of May 1994. At that time Ms. Sims understood that she still had a job at Cypress Creek High School for the beginning of the 1994/95 school year. Sometime during the early summer in 1994, the superintendent of schools and the OCSB realized the need to reduce instructional positions in order to keep expenditures within an available budget. The certification area, "occupational specialist," was identified for the reduction in force. On or about July 19, 1994, Cypress Creek assistant principal Cathy Thompson spoke to Ms. Sims by telephone to inform her that she was no longer employed and that she should call the personnel department for further information. Ms. Sims was upset and called the personnel office. She also visited the office, wrote letters to the school board chairperson and superintendent, and contacted the Classroom Teacher Association. Ms. Sims felt that people were evasive and non-responsive. No one helped her find other employment. Sometime between August and December 1994, Ms. Sims began receiving her retirement benefits. Since then, she has been employed only part-time: briefly for a newspaper and now with Haitian Social Services. In her complaint of discrimination, Ms. Sims is claiming $15,000 in lost wages and $5,000 for "pain and suffering." Mary Bailey is employed by the OCSB Division of Human Resources. A former classroom teacher and principal, she has worked for the OCSB for 33 years. Ms. Bailey was the supervisor for the reduction in force which eliminated Ms. Sims' position. There were approximately 12-15 occupational specialist positions in the OCSB in May 1994. All but 2 or 3 were eliminated. In determining which positions were eliminated the incumbent's job history was reviewed to determine seniority. White and African-American employees were laid off. The only employees retained were those with college degrees who could obtain a teaching certificate and be placed in a regular instructional position. Ms. Sims, without a college degree, did not qualify for this placement. There was no consideration of age or race; the regular OCSB policy and collective bargaining agreement procedures were applied. No one offered Ms. Sims a clerical position or other non-instructional position; she was told she could apply for another position on her own. Elaine Manfriede, the white employee who Ms. Sims claims was retained, found a clerical position on her own. Ms. Manfriede's occupational specialist position was eliminated.
Recommendation Based on the foregoing, it is recommended that the Florida Commission on Human Relations enter its final order dismissing Ada J. Sims' charge of discrimination and Petition for Relief. DONE AND ENTERED this 12th day of October, 1998, in Tallahassee, Leon County, Florida. MARY CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 12th day of October, 1998. COPIES FURNISHED: Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303 Ronald Blocker Orange County School Board Post Office Box 271 Orlando, Florida 32802 Ada Sims 1601 Crooms Avenue Orlando, Florida 32805 Frank C. Kruppenbacker, Esquire Post Office Box 3471 Orlando, Florida 32801-3471 Dr. Donald Shaw, Orange County Superintendent of Schools Post Office Box 271 445 West Amelia Street Orlando, Florida 33802-0271
