The Issue The issue presented is whether Petitioner achieved a passing score on the April 1997 civil/sanitary engineer examination.
Findings Of Fact Petitioner took the April 1997 examination for licensure as a civil engineer. The examination was purchased by Respondent from the National Council of Examiners for Engineering and Surveying (hereinafter "NCEES"). The minimum passing score on that examination was 70. Petitioner was advised by Respondent's Bureau of Testing that he had achieved a score of 65. Petitioner challenged his score on question numbered 125 only. The maximum points that could be awarded for the answer to that question were 10. Petitioner was awarded 6 points for his answer to that question. There were three parts to question numbered 125. NCEES' scoring plan for that question provided that 10 points should be awarded where a candidate answered the question correctly in all aspects and the numerical results were within two percent, plus or minus, of the approved solution. In other words, a candidate could receive the maximum points for an answer which contained a mathematical error as long as the error resulted in an answer within two percent of the correct mathematical answer. NCEES' scoring plan also provided that a candidate could only receive eight points out of ten where the candidate answered part (a) correctly but made one or more errors in part (b) or part (c). Petitioner answered parts (a) and (c) correctly but he made a mathematical error in part (b) which caused his answer to be incorrect by 100 percent. When Petitioner's examination was initially scored, he was only awarded six points for his solution to question numbered 125 due to errors he made in both parts (b) and (c). At the final hearing in this cause Respondent's expert agreed with Petitioner that Petitioner's answer to part (c) should have been considered correct. Respondent's expert opined, therefore, that Petitioner should receive eight points rather than six. Petitioner cannot, however, be given full credit for his answers because his mathematical error caused his answer to part (b) to be incorrect by 100 percent rather than by only two percent as permitted to be able to receive full credit. Accordingly, Petitioner does not qualify to receive full credit for his answer to question numbered 125. Petitioner's raw score on the examination is now 45 due to the additional two points for question numbered 125. The scoring conversion scale converts a raw score of 45 to a scaled score of 67, less than a passing grade. The conversion scale is not a linear scale, i.e., it is not a percentage scale. The maximum raw score available on the examination is 80, with a maximum possible converted scaled score of 100. Computer calculations have established the converted scaled score based upon each possible total raw score. In other words, the conversion table converts every possible total raw score from one through 80. The conversion ratio varies along that table. For example, a total raw score on the examination of two becomes a scaled score of four, of four becomes a scaled score of eight, of 45 becomes a scaled score of 67.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Petitioner achieved a score of 67 and, therefore, failed to achieve a passing score on the April 1997 civil/sanitary engineer examination. DONE AND ENTERED this 27th day of May, 1998, in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 27th day of May, 1998. COPIES FURNISHED: R. Beth Atchison, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0750 Syed M. Safdar, pro se 1740 Northeast 125th Street, No. 1 Miami, Florida 33181 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Angel Gonzalez, Executive Director Board of Professional Engineers Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0755
The Issue Did Cristal commit deficient practices as cited in the Notice of Intent to Deny for Renewal Application justifying denial of its application for license renewal? May the Agency impose administrative fines and assess survey fees against Cristal for violations alleged in the Administrative Complaint that are proven? If so, what amount should the fines and fees be?
Findings Of Fact Agency for Health Care Administration The Agency is the regulatory authority responsible for licensure of ALFs and enforcement of the statutes governing ALFs, codified in chapter 429, part I, and 408, part II, Florida Statutes, as well as the related rules in Florida Administrative Code chapters 58A-5 and 59A-35.3 The Agency conducts biennial inspections (commonly referred to as surveys) of ALFs to determine compliance with the regulatory requirements. § 408.811(1)(b), Fla. Stat. The Agency may also perform surveys to investigate complaints. Regardless of the catalyst for a survey, Agency surveyors document any non- compliance found in a Statement of Deficiencies upon completing the survey. Deficiencies are cited by a “tag” that describes the deficiency and is supposed to establish a correction period. The tag is a numeric or alpha-numeric identifier of the regulatory standard found deficient. "A deficiency must be corrected within 30 calendar days after the provider is notified of inspection results unless an alternative timeframe is required or approved by the agency." § 408.811(4), Fla. Stat. A: I do believe that, yes. (Tr. Vol. IV, p. 273). 3 Unless otherwise noted, citations to Florida Statutes are to the 2018 codification, and citations to rules in Florida Administrative Code are to the 2018 versions. The rules were recently transferred to other chapters. There are no material differences between the 2017 and 2018 versions of the statutes and rules. Deficiencies must be categorized as Class I, Class II, Class III, Class IV, or unclassified deficiencies. § 408.813(2), Fla. Stat. In general, the class correlates to the nature and gravity of the deficiency. Class I violations present an imminent danger to residents. Providers must abate or eliminate Class I violations within 24 hours unless the Agency sets a different period. The law requires the Agency to impose a fine for Class I violations, even if they are corrected. § 408.813(2)(a), Fla. Stat. Class II violations directly threaten the health, safety, or security of residents. The Agency must levy a fine for a Class II violation even if it is corrected. § 408.813(2)(b), Fla. Stat. Class III violations indirectly or potentially pose a threat to the health, safety, or security of residents. An Agency citation for a Class III violation must specify the time within which the violation must be corrected. If a provider timely corrects a Class III violation, the Agency may not impose a fine. § 408.813(2)(c), Fla. Stat. Class IV violations do not threaten the health, safety, or security of residents. An Agency citation for a Class IV violation must specify the time within which the violation must be corrected. If a provider timely corrects a Class IV violation, the Agency may not impose a fine. § 408.813(2)(d), Fla. Stat. Cristal Palace Resort PB, LLC Cristal was, at all material times, an ALF in Palm Bay, Florida, operating under the Agency's licensing authority. Cristal's license authorized it to operate a 252-bed facility. Cristal was required to comply with all applicable statutes and rules. The Agency first licensed Cristal, located in a former hotel, to operate as a 252-bed ALF in May 2015. Cristal's license authorizes extended congregate care services, a higher level of services than under a standard ALF license. ALF licenses are valid for two years. Cristal applied to renew its ALF license with the extended congregate care specialty licensure. Nuri Dorra owns Cristal Palace. In his home country, Mr. Dorra is an architect. During a few periods of time, he served as Cristal Palace's administrator. Mr. Dorra has completed the training required to serve in that position. During the time period relevant to this matter, Cristal's census ranged from the mid-forties to the high fifties. Observations on Surveys, Notices of Deficiency, and Hearsay4 This dispute involves charges arising from four surveys conducted by the Agency. Referred to by the last day of the survey period, they are the May 10, 2017, survey; the July 13, 2017, survey; the September 14, 2018, survey; and the December 5, 2018, survey. Several surveyors participated in each survey. The surveyors created 30 documents referred to as Statements of Deficiency or surveyors' notes. (Agency Exs. 124 through154). All of them have two or more Agency employee names on them. The persuasive evidence does not prove who authored which part of most of the documents. Some witnesses testified about specific documents and statements in the documents. But in many cases they did not testify about or identify the specific portions of the documents that they authored. All of the surveyor notes and Statements of Deficiencies are hearsay accounts of what people told surveyors, descriptions of documents that surveyors read, and conditions surveyors observed. Often, the statements in the documents and in the testimony are vague and lacking detail about the circumstances in which the surveyor gathered the information. This undermines credibility and persuasiveness. The undersigned reminded the parties during the hearing of section 120.57(1)(c) and its prohibition against basing findings of fact solely upon hearsay unless it would be admissible over objection in civil actions. (Tr. Vol. I, p 24; v. II, p. 404; vol. IV, p. 661). Hearsay evidence is admissible to supplement or to explain other evidence. It is not sufficient alone to support a finding of fact, unless it would be admissible over objection in a civil action. Wark v. Home Shopping Club, 715 So. 2d 323, 324 (Fla. 2d 4 This part of the Conclusions of Law is placed here to illuminate the reasoning leading to many of the factual findings that follow. Much of Cristal's evidence suffers from the same hearsay issues. DCA 1998); See also Bellsouth Advert. & Publ'g Corp. v. Unemployment Appeals Comm'n, 654 So. 2d 292 (Fla. 5th DCA 1995). Out-of-court statements of testifying witnesses remain hearsay. Most hearsay issues involve an out-of-court statement that was made by one person and subsequently related in court during the testimony of another person. However, an extrajudicial statement made by the same person who is testifying also falls within the definition of hearsay. See Kenneth S. Broun, McCormick on Evidence § 251 (6th ed. 2006). The fact that the opposing party has an opportunity to cross-examine the witness about the prior statement does not remove the statement from the classification of hearsay. Powell v. State, 99 So. 3d 570, 573 (Fla. 1st DCA 2012). The only hearsay exception that might apply to the survey notes and Statements of Deficiencies is the public records exception of section 90.803(8), Florida Statutes. Proving that this exception applies requires establishing a predicate. That includes proving the documents set forth matters observed pursuant to duty imposed by law as to which matters there was a duty to report. For the most part, the survey notes are the joint work product of several surveyors. For most of the notes there is no persuasive evidence proving who authored which part of the documents. Many of the documents also recount and rely upon statements made by either residents or staff of Cristal. A hearsay statement that includes another hearsay statement is admissible only when both statements conform to the requirements of a hearsay exception. Juste v. Dep't of Health & Rehab. Servs., 520 So. 2d 69 (Fla. 1st DCA 1988); Harris v. Game & Fresh Water Fish Comm'n., 495 So. 2d 806 (Fla. 1st DCA 1986). The public records exception does not include factual findings of an investigation. Lee v. Dep't of Health & Rehabilitative Servs., Fla. 698 So. 2d 1194, 1200 (Fla. 1997). In the facts of this case, the AHCA surveyors were conducting an investigation after the first effort to revoke or deny Cristal's license failed. This was no routine re-licensure exercise. The surveys were inextricably bound up with a complaint investigation. For this reason too, the survey notes and deficiency findings do not satisfy the hearsay exception. Also, the predicate for admission under the exception requires proof of who prepared the record and that the person who prepared it personally observed the events described. Kimbrough v. State, 852 So. 2d 335, 336 (Fla. 5th DCA 2003). For many of the surveys and statements of deficiency, due to the documents having multiple authors, the Agency did not establish the required predicate. For these reasons, no findings of fact are based solely upon matters described in the surveyor notes or statements of deficiencies. See Carter v. State, 951 So. 2d 939, 943 (Fla. 4th DCA 2007); Reichenberg v. Davis, 846 So. 2d 1233 (Fla. 5th DCA 2003); Scott v. Dep't of Prof'l Reg., 603 So. 2d 519 (Fla. 1st DCA 1992). Investigative reports, including the Statements of Deficiency and survey notes here, present another evidential problem. Much of the information recited in them is gathered from other sources, not the personal observations of the author. They also often include or depend upon hearsay. Rivera v. Bd. of Trs. of Tampa's Gen. Emp't Ret. Fund, 189 So. 3d 207, 213 (Fla. 2d DCA 2016). Application of the hearsay rule is no mere legal technicality. The hearsay rule is one of the oldest and most effective means of ensuring decisions that determine people's lives and fortunes are based on reliable information. The Fifth District Court of Appeal described the importance of the rule as follows: Rules governing the admissibility of hearsay may cause inconvenience and complication in the presentment of evidence but the essence of the hearsay rule is the requirement that testimonial assertions shall be subjected to the test of cross examination. 5 Wigmore on Evidence, § 1362 (Chadbourne Rev. 1974). As stated by Professor Wigmore, the hearsay rule is "that most characteristic rule of the Anglo-American law of evidence -- a rule which may be esteemed, next to jury trial, the greatest contribution of that eminently practical legal system to the world's methods of procedure." 5 Wigmore on Evidence, at § 1364. Dollar v. State, 685 So. 2d 901, 903 (Fla. 5th DCA 1996). Survey Ending May 10, 2017 Tag 8 – Residents 9 and 14 – Alleged violations of rule 58A-5.0181(2) and section 429.26(4)-(6): The rule establishes admission criteria for an ALF. Facilities document compliance with the criteria by obtaining and maintaining an accurate and complete report of a health assessment of the resident from a licensed health care provider completed within 60 days before admission or within 30 days of admission. This ensures that residents meet specific admission criteria. The health assessment form for Resident 14 did not document the type of assistance the resident required for bathing. The form did not indicate whether the resident had a communicable disease. The form indicated that the resident required 24-hour nursing or psychiatric care. Rule 5A-5.0181(2) provides that residents requiring 24-hour licensed professional mental health treatment do not qualify for admission to an ALF. The form is dated February 2, 2017, more than 60 days before the survey. For this resident, Cristal violated the rule. Section 429.26(4) through (6) imposes similar requirements. The Agency also proved that Cristal violated the statute. The deficient health assessment document for Resident 14 posed an indirect or potential risk to this resident. It is properly classified as a Class III violation. Agency proposed finding of fact 10 said nothing about Resident 9's health assessment form. This charge is deemed abandoned. Tag 53 – Resident 10 – Alleged violation of rule 58A-5.0185(4)(d): The rule requires that a facility performing clinical laboratory tests for residents, including blood glucose testing, must comply with the federal Clinical Laboratory Improvement Amendments of 1988 (CLIA) and chapter 483, Part I, Florida Statutes. The rule further requires the facility to maintain its federal CLIA certificate at the facility. The requirements do not apply if a third party is assisting the resident perform the test. Agency surveyor Robin Williams observed a nurse, Coralie Prince, contracted to serve residents at Cristal, assisting Resident 10 with testing the resident's blood glucose using an Accu-Chek machine. The Agency depends upon hearsay to prove Cristal did not have a CLIA certificate. The Agency did not prove a violation of rule 58A-5.0185(4)(d) by a preponderance of the evidence. Tag 54 – Resident 9 – Alleged violation of rule 58A-5.0185(5): The Agency's PRO, in finding of fact 12, states that Tag 54 asserts a violation of the health assessment rule. It does not. The Tag 54 violations described in the Notice to Deny involve allegations of failure to maintain medication observation records (MORs). Also, rule 5.0185(5), cited in Agency proposed finding of fact 12 governs medication records. The Agency has not identified record evidence to support the tag. Tag 55 – Resident 8 – Alleged violation of rule 58A-5.0185(6): Agency proposed finding of fact 13 asserts this tag charges a violation of the rule's requirement that residents who possess their medications must keep them in a secure place out of sight of other residents. Tag 55 does not. It charges failure to properly handle discontinued medications. The Agency did not identify evidence proving a violation of rule 58A-5.0185(6). Tag 56 – Resident 10 – Alleged violation of rule 58A-5.0185(7): The rule requires that all centrally stored medications that are separated from their original packaging be labeled with the resident's name and the drug's identifying information. Cristal's medication cart contained three separate sets of medication pens containing insulin. None were labeled with a resident's name or drug identity. The labeling requirement is important. Without the label the residents are at risk for receiving the wrong medication. This violation presented an indirect or potential risk to residents. The Agency properly classified it as a Class III violation. Tag 93 – Alleged violation of rule 58A-5.020(2): The rule establishes food service standards. Rule 58A-5.020(2) requires facilities to date and plan menus at least one week in advance, and post them conspicuously or otherwise make them easily available to residents. The facility may substitute items of comparable nutritional value for menu items. Facilities must keep the menus, with substitutions noted, on file for six months. During the survey period Cristal had a menu posted. But it was not dated. Cristal maintained undated menus it called "rolling menus," labeled Week 1, Week 2, Week 3, and Week 4. These are no substitute for dated menus. Unless the first date that the Week 1 menu was served is known and unless there was never a deviation from the sequence, you could not know what food was offered on any date. The rolling menu explanation, also, does not fit the calendar because not all months have four weeks or begin on the same day. The menu for the noon meal served on May 8, 2017, included a tossed salad. Cristal did not offer residents a tossed salad at that meal. The Agency proved the violation. Findings of Fact 168, 169, and 181 in Cristal I also found Cristal violated this rule. Cristal's violation of the rule was an indirect or potential risk to residents properly classified as a Class III offense. Tag 152 – Physical Plant/Safe Living Environment – Alleged violation of rule 58A-5.023(3): among other things the rule requires a facility to provide "a safe living environment pursuant to section 429.28(1)(a), Florida Statutes." Section 429.28(1)(a) says that residents have a right to "[l]ive in a safe and decent living environment, free from abuse and neglect." During the survey period, some facility carpeting was stained and dirty. Decorative borders on walls were scuffed. Some were missing. A witness testified that one posted elevator permit was expired. The expiration date is unknown. The Agency offered no documents or photographs to show the permit was expired. The outdoor pool contained an unidentified dark black liquid. The pool enclosure displayed a sign stating that the pool was closed for maintenance. The indoor pool, which was not closed off, had unidentified white, bubbly particles floating on top. At least one kitchen air conditioning unit was not working during the days of survey. As kitchens usually are, the kitchen was hot. The Agency witness testified the sweating kitchen staff were a food contamination risk. The Agency did not offer evidence to support that assertion. Health inspectors regularly inspected the kitchen and found it satisfactory. The preponderance of the evidence did not prove what caused the carpet stains or how long they had been there. The preponderance of the evidence did not prove what the black fluid was or what the white particles were. In addition the outdoor pool did not put residents at risk because the pool was closed off for repairs. The evidence proved many parts of Cristal were unsightly and needed repair. The Agency did not offer evidence proving the nature or significance of any risks allegedly created by the conditions. It did not prove the unsightly conditions created risks. For example, although Ms. Crawford's notes (AHCA Ex. 116, depo. Ex. 1) indicated that her assignments included observations of mold, the Agency did not offer evidence proving the substance suspected to be mold was mold. A preponderance of the evidence did not persuasively prove that the conditions were unsafe or indecent. Tag 160 – Alleged violation of rule 58A-5.024(1): Rule 58A-5.024(1)(i) requires facilities to have a grievance procedure readily available. Agency Exhibit 124 is the only evidence identified to prove this violation. It is a completed Statement of Deficiencies and Plan of Correction form. It is hearsay. It states that "based on a record review" the facility did not maintain a grievance procedure. The record provides no information about what the "record review" consisted of or what was reviewed. It also states that "the administrator's designee" said she could not locate the grievance log and procedure. Exhibit 124 is hearsay, as is the statement it reports. Furthermore, Agency Exhibit 69 is Cristal's grievance procedure. Tag 30 – Resident 3 – Alleged violation of rule 58A-5.0182(6) and section 429.28(1)-(2): Agency proposed finding of fact 18 claims that the rule requires a facility to give a resident 45 days' notice of intended discharge. The rule does not impose this requirement. Section 429.28(1)(k) does. It requires 45 days' notice of termination of residency, with exceptions including certification by a doctor that the patient requires "emergency relocation to a facility providing a more skilled level of care … ." The Agency relies upon the testimony of Surveyor Vilma Pellot to prove this charge. She testified that Resident 3 was transferred to the hospital because he had blood in his urine. The testimony does not indicate where the witness obtained that information, specifically whether she observed a record or was told the information. Ms. Pellot testified that a representative of Cristal told the hospital's discharge planner that Cristal could not take Resident 3 back because Cristal was not using its extended congregate care license, which would authorize it to provide the resident the care now needed. The information the Agency relies upon to prove the charge depends upon hearsay. The Agency did not prove the violation alleged in Tag 30 as presented in Agency proposed finding of fact 18. Tag 25 and Count I of the Complaint – Residents 1, 4, 5, and 6 – Alleged violations of rule 58A-5.0182(1) and section 429.26(7): The rule requires the facility to provide care and services, including supervision, appropriate for each resident. It also requires a facility to maintain a written record of significant changes in each resident's health. It further requires an ALF to document communications with residents' health care providers and responsible parties about significant changes in a resident's condition. Section 429.26(7) requires a facility to notify a doctor when a resident shows signs of dementia or cognitive impairment or changes that may contribute to dementia or impairment. Section 429.26(7) imposes a similar obligation. Rule 58A-5.0131(32), quoted below, defines "significant change." "Significant Change" means a sudden or major shift in behavior or mood inconsistent with the resident's diagnosis, or a deterioration in health status such as unplanned weight change, stroke, heart condition, enrollment in hospice, or stage 2, 3 or 4 pressure sore. Ordinary day-to-day fluctuations in functioning and behavior, a short-term illness such as a cold, or the gradual deterioration in the ability to carry out the activities of daily living that accompanies the aging process are not considered significant changes. The Agency alleged that Cristal admitted Resident 4 in June 2016 and that Cristal documented that the resident suffered over 20 falls starting the day after admission through February 10, 2017. Thus the falls could not have been a change in condition. They also do not fit within the rule definition of "significant change." In fact, Count I alleges that on the day of admission, the fall risk score was 22 on a scale of zero to 28. Agency proposed finding of fact 19 addresses the claimed violation. It argues Cristal's records lack documents showing any effort to minimize the falls. If proven, the absence of the documentation would not violate the supervision requirements of rule 58A-5.0182(1) or section 429.26(7), even though it may violate other rule and statutory requirements not charged. The Agency did not prove the charged rule and statute violations by a preponderance of the evidence. It did not offer the records into evidence. The cited rule does not require intervention as the Agency argues. The Agency also did not prove the resident showed signs of cognitive impairment or changes that may contribute to dementia or impairment. Tag 25 also alleged that Resident 6 was prescribed an inhaler for use at 9:00 a.m. and that on May 8, 2017, Cristal staff provided the inhaler at 11:30 a.m. The resident was receiving oxygen at the time. The Agency did not prove the charge by non-hearsay evidence. Its proof depends upon a hearsay account of what the resident said. Also the Agency did not prove by a preponderance of the evidence that the inhaler was prescribed for use at 9:00 a.m. Agency proposed finding of fact 19 refers to charged violations of the same rule and statute related to Residents 1 and 5. But it does not address the charges. It does not cite to evidence to support them. Charges related to Residents 1 and 5 are deemed abandoned. Survey Ending July 13, 2017 Tag 8 and Count XV – Residents 4, 7, 11, 19, 21, 22, 24, and 32 – Alleged violations of Rule 58A-5.0181(2) and section 429.26(4)-(6): The rule establishes admission criteria for an ALF. Facilities must document compliance with the criteria by obtaining and maintaining an accurate and complete report on an Agency form of documented health assessment of the resident by a licensed health care provider, completed either 60 days before admission, or within 30 days after admission. This ensures that residents meet specific admission criteria. Rule 58A-5.0181(2)(c) requires a facility to obtain any required information not contained in the assessment within 30 days after admission. Thus proving the date of admission is important to proving violation of the rule. The health assessment for Resident 24 was dated March 30, 2016. The Agency maintains that the resident was admitted to Cristal in July of 2017. The only evidence of the admission date was the testimony of Lorienda Crawford that she "identified this resident was admitted into the facility in July of 2017 … ." There is no document to corroborate this bare assertion or any information, such as an explanation of how Ms. Crawford determined the admission month that would make the statement persuasive. The Agency did not prove Resident 24's admission date by a preponderance of the evidence. Consequently it did not prove the charges in Tag 8 and Count XV for Resident 24. The health assessment form for Resident 22 did not provide the required medical certification identifying the professional who conducted the assessment. The Agency proved the violation alleged by Tag 8 and Count XV for Resident 22. Section 429.26(4) requires a facility to maintain the assessment as a permanent part of each resident's record. Although Cristal had a partially completed assessment for Resident 7, the clear and convincing evidence proved that Cristal did not maintain it as a permanent part of the resident's record. The Agency proved the charges of Tag 8 and Count XV for Resident 7. The violation posed an indirect or potential risk to the resident and is properly classified as a Class III violation. The assessment form for Resident 32 did not contain a response to the section asking if the individual needed help taking medications. There is no proof that Cristal obtained this required information. But the form is dated June 13, 2017. The last day of the survey was 30 days after. In addition the Agency did not prove Resident 32's date of admission. The Agency, therefore, did not prove the charges described in Tag 8 and Count XV for Resident 32. The health assessment for Resident 4 indicated a diagnosis of dementia and described the resident's cognitive or behavioral status as aware with confusion. Yet the form did not contain a response in the area asking if the resident required 24-hour nursing or psychiatric care. This is a deficiency the rule required Cristal to correct within 30 days after admission. The form is dated January 8, 2017. The July 2017 survey dates are well after the 30 days allotted the facility to obtain missing information, even assuming the form was provided at the latest authorized date. The Agency proved the charges of Tag 8 and Count XV for Resident 4. The absence of this information created an indirect or potential risk to residents. The Agency properly classified the offense as a Class III violation. Cristal produced a health assessment form for Resident 7. It was not with the resident's records as required. The form for Resident 7 also did not provide the required medical certification identifying the professional who conducted the assessment. It is also undated. The Agency proved Cristal violated the requirement to maintain the form with Resident 7's records. Although Agency proposed finding of fact 20 asserts Tag 8 and Count XV alleged current health assessment violations for Residents 11, 19, and 21, the Agency does not identify evidence supporting the assertion in its proposed finding of fact 20. The violations related to these residents are deemed abandoned. Tag 53 – Residents 6 and 23 – Alleged violations of rule 58A-5.0185(4): The rule requires a facility to employ or contract with an appropriately licensed individual to be available to administer medication. The Agency's proof relies upon hearsay. It did not prove the violation as to either resident. 56. Tag 54 – Residents 3, 6, 8, 9, 12, 14, 16, 24, 25, 26, 27, and 28 – Alleged violations of rule 58A-5.0185(5): The rule requires ALFs to maintain up-to-date MORs for all residents receiving assistance with medication. Several residents' MORs did not document compliance with medication administration directions. The MORs for Residents 24, 25, 26, 27, and 28 stated that administration of medication was to be observed. The MORs did not document observation of the administration of several medications on several days. For Resident 16, the MOR did not indicate whether Donepezil was administered on the 11th of the month as prescribed. For Resident 9, the MOR did not indicate whether Lisinopril was administered on the 9th and l0th of the month. For Resident 14, the MOR indicated that the medication Lorazepam was administered three times. But only one dose was absent from the medication container. Resident 3's MOR was blank for two doses of potassium. Resident 8's MOR was blank for one dose of aspirin. Resident 12's medication record was blank for nine doses of Levothyroxine. Cristal asserted the missing documentation was due to Cristal's transition to an electronic record system. The facility's obligation to maintain records and the resident's need for accurate records is not abated by a change in recordkeeping systems. These multiple violations were indirect or potential risks to residents. The Agency properly classified them as Class III violations. Tag 55 and Count XVII – Residents 33, 36, 37, 38, and 39 – Alleged violations of rule 58A-5.0185(6): The rule imposes medication storage and disposal requirements. It requires that a facility give unused medications to residents at discharge unless, after receiving notice, the resident abandons the medications by inaction. The Agency asserts that, when Cristal changed pharmacies, Cristal allowed medications of the discharged Residents 33, 36, 37, 38, and 39, to be removed and donated to a "third-party charity." The Agency further asserts that Cristal did not obtain resident consent to dispose of the medications. To prove the rule-required elements, the Agency needed to prove that the residents were discharged and that the medications were not offered to them. The Agency evidence is a mélange of "observation of medications, record review, and interview." The Agency's evidence depends upon hearsay and provides insufficient detail to make the vague descriptions of "record review" and "interview" persuasive. The "interview" references mean that unknown parts of the factual statements come from hearsay. The credible persuasive evidence is not sufficient to prove the Agency's claims by a preponderance of the evidence. Tag 56 and Count XIII – Resident 19 – Alleged violation of rule 58A-5.0185(7): Rule 58A-5.0185(7) governs medication labeling and orders. Rule 58A-5.0185(7)(c) states: If the directions for [medication] use are "as needed" or "as directed," the health care provider must be contacted and requested to provide revised instructions. For an "as needed" prescription, the circumstances under which it would be appropriate for the resident to request the medication and any limitations must be specified; for example, "as needed for pain, not to exceed 4 tablets per day." The revised instructions, including the date they were obtained from the health care provider and the signature of the staff who obtained them, must be noted in the medication record, or a revised label must be obtained from the pharmacist. The Agency maintains that Resident 19 had several "as needed" prescriptions which did not specify the circumstances in which administration of the medications would be appropriate and that Cristal did not obtain revised instructions to correct the deficiency. The evidence offered to support this charge is general testimony, without detail, such as identification of what records the witness reviewed. A representative example follows. "That Resident No. 19 has several medications of the prescription already [sic] as p.r.n., as needed." Asked in a broad and general way if she was able to find "any orders regarding the as-needed medication," the witness replied "I did not." (Tr. Vol. III, p. 497). The Agency did not prove the charged violation by a preponderance of the evidence. Tag 93 – Food Service – Alleged violation of rule 58A-5.020(2): The rule establishes food service standards. Rule 58A-5.020(2), among other things, requires facilities to date and plan menus at least one week in advance. It also requires facilities to post the menus conspicuously or otherwise make them easily available to residents. During the survey period a menu was posted. It was not dated. In addition, a meal served one day of the survey was not the meal described in the posted menu. This is the third time Cristal violated the food service rule, in the same way. The Agency proved a violation of the rule during the survey period ending May 10, 2017, (Finding of Fact 33) and in Cristal I. The violation created an indirect or potential risk to residents and was properly classified as a Class III violation. The refusal to comply with this simple requirement also manifests a repeated disregard for the rules governing operation of an ALF. Tag 152 – Physical Plant/Safe Living Environment – Alleged violation of rule 58A-5.023(3): Among other things, the rule requires a facility to provide "a safe living environment pursuant to section 429.28(1)(a), Florida Statutes." Section 429.28(1)(a) says that residents have a right to "[l]ive in a safe and decent living environment, free from abuse and neglect." At the time of the July 2017 survey, sand filled the pool that had black fluid in it in May. Many of the conditions noted during the May survey remained, including exposed pipes with unidentified brown material on them and broken ducting. The photographed areas of Cristal look poorly maintained and unattractive. But, as with the similar conditions from the May survey, there is no persuasive evidence identifying what substances caused the brown spots on the pipes, what the pipes convey, or generally how the conditions observed pose a threat to resident safety or were, as the Agency surveyor stated, "hazardous to their health." The surveyor also went to the crux of the failure of proof for this tag saying, "We don't know what this black stuff was and all that… ." Expert testimony on this issue may have made a difference in the outcome. The same is true about testimony stating a lobby bathroom was leaking. The witness did not testify to observations establishing that the bathroom was the leak's source. The photograph provided does not support a finding that the leak came from the bathroom. A photograph does show that Cristal placed warning signs at the affected area. There is no evidence proving how long the condition had existed or if there had been a reasonable period of time to repair the problem. The Agency did not prove the claims of Tag 152 by a preponderance of the evidence. Tag 160 and Count XXII – Facility Records – Alleged violation of rule 58A- 5.024(1): Rule 58A-5.024(1)(b) requires an ALF to maintain a readily available, up-to- date admission and discharge log. The log must list, among other things, a resident's date of discharge, reason for discharge, and location to which the resident was discharged. The Agency claimed Cristal's log did not list reasons for discharge or the locations to which residents were discharged for several residents. The log, Agency Exhibit 41, is illegible. The only other evidence offered was a general statement that "[t]he facility did not indicate on the log the reason for discharge and the place for discharge for several residents." (Tr. Vol. II, p. 393). The Agency's evidence was not persuasive. The Agency did not prove this tag and count by a preponderance of the evidence. Tag 30 – Residents 14, 24, 26, 27, and 28 – Rule 58A-5.0182(6) and section 429.28(1)-(2): Rule 58A-5.0182(6)(e) requires facilities to compensate residents for work performed for the facility other than work performed in their own living areas and provided for in the resident's contract. The rule requires compensation "in compliance with state and federal wage laws." Section 429.28 is part of the Resident Bill of Rights. It does not contain a prohibition or requirement about residents performing work for a facility. Agency proposed finding of fact 28 asserts Cristal violated the rule by failing to compensate Resident 14 for work performed as a facility employee. It cites only Agency Exhibit 151 to support this charge. The exhibit contains only hearsay reports of Resident 14 volunteering to work at the front desk two hours a day for $20.00 per day. In addition, the hearsay does not establish that the resident was not paid or that $10.00 per hour did not comply with state and federal wage laws. Proposed finding of fact 28 also lists Residents 24, 26, 27, and 28. But it makes no specific claims about them and cites no evidence mentioning them. Charges related to them are deemed abandoned. The Agency did not prove Tag 30. Tag 162 – Residents 7, 18, 24, 27, and 31 – Alleged violation of rule 58A- 5.024(3): Rule 58A-5.024(3) imposes a number of recordkeeping requirements upon ALFs. Facilities must retain resident records for two years after a resident's departure, except for contracts, which an ALF must retain for five years. Fla. Admin. Code R. 58A-5.024(3)(q). The rule requirement that the Agency argues Cristal violated is the requirement to maintain a weight record, initiated on admission, for each resident. The Agency and its witnesses incorrectly state that the rule requires facilities to record resident weights every six months. That requirement applies only for residents receiving assistance with daily living activities. Fla. Admin. Code R. 58A-5.024(3)(f). When the surveyors asked Cristal to provide the weight records, staff presented a binder with tabs bearing people's names. But the pages were empty. There were no weight records for Resident 24, even in the resident's individual file. Not recording weights creates a risk that material weight gains or losses will go unnoticed and therefore unaddressed. Cristal's failure to comply with the rule was an indirect or potential risk to residents. The Agency properly classified the failure as a Class III violation. The records for Resident 3 contained only an order for an ultrasound and the test results. They did not include the required health assessment form, demographic information (such as the resident's birth date), MORs, or physician records. Cristal's failure to comply with the rule created an indirect or potential risk to the resident. The Agency properly classified the violation as a Class III violation. Agency finding of fact 29 refers to a violation in this tag involving Resident 27. It does not otherwise identify a violation. Consequently this charge is deemed abandoned. Agency finding of fact 29 refers to a violation in this tag involving Resident 18. It does not otherwise identify a violation. Consequently this charge is deemed abandoned. The Agency contends that Cristal did not maintain accurate records of the medication orders for Resident 7. On July 10, 2017, Resident 7 had a bag of medications in her room. Her records did not contain a health assessment form or orders indicating whether she required assistance or observation administering medication. The health assessment form was not signed by a licensed professional. On July 12, 2017, staff produced an order dated that day stating the patient could self-administer medications. This violation, although a Class III violation, was cured for that patient. Tag 25 – Residents 8, 9, 13, 16, 21, 24, 30, 31, and 32 – Alleged violations of rule 58A-5.0182 and section 429.26(7): Agency proposed finding of fact 30 addresses these alleged violations. Rule 58A-5.0182(1) sets standards ALF supervision of residents. Rule 58A-5.0182(1)(c) requires facilities to maintain a general awareness of a resident's whereabouts. Section 429.26(7) requires a facility to "notify a licensed physician when a resident exhibits signs of dementia or cognitive impairment or has a change of condition in order to rule out the presence of an underlying physiological condition that may be contributing to such dementia or impairment." The Agency alleged, but did not prove, failure of Cristal to be aware of Resident 31 leaving to go camping or on an errand. The Agency did not prove a violation involving Resident 31 by a preponderance of the evidence. The Agency described Resident 32 suffered a chemical burn on her lower body. The Agency relied upon hearsay to prove claims about Cristal's care for this resident after the burn. It did not assert a failure of supervision. As important for this proceeding, the rule and statute the Agency claims Cristal violated, do not address quality of medical care. The Agency did not prove the charged violation for Resident 32. Hearsay corroborated by a party admission proved that at some point in Resident 30's stay at Cristal, the facility sent her to a hospital because of complaints of pain and numbness. A complaint requiring medical attention from a hospital is a significant change in condition. Cristal did not notify the resident's health care provider of this development. The records corroborate hearsay from the manager at that time reporting she did not notify the resident's health care provider, as required by rule 58A-5.0182(1)(d). Failure to advise a resident's health care provider of a condition serious enough to require treatment at a hospital violates rule 58A- 5.0182(1)(d). The violation presents a direct risk to the resident. The Agency properly classified the violation as Class II. Although the Agency listed Residents 8, 9, 13, 16, 21, and 24 in proposed finding of fact 30, it does not address care provided or cite evidence purportedly proving any violations involving their care. Those alleged violations are deemed abandoned. Tag 81 – Staff Training – Alleged violation of rule 58A-5.0191(2): Rule 58A.0191(2)(b)3 says that within 30 days of employment, direct care staff must receive in-service training that covers facility emergency procedures. Agency proposed finding of fact 31 alleges that a staff member began working at Cristal on May 8, 2017, and that at the time of the survey, Cristal had employed the staff member for more than 30 days. The proposed finding does not identify the staff member. Review of the exhibit cited indicates that this proposed finding refers to Staff D. The proposed finding further alleges that Staff D had not received the required emergency procedure training within 30 days of employment. The Agency's sole evidence about Staff D's hire date was this testimony: "So for this staff, in review of this staff's record, they were hired on May 8, 2017." Among other things, the testimony did not identify the document the witness relied upon or provide grounds to determine that it is reliable. The Agency offered no documents to support the charge. The evidence offered to prove Staff D did not receive the required training was equally sparse. The Agency did not prove the charge by a preponderance of the evidence. Rule 58A-5.0191(2)(f) requires that within 30 days of employment direct care staff must receive in-service training that covers resident elopement and response policies and procedures. As with the inadequate attempts to prove deficient emergency procedure training, the Agency also failed to present evidence satisfying its burden of proof for this charge. Survey Ending September 14, 2018 Tag 8 and Count XV – Residents 4, 13, 15, 23, 33, and 34 – Alleged violations of rule 58A-5.0181(2): The rule establishes admission criteria for an ALF. Facilities document compliance with the criteria by obtaining and maintaining an accurate and complete resident health assessment by a licensed health provider documented on an Agency form completed either 60 days before admission, or within 30 days after admission. This ensures that residents meet specific admission criteria. The health assessment form for Resident 13 did not include the date on which the health care provider conducted the examination. This makes it impossible to determine if the provider conducted the assessment during the required time period. Cristal did not contact the provider to obtain the missing information. This violation posed an indirect or potential risk to the resident. The Agency properly classified it as a Class III violation. The most recent health assessment for Resident 15 was dated June 4, 2018. It provided conflicting information that the resident required both the administration of medications and assistance with self-administration of medications. Despite having over 90 days to obtain clarification of these conflicting instructions, Cristal had not done so. Thus the assessment did not comply with rule 58A-5.0181(2)(a)5. This violation posed an indirect or potential risk to the resident. The Agency properly classified it as a Class III violation. Agency proposed finding of fact 33 refers to violations for Residents 4, 23, 33, and 34. However, it provides no information about the alleged violations and does not cite to evidence that might indicate violations for those residents. Therefore, those claims are deemed abandoned. Tag 54 – Residents 3, 12, 14, 18, 33, and 34 – Alleged violations of rule 58A- 5.0185(5): Rule 58A-5.0185(5)(b) requires ALFs to "maintain a daily medication observation record (MOR) for each resident who receives assistance with self- administration of medications or medication administration." It further lists required information for each MOR. Resident 12's June 16, 2018, MOR for Travatan ZO, which was to be administered nightly, did not show that the medication was administered on June 16, 2018. The MOR also did not show that Risperidone was administered on July 1, 2018, when the MOR indicated that it should be administered twice a day. The MOR did not record administration of Vitamin B1 on July 29, 2018, although it was to be administered daily. These deficiencies created an indirect potential risk to the resident, which is properly classified as a Class III violation. The MOR for Resident 18 on July 23, 2018, did not document administration of 21 different medications or provide an explanation why the medications were not administered, if they were not. This created an indirect or potential risk to the resident. It is properly classified as a Class III violation. The MOR for Resident 3 for August 7 and 16, 2018, indicated that multiple medications were withheld pursuant to physician's order. Cristal did not produce documentation of the physician's orders to withhold. Rule 58A-5.0185(5) does not, however, require maintaining the orders as part of the MOR. The Agency did not prove the alleged Tag 54 violation involving Resident 3 by a preponderance of the evidence. Agency proposed finding of fact 34 did not identify any support for violations related to MORs for Residents 14, 33, and 34. These claims are deemed abandoned. Tag 55 and Count XVII – Residents 18, 13, and 17 – Alleged violation of rule 58A-5.0185(6): Rule 58A-5.0185(6)1 requires a facility to return centrally stored medications of those residents for whom "[t]he facility administers the medication" and in other circumstances not involved here. The rule also requires an ALF to store or return discontinued medications to the resident, in case the medication is re- prescribed. Tag 55 and Count XVII assert that Cristal improperly returned medications of Resident 18 to a former pharmacy when Cristal changed pharmacies. The Agency's evidence relies upon hearsay and is not persuasive. The Agency did not prove its assertions about returning medications to the former pharmacy by a preponderance of the evidence. Resident 13 kept Pepto-Bismol, hydrogen peroxide, and an over-the-counter foot medication unsecured in the resident's bedroom. Resident 17 kept aspirin, ibuprofen, and arnica cream unsecured in the resident's bedroom. The preponderance of the evidence does not prove that the facility administered those medications. Therefore the Agency did not prove a violation of the requirement in rule 58A- 5.0185(6)1 for central storage of medications administered by the facility. Tag 56 and Count XIII – Resident 19 – Alleged violation of rule 58A- 5.0185(7): Rule 58A-5.0185(7)(c) requires a facility to ask a provider who prescribes a medication "as needed" to clarify the prescription by describing the circumstances under which administering the medication is appropriate. The physician's orders for Resident 19 included a prescription originating on June 4, 2017, for Senokot Suboxone, as needed. The orders did not explain when administering the medication was appropriate. Cristal did not obtain a physician's order clarifying when the medication should be provided. Resident 19 had diagnoses of dementia and altered mental status. The unlicensed staff providing assistance with self-administration of medications did not have the training or expertise to determine when a cognitively impaired resident needed a medication. The failure to obtain clarification created an indirect or potential risk to the resident. The Agency properly classified it as a Class III violation. Tag 152 and Count XIX – Physical Plant/Safe Living Environment – Alleged violations of rule 58A-5.023(3): Rule 58A-5.023(3)(a)1 says a facility must provide a safe living environment. Rule 58A-5.023(3)(a)2 states that all ALFs "[m]ust be maintained free of hazards… ." Rule 58A-5.023(3)(a)3 states that all ALFs "[m]ust ensure that all existing architectural, mechanical, electrical and structural systems and appurtenances are maintained in good working order." The Agency, in proposed finding of fact 37, incorrectly describes the rule as requiring a "decent living environment." Photographs and testimony about personal observations of Agency personnel on the days of the survey establish that Cristal was in run-down condition. Carpeting in the common areas, was dirty. Something had stained the carpet in front of a resident's door and in some residents' rooms. Small areas of sheet rock were broken or worn away. Some walls were dirty and stained near the baseboards. A baseboard was cracked and separated from the wall. The baseboard's paint was chipped. Some baseboards were missing. Some tiles in an elevator were cracked. The lobby ceiling had water leaks. Buckets were placed in the lobby to catch the drips. A black substance coated some of the ceiling vents and some carpets. Some ceiling tiles were missing. Cristal did not have an operational emergency generator. The evidence did not prove how long the conditions had existed. The evidence did not show what the stains and dark substances were or what caused them. The Agency did not offer testimony from mechanical experts, structural experts, mold remediation experts, or other experts who could have established the cause of the conditions described above or the nature of the risks, if any, they presented to residents. The Agency failed to offer persuasive evidence that the unsightly conditions observed and photographed at Cristal were unsafe or hazardous. It also did not offer persuasive evidence that Cristal's architectural, mechanical, electrical, or structural systems were not in good working order. The Agency did not prove the charged violations by a preponderance of the evidence. Tag 160 and Count XXII – Residents 22, 24, and 32 – Alleged violations of rule 58A-5.024(1): Rule 58A-5.024(1)(b) requires a facility to maintain an up-to-date admission and discharge log. At the time of the survey, Residents 22, 24, and 32 had been discharged. Cristal's log did not list these three residents as discharged. This finding relies upon a report of what the administrator said. Section 90.803(18)(a) permits consideration of the testimony as a party admission. This rule violation created an indirect or potential risk to the residents. It is properly classified as a Class III violation. Rule 58A-5.024(1)(d) requires a facility to have the "[t]he facility's emergency management plan, with documentation of review and approval by the county emergency management agency, as described in Rule 58A-5.026 F.A.C." readily available. The only evidence the Agency identifies (in proposed finding of fact 38) as proving a violation of this requirement is a surveyor's testimony that, "I identified that they do not have a copy of their emergency plan that was approved by the county or a satisfactory fire inspection." (Tr. vol. I, p. 130). The witness did not say how she "identified" the absence of the plan (or approval of a plan) or what files, if any, she reviewed. It is impossible to divine from the witness' single sentence if she "identified" the absence of the plan from statements of other people. Reliance upon hearsay statements by all the Agency witnesses was a common failing. The minimal and uninformative testimony is not persuasive. It does not suffice to prove by a preponderance of the evidence that Cristal did not maintain an approved emergency management plan. Rule 58A-5.024(1)(k) requires a facility to have readily available "[a]ll fire safety inspection reports issued by the local authority or the State Fire Marshal pursuant to section 429.41 F.S., and Rule Chapter 69A-40, F.A.C., issued within the last two years." The only evidence offered to support this charge is the vague and unpersuasive sentence quoted above. The Agency did not prove by a preponderance of the evidence that Cristal failed to maintain the required fire safety inspection reports. In addition, on September 30, 2018, the City of Palm Bay Fire Marshal's Office found Cristal "in compliance with all applicable Florida State Fire Codes." (C. Ex. 7). Rule 58A-5.024(1)(i) requires facilities to maintain "[a]ll sanitation inspection reports issued by the county health department pursuant to Section 381.031, F.S. and Chapter 64E-12, F.A.C, issued within the last two years." The Agency relies, in proposed finding of fact 38, upon the surveyor testimony discussed above. The testimony is not persuasive and did not prove the claimed violation by a preponderance of the evidence. It does not even refer to sanitation inspections. Tag 162 and Count XI – Residents 2, 23, 33, and 34 – Alleged violations of rule 58A-5.024(3): Rule 58A-5.024(3)(g) requires "facilities that will have unlicensed staff assisting the resident with the self-administration of medication, [to maintain] a copy of the written informed consent described in Rule 58A-5.0181, F.A.C., if such consent is not included in the resident's contract." The signed informed consent form for Resident 2 provided the following opportunity to record the resident's consent: "In our facility, staff assisting residents with self-administration: will or, will not be overseen by a licensed nurse." Neither "will" nor "will not" is selected. However, the Agency did not place the resident's contract in evidence. So the record does not establish the condition precedent to requiring a separate consent form. The Agency's attempted proof of this issue suffered the same failing in Cristal I, as stated in paragraph 299 of the Recommended Order. Contrary to Agency proposed finding of fact 39, Count XI does not allege a violation of this rule. Agency proposed finding of fact 39, addressing this charge, lists Residents 23, 33, and 34, as people whose records also lacked the required consent. The proposed finding does not identify evidence supporting the charge. The Agency did not prove a violation related to these residents. Tag 167 – Residents 2 and 18 – Alleged violation of rule 58A-5.205 and section 429.24: Among other things, the rule requires facilities to execute contracts with residents. The rule requires a number of provisions for the contracts. One is, "[a] provision that residents must be assessed upon admission and every 3 years thereafter, or after a significant change … ." Hearsay testimony of Ms. Williams indicated that Resident 18's contract did not contain this provision. The records for Resident 18 did not include a supplement to the contract with this provision. The fact that Cristal subsequently obtained a supplement to the contract with the provision (C. Exhibit 14, p. 210) corroborates Ms. Williams' testimony. The supplement is dated November 9, 2018, more than 30 days after the Agency advised Cristal of the deficiency. Clear and convincing evidence proved Cristal violated rule 58A-5.205. The Agency properly classified this as a Class IV violation. The Agency also claims in proposed finding of fact 40 that the contract for Resident 2 did not contain the required assessment provision. The Agency did not prove this claim, as described in proposed finding of fact 40. It cites to Agency Exhibit 126. The exhibit does not mention Resident 2's contract. The Agency also cites to pages 130 through 220 of Volume I of the transcript and all of Volume II to support its claim. The cited testimony does not establish by a preponderance of the evidence that Resident 2's contract did not have the required provision. The Agency did not prove the charged violation as to Resident 2. Tag 25 and Count X – Residents 13 and 15 – Alleged violations of Rule 58A- 5.0182(1) and section 429.26(7): Agency proposed finding of fact 41 addresses the alleged violations. Rule 58A-5.0182(1) establishes supervision requirements for the care of ALF residents. Rule 58A-5.0182(1)(d) requires a facility to contact a resident's health care provider or other appropriate party if a resident exhibits a "significant change." Rule 58A-5.0182(1)(f) requires a facility to maintain a written record of any significant changes. The Agency maintains in proposed finding of fact 41 that Resident 13 declined 11 medications and that this was a significant change that should have been reported. Resident 2's MOR reflected that Resident 2 refused assistance with administration of 13 medications on September 8, 2018, and one medication on September 10, 2018. The Agency did not present evidence proving how refusing assistance amounted to a significant change in the resident's condition, as defined in rule 58A-5.0131(32). In addition, it offered only hearsay to prove that Cristal did not inform the resident's health care provider. And nothing indicates that informing the health care provider is recorded on the MOR. The Agency did not prove the charged violation. The Agency maintains that Resident 15's MORs show the resident declined numerous medications in July and September. The evidence did not show this. The resident's MORs document the resident declining assistance in July and September of 2018, not declining medication. The Agency did not prove that declining assistance with medications amounted to a significant change in the resident's condition, as defined by rule. In addition it offered only hearsay to prove that Cristal did not inform the resident's health care provider. Finally, there is no place on the MOR to indicate that a facility informed a resident's health care provider or other appropriate person about a significant change. So the absence of a notation on the MOR does not lead to a conclusion that the facility did not communicate with the health care provider. The Agency did not prove the violation involving Resident 15. Section 429.26(7) imposes obligations to report signs of dementia, signs of cognitive impairment, or a change in a resident's condition to a physician. The Agency did not prove a violation of this statute involving Resident 15 by a preponderance of the evidence. Agency proposed finding of fact 41 discusses application of a topical gel to Resident 15. The resident had a prescription for a topical gel, Diclofenac Sodium, one or two grams to the affected area. A surveyor observed a staff member squeezing a portion of gel onto the staff member's index finger instead of measuring the gel with the pharmacy-provided measuring tape. The surveyor had not heard the resident request any specific amount of the gel. That does not mean the resident had not requested it before the surveyor came within hearing distance. In addition, improper measurement of the medication would not violate section 429.26(7) or rule 58A- 5.0182(1), although it may violate other rules or statutes not charged. Tag 78 – Staffing Standards/Staff B – Alleged violation of rule 58A-5.019(2): The rule establishes requirements for ALF staff. Rule 58A-5.019(2)(a) requires staff to provide, within 30 days of beginning employment, a health care provider's written statement documenting "that the individual does not have any signs or symptoms of communicable disease." Cristal produced a completed form stating that Staff B satisfied the requirement. The Agency's evidence offered to prove that Cristal had not fulfilled its obligation to maintain a health care provider's statement for Staff B was the testimony below and a nearly identical statement in the surveyor's notes on the Statement of Deficiencies. Staff B, when I reviewed her record, she had a statement in the record, and the space for the healthcare provider's signature and name was not legible. Could not determine who completed the form. There were no credentials listed, like "M.D." or "advanced registered nurse." We could not determine who completed the form because the signature was not legible. (Tr. Vol. II, p. 403). The Agency could have entered the form into evidence. But it did not. The absence of the form makes it impossible to determine the accuracy of the witness' characterization or to be confident that the credentials were not provided on the form, rather than also being "illegible." The rule does not impose a legibility requirement on a doctor's signature. These failings result in a failure to prove the charge by a preponderance of the evidence. Tag 93 and Count XXI – Food service standards – Alleged violation of rule 58A-5.020(2): The rule requires a facility to maintain a three day supply of nonperishable food. Fla. Admin. Code R. 58A-5.020(2)(h). It also imposes a requirement to have an emergency supply of water. The rule says: "Water sufficient for drinking and food preparation must also be stored, or the facility must have a plan for obtaining water in an emergency, with the plan coordinated with and reviewed by the local disaster preparedness authority." Cristal's food manager identified an uncovered 100 gallon barrel as containing the facility's sole emergency water supply. This was the only visible supply of emergency water. The barrel contained a dark substance with slime and white particles floating on top. The description of the water and accompanying photographs convincingly establish that the fluid was not potable water. Cristal's administrator at the time also testified at hearing that Cristal did not comply with the requirement for an emergency supply of water. The Agency proved the charged violation by clear and convincing evidence. Cristal's violation was a direct risk to residents. The Agency properly classified it as a Class II violation. Tag 90 and Count V – Staff Training – Alleged violations of rule 58A- 5.0191(11) - (12): Rule 58A-5.0191(11)(a) requires that all facility employees receive at least one hour of training in the facility's Do Not Resuscitate Orders (DNRO) procedures within 60 days of the rule taking effect, if employed on that date, or within 30 days of hiring if hired while the rule was in effect. Rule 58A-5.0191(11)(b) requires newly hired employees to receive the same one hour of DNRO training within 30 days after beginning employment. Rule 58A-5.0191(12) requires a facility to maintain documentation of the training. Agency proposed finding of fact 44 addresses the charged violations of this rule. Ms. Gulian-Andrews testified about the alleged deficiencies involving Staff D. The whole of her relevant testimony was her response: "No, there was not," to the question, "And was there any documentation regarding the facility's specific training?" (Tr. Vol. I, p. 118). There is no testimony about what files she reviewed or how she determined which files to review. Also her memory was not clear enough for her to be certain about other training documents. "Q: Now, was there an online training certificate? A. I think there was, but it does not say in this [referring to surveyor notes]." This is not persuasive evidence establishing by a preponderance of the evidence that Staff D did not have the required training. The Agency relies on the deposition testimony of surveyor Lorienda Crawford (Ex. 116, pp. 4 - 13) to support its claim that Staff A did not have the required certificate. The observations on the evidence about Staff D apply here. The Agency did not prove the charged violation involving Staff A's training. Tag 81 and Count VI – In-service Training – Alleged violations of rule 58A- 5.0191(2) and (3): Rule 58A-5.0191(2) imposes a number of in-service training requirements for staff who provide direct care to residents. Also, rule 58A- 5.024(2)(a)1 requires ALFs to maintain documentation of compliance with all training and continuing education requirements in each staff member’s personnel records. Training in the facility's emergency procedures is one of the training requirements. Training in the facility's elopement policies and procedures is another. Agency proposed finding of fact 45 maintains that Cristal's records did not document that Staff A, B, and C received training in facility-specific emergency procedures and elopement policies. The testimony relied upon suffers from a lack of specificity, details, and information about how the witnesses searched for the required documents leaving the testimony unpersuasive. Also the Agency did not prove that the employees provided direct care. This failure to prove an element of the violation results in the Agency not proving the charged violation. (Paragraph 61 of the Recommended Order in Cristal I highlights the significance of the distinction between requirements imposed upon direct care staff and others.) Rule 58A-5.091(3) requires HIV/AIDS training for all employees. Agency proposed finding of fact 45 did not identify any evidence relevant to a violation of this rule. The agency failed to prove the charged violations by a preponderance of the evidence. Tag 200 and Count XXVI – Environmental Emergency Control Plan – Alleged violation of rule 58A-5.036: Rule 58A-5.036(1) requires an ALF to prepare a detailed plan "to address emergency environmental control in the event of the loss of primary electrical power … ." The requirements for the plan include "acquisition of a sufficient alternate power source such as a generator(s), maintained at the assisted living facility, to ensure that the facility" can maintain ambient air temperatures "at or below 81 degrees Fahrenheit for a minimum of ninety-six (96) hours in the event of the loss of primary electrical power." Fla. Admin. Code R. 58A-5.036(1)(a). The rule also requires a facility to submit its plan to the local emergency management agency for review and approval. Fla. Admin. Code R. 58A-5.036(2). An ALF must maintain a readily available copy of the plan. Rule 58A-5.036(4) requires facilities to implement the plan no later than June 1, 2018. The rule authorizes the Agency to extend an ALF's deadline to January 1, 2019. It also acknowledges a facility's right to seek a waiver or variance under section 120.542, Florida Statutes. To obtain an extension, a facility must show delays caused by issues beyond the facility's control, such as zoning approval processes and construction delays. At the time of the September 2018 survey, Cristal did not have an approved emergency plan. It did not produce a plan for resident care in the event of power loss. Brevard County's Emergency Management office did not approve Cristal's emergency power plan until December 20, 2018. Cristal did not have an emergency generator. It did not have a lease for a generator. The closest Cristal came to documenting fulfillment of the generator requirement was providing an unsigned copy of a rental application. On October 7, 2018, Cristal entered into a lease for a generator. However, by letter dated July 31, 2018, the Agency advised Cristal, "The Agency for Health Care Administration (Agency) has received your request for an extension of time up to January 1, 2019, to come into full compliance with Rule 58A- 5.036, Florida Administrative Code (F.A.C.). Your request has been reviewed and meets the criteria as indicated in the rule and has therefore been approved." (C. Ex. 6). The letter does not limit the extension to just the generator requirement of rule 58A-5.036. Consequently, the Agency did not prove the charged violation by a preponderance of the evidence Tag 813 – Background Screening – Alleged violation of rule 59A-35.090(3)(c): The rule requires a provider, like an ALF, to maintain in an employee's personnel file the eligibility results of an employee's background screening and, in some circumstances, an attestation of compliance with background screening requirements. Fla. Admin. Code R. 59A-35.090. The personnel file for contracted Staff E did not contain current background screening eligibility results. When asked to produce the screening results, Cristal did not. A review of the Agency's background screening website, however, revealed that Contracted Staff E had an eligible screening effective March 29, 2018. The failure to maintain the background screening proof in contracted Contracted Staff E's personnel file is an unclassified violation. Tag 814 and Count XXVII – Background screening – Alleged violation of section 435.12, Florida Statutes: Section 435.12(1) requires the Agency to create a web-based system known as the Care Provider Background Screening Clearinghouse (Clearinghouse). The Clearinghouse maintains the results of background screening and shares them among specified agencies. The law requires employers of persons subject to background screening to register with the Clearinghouse and maintain the employment status of all staff, other than those providing services through a contract with another entity, with the Clearinghouse. Section 435.12(2)(c) requires employers to report initial employment and any changes in status within ten business days. Staff E contracted to provide nursing services at Cristal and worked there regularly. Cristal did not report her employment to the Clearinghouse. Cristal, however, added Contractor E and her background screening results to the Clearinghouse on September 11, 2018, during the survey. Also Contractor E, who also owned an ALF, was background screening eligible with fingerprints retained by the Clearinghouse that would not expire until March 8, 2023. Cristal did not prove that Contractor E was an employee of a separate entity working at Cristal by virtue of a contract with the separate entity. Cristal's failure to report Contractor E's employment to the Clearinghouse is an unclassified violation. Tag 30 and Count IV – Residents 14 and 30 – Alleged violation of rule 58A- 5.0182(6) and sections 429.28(1) - (2): Surveyor Lorienda Crawford noticed that Resident 14's bed had half-rails. The resident was unable to raise and lower the rails. Cristal's Director of Nursing was not aware the resident had obtained them. The half-rails, however, were plainly visible and would have been seen by any employee entering the room. The record does not contain evidence indicating how long the half- rails had been in place. The resident's records did not contain a physician's order for bed rails or anything else indicating that a health care provider had approved their use. Cristal Exhibit 14, page 201, is a document purporting to record telephoned orders for the rails and the resident's consent. Since it records an oral communication, it is inadmissible hearsay. The evidence does not establish a predicate for the business records exception. In addition, the absence of evidence about how, when, and by whom the document was created alone makes it unpersuasive. Rule 58A-5.0182(6)(g) provides: "[T]he use of physical restraints by a facility on a resident must be reviewed by the resident's physician annually. Any device, including half-bed rails, which the resident chooses to use and can remove or avoid without assistance, is not considered a physical restraint." The clear and convincing evidence proved the charged violation. This violation posed an indirect or potential risk to the resident and was properly classified as a Class III violation. Section 429.28(1) guarantees facility residents several rights including 45- day notice of termination of residence, the right to a grievance process, the right to manage their own financial affairs, and the right to a reasonable opportunity for regular exercise. Section 429.28(2) requires prominent display of the Residents' Bill of Rights and contact information for the Elder Abuse Hotline and other resources. These provisions are not implicated in the facts asserted in Agency proposed finding of fact 49. Although the Agency's proposed finding of fact 49 refers to a violation involving Resident 30 and Count IV alleges violations involving other residents, proposed finding of fact 49 only addresses a violation involving Resident 14. All other charges in Count IV are deemed abandoned. Survey Ending December 5, 2018 The December survey was a follow up to the September 2018 re-licensure survey. Tag 30 and Count IV – Residents 4, 11, and 33 – Alleged violations of rule 58A-5.0182(6) and section 429.28(1): Section 429.28(1) is part of the Residents' Bill of Rights described earlier. Rule 58A-5.0182(6), also described earlier, imposes requirements for implementing the rights. Rule 58A-5.0182(6)(b) requires a facility to have a written grievance procedure and to "be able to demonstrate that such procedure is implemented upon receipt of a complaint." Cristal has a grievance policy and procedure. They require Cristal's Executive Director to investigate a complaint and respond to the resident with a resolution within 24 hours or to extend the investigation period. They also require the Executive Director to document the resolution in the resident's chart. A cook whom the residents liked and felt was a good cook gave Cristal notice that she was quitting. Resident 33 was one of several residents who, on September 29, 2018, collectively submitted a complaint on the Cristal grievance log. The grievance stated, "We are furious that we no sooner have a new cook whom everyone seems to like and she's given notice that she's leaving. Now what? Can't Noiri chip in to keep her or is that a joke?" The residents demanded that Cristal increase the cook's pay so she would not leave. (AHCA Ex. 104) Resident 33's chart did not contain documentation of the resolution of the grievance. Cristal's administrator acknowledged that he had not spoken to the residents about their complaint. He, understandably, did not view it as a grievance about Cristal because the residents were not complaining of something Cristal did. The separation was the cook's decision. Nonetheless, Cristal's procedure required Cristal to respond to the complaint with a resolution, even if it was just to reject the grievance. Cristal did not do this. It was unable to demonstrate that, in this instance, it followed its grievance procedure. The Agency proved the charged, technical violation. The violation did not create a risk of any sort to the residents. The violation is unclassified. The Agency asserts that Resident 4 had complained of losing $600.00 and that Cristal had not followed its grievance process. The grievance is not recorded in the grievance log. The evidence to support this charge is vague, lacking details such as dates that might add credence. The evidence is uncorroborated hearsay. The witness's recall and the thoroughness of investigation of the complaint are questionable since the witness also testified that she could not find a Cristal grievance policy, although Cristal unquestionably had one. The witness also expressed difficulty remembering the claimed loss without consulting her survey notes. The Agency did not prove this charge by a preponderance of the evidence. One of the surveyors smelled cigarette smoke on the first floor. She believed the smell was coming from the room of Resident 11. The Agency maintains that this proves Cristal did not provide the "safe and decent living environment, free from abuse and neglect" required by section 429.28(1)(a). The Agency does not maintain that tobacco use at an ALF makes it unsafe and indecent. It could not plausibly do so since rule 58A-5.0182(6)(d) requires a facility to have rules and procedures that must address the facility's policies about alcohol and tobacco use. This plainly contemplates possible tobacco use at an ALF. The Agency claims Resident 11 was violating Cristal's tobacco policies. But it did not offer Cristal's tobacco policies into evidence. The Agency failed to prove the claimed violations involving Residents 4 and 11. Tag 8 and Count XVI – Residents 15 and 16 – Alleged violations of rule 58A- 5.0181(2) and section 429.26(4)-(6): The requirement to obtain and maintain accurate and complete health assessments imposed by the rule and statute were discussed earlier. The health assessment form for Resident 15 stated on page one that the resident required a nurse to administer medication. On page four the form indicated Resident 15 only needed assistance with self-administration, which may be performed by non-licensed personnel. Cristal bore the obligation to seek clarification of the conflict. It had not done so. The Agency proved by clear and convincing evidence that Cristal violated rule 58A-5.0181(2)(a)5 with Resident 15. The Agency had cited Cristal for this very violation with this resident during the September 14, 2018, survey. (Finding of Fact 89). This violation posed an indirect or potential risk to the resident. The Agency properly classified it as a Class III violation. The Agency argues that Cristal did not have a completed health assessment form for Resident 16. Agency Exhibit 109, the health assessment form for Resident 16 indicated that the provider conducted the examination on October 31, 2020, an obvious typo. Cristal Exhibit 28, pages 1 through 5, also a health assessment form for Resident 16, records a July 27, 2018, date of examination. It is complete and detailed. The record includes contradictory and sincere, credible testimony from surveyor Ms. Williams and Cristal former Administrator Mr. Marcotte, both of whom reviewed the document on the day of the survey. The unresolved and unexplained conflict results in a failure to prove the alleged violation involving Resident 16 by a preponderance of the evidence. Tag 54 – Resident 3 – Alleged violation of rule 58A-5.0185(5)(b): The rule requires an ALF to "maintain a daily medication observation record (MOR) for each resident who receives assistance with self-administration of medications or medication administration." It must include a chart recording each time the medication is administered, any missed dosages, refusals to take the medication, and medication errors. The rule states emphatically: "The MOR must be immediately updated each time the medication is offered or administered." On December 4, 2018, a Cristal unit manager provided surveyor Robin Williams a November 2018 MOR for Resident 3 with a print date of December 4, 2018. The MOR indicated that Resident 3 was to receive Morphine Sulfate ER 30 milligram tablets once every eight hours to be taken by mouth. The MOR did not record administration of the drug at 2:00 p.m. on November 17, 2018, or the 10:00 p.m. dose on November 22, 2018. Ms. Williams discussed the omission with Cristal's unit manager. The next day the unit manager gave Ms. Williams a copy of the MOR printed December 5, 2018. This copy had staff initials indicating that the two omitted dosages had been administered. The unit manager offered no explanation of why the MOR had changed. The details of the surveyor notes, testimony from the surveyor at the hearing, the clear and distinct memory of the witness at the hearing, the precision of her testimony, as well as the consistency of the testimony with the contemporaneous survey notes left no uncertainty about the truth or accuracy of Ms. Williams' testimony. The clear and convincing evidence proves that Cristal violated the requirement to immediately update the MOR. This violation posed an indirect or potential risk to the resident. The agency properly classified it as a Class III violation. Tag 55 and Count XVIII – Resident 37 – Alleged violation of rule 58A- 5.0185(6): The rule requires facilities to centrally store medications which it administers. The Agency failed to prove this charge by a preponderance of the evidence. Its proof relies upon hearsay. The witness’s memory was not clear and distinct. One example is this testimony on page 424 of Volume II of the Transcript. So later it was found that the resident would go to the pharmacy and pick up her own medication. And she would – she would bring everything back, but she kept those two. And the resident – it was "concerned" because the resident had a history of suicide and the healthcare provider did not want her to have her medication. In addition, the evidence did not prove that Cristal administered the medication. It proved that Cristal assisted the resident with administration. Tag 56 and Count XIV – Residents 12 and 39 – Alleged violation of rule 58A- 5.0185(7): Rule 58A-5.0185(7)(c) requires a facility to contact the prescriber of any medication with directions to administer "as needed" to obtain revised instructions. Surveyor Vanessia Bulger testified that during the survey ending December 5, 2018, the instructions on Resident 12's Tramadol and on her MOR said that the medication should be administered as needed. She also observed that the label and MOR instructions for Ventolin HFA, 108, stated to administer the drug as needed. She testified that the instructions on the MOR did not indicate when to administer the medications. The MORs do. For Tramadol, the MOR says it should be administered as needed for pain. For Ventolin, the MOR says that it should be taken for shortness of breath. There is no explanation why the witness either did not see the instructions or did not mention them during testimony. The Agency did not prove the alleged violation involving Resident 12.5 Agency proposed finding of fact 55, which addresses the alleged violations involving Residents 12 and 39, does not identify any evidence related to a violation involving Resident 39. That claim is therefore deemed abandoned. Tag 152 and Count XX – Physical Plant/Safe Living – Alleged violations of rule 58A-5.023(3): The carpeting of the first floor of Cristal had multiple large, black stains. They also had an odor. The Agency offered no evidence about what caused the stains or the odor. The hallway paint of the first floor was chipped. Paint was peeling from the walls. The walls were also scuffed. The wall board between two doors was broken near the baseboard. Scars and bumps on walls caused by wheelchairs are normal in ALFs. Damage caused by residents requiring repair is common in ALFs. Rule 58A-5.023(3) requires ALFs to provide a safe living environment, to maintain a hazard-free facility, and to insure that systems and appurtenances are in good working order. The Agency did not offer evidence to show what caused the 5 This determinative contrast between a witness's recollection of what a document stated and what the document actually stated is a compelling example of the risks in relying upon testimony about a document to prove what a document says. stains, such as evidence that they were due to mold. It also did not offer persuasive evidence to show how long the conditions identified had existed. The items described above are unsightly and make the facility unattractive at best. But a preponderance of the evidence does not establish that they make the facility unsafe or hazardous or that any building system is not in good working order. The Agency did not prove these charges. Tag 163 – Resident 3 – Fraudulent Records – Alleged violation of section 429.29: Agency proposed finding of fact 57 addressing these charges relies upon the same facts as those involving the charge about Resident 3's MOR in Findings of Fact 159 and 160. A preponderance of the evidence does not establish that the obvious change was made to deceive or misrepresent. It could as easily have been Cristal’s effort to cure the deficiency. Section 429.29 is the only statute that the Agency argues, in proposed finding of fact 57 that Cristal violated. That section, titled "Civil actions to enforce rights," creates a cause of action for residents whose rights established under Chapter 429 are violated. It also specifies the damages available, the burden of proof, the standard of proof, and the elements that a party must prove to recover. It does not create any requirement or prohibition affecting the operation of ALFs in general or regarding alleged fraud in ALF records specifically. Tag 168 and Count VII – Resident 4 – Alleged violation of section 429.24(3)(a): Section 429.24 governs contracts between ALFs and residents. Subsection (3)(a) requires contracts to include a refund policy. The policy must "provide that the resident or responsible party is entitled to a prorated refund [of advanced rent or security deposit upon departing the ALF] based on the daily rate for any unused portion of payment beyond the termination date after all charges, including the cost of damages to the residential unit resulting from circumstances other than normal use, have been paid to the licensee." The law further requires an ALF to make the refund within 45 days of the termination date. It also states that if a facility fails to comply with the refund provisions the Agency shall impose a fine equal to three times the amount due the resident. On August 13, 2018, Nathan Marcotte, Cristal's Administrator at the time, gave Resident 4 a letter reading as follows: This is to inform you that Cristal Palace Resort PB LLC is no longer able to operate as a secured memory care facility. While we regret to inform you of this decision, we are excited about the opportunity for you to find a community in which you can thrive and be stimulated in the manner you deserve. Pursuant to our agreement and Florida regulations, this notice is being issued and gives 45 days to relocate. We have thoroughly enjoyed working with you, and only make this decision based on your needs and quality of life. We ask that you please not feel abandoned or alone in this process-we at Cristal Palace have become family, and we intend to assist in every manner possible. Additionally, as an act of good faith, we have decided to refund your community fee of $1,500, as it is in no way the fault of your or your family that we have come to this decision. Please do not hesitate to call so that we can begin assisting you in finding your next, permanent home. Resident 4 lived at Cristal for four months. As of the date of the hearing, Cristal had not paid the promised $1,500. Cristal's contract with Resident 4 contained the required refund terms. Mr. Marcotte testified that he made a mistake and wrote the letter before checking for damage or other items that could be lawfully deducted from the required refund. Mr. Marcotte did not testify that he followed the process section 429.24(3)(a) requires an ALF to follow if it intends to make a claim against a refund. The required process includes providing written notice of the claim. He also did not identify any specific damages or charges that Cristal maintained it was entitled to deduct from the refund. Clear and convincing evidence proved Cristal violated section 429.24(3)(a) by not giving Resident 4 his refund. The statute authorizes the Agency to collect a fine equal to three times the amount due the resident. In this case that amount would be $4,500.00. The statute requires the Agency to remit one-half of the fine ($2,250.00) to the resident or the resident's estate. Tag 90 and Count V – Alleged violation of rule 58A-5.0191(11): This rule governs DNRO training requirements addressed earlier. The rule requires direct care staff and staff involved in resident admission to receive at least one hour of facility- specific training in DNRO policies and procedures. Rule 58A-5.0191(12)(c) requires an ALF to document that staff completed required training. Therefore, if Cristal provided staff the required facility-specific training in DNROs, Cristal would have been able to provide the surveyors with documentation of the training. This is another instance where the witness's testimony describing documents she said she saw is too vague and imprecise to be persuasive. The witness said broadly that "the staff did not have the required do not resuscitate order training." (Tr. Vol. II, pp. 413 - 414). The witness did not identify which staff members allegedly did not receive the required training. For that matter, neither does the Agency's proposed finding of fact 59, which addresses this charge. It refers only to "staff." The witness offered only general descriptions of certificates and agendas that she reviewed. She provided no information about where she found them, what efforts she made to determine if they were the only relevant documents, when the staff members were employed, or in what capacity they worked. The Agency did not offer the documents into evidence. This testimony is insufficient to be corroborated by the statements recorded in the surveyors' notes. In addition, the notes suffer from the same deficiencies as the testimony, other than identifying individual staff members. Furthermore, the notes are a collective work leaving the reviewer to guess which portions of them the witness authored. The Agency did not prove these charges by a preponderance of the evidence. Tag 81 and Count VI – In-service Training – Alleged violation of rule 58A- 5.0191(2) - (3): Agency proposed finding of fact 60 maintains that Staff C and F did not receive the training required by rule 58A-5.0191(2) and (3.) Agency proposed finding of fact 60 addresses this charge. Rule 58A-5.0191(2)(a)-(d) requires specific training for staff who provide direct care to residents. The Agency did not prove by a preponderance of the evidence that Staff C and F provided direct care to residents. (Page 26 of the Recommended Order in Cristal I highlights the significance of the distinction between requirements imposed upon direct care staff and others.) In addition, Agency Exhibit 137, which is the surveyor notes that the Agency cites as supporting this charge, distinguish between staff and caregivers. Agency Exhibit 137 describes Staff C and F as staff, not caregivers. The Agency failed to prove that Cristal was required to provide the training required by rule 58A- 5.0191(2)(a)-(d) to Staff C and F. Rule 58A-5.0191(2)(f) requires all facility staff to receive in-service training on the facility's elopement policies and procedures within 30 days of employment. It does not require that the training last a specific period of time. The Agency did not prove by a preponderance of the evidence that Staff C and F did not receive elopement training. In fact, Agency Exhibit 137 indicates that they did. Rule 58A-5.0191(3) requires facility employees to "complete a one-time education course on HIV and AIDS … ." The record citations that the Agency provided in proposed finding of fact 60 to prove the charges here do not mention HIV and AIDS education or training. The alleged violation involving HIV and AIDS training is deemed abandoned. The Agency also did not prove a violation of rule 58A- 5.0191(3). Tag 161 – Staff Records – Alleged violation of rule 58A-5.024(2) and section 429.275(2), Florida Statutes: Rule 58A-5.024(2)(a) mandates that the personnel records for each staff member contain "a copy of the employment application, with references furnished… ." The Agency maintains in proposed finding of fact 61 that the personnel records of employee G did not contain an employment application. The only evidence the Agency cites to prove this charge is Agency Exhibit 137, which is the composite surveyor notes of eight individuals. It states the personnel record for staff (G) did not contain an employment application. It also states that the administrator confirmed the record did not contain an application and that the administrator could not produce one. The surveyor notes are inadmissible hearsay which is not sufficient to prove what the administrator said. In addition, if the notes were not hearsay, they would not be persuasive because the details are sketchy. For instance, the notes do not advise how the surveyors made sure they had reviewed the entire personnel record. Also the notes do not identify who authored the observations and statements they record. The Agency failed to prove this charge. Section 429.275 requires facility administrators and owners to maintain accurate business records and liability insurance coverage. It lists documents that the administrator and owner must maintain in the personnel records for each staff member. A copy of the employment application with references is not one of the required records. The Agency did not prove Cristal violated this statute. Tag 25 and Count X – Resident 15 – Alleged violation of rule 58A-5.0182(1) and section 429.26(7): Rule 58A-5.0182(1)(d) requires a facility to contact a resident's health care provider or other appropriate party if the resident exhibits a "significant change." Section 429.26(7) requires a facility to notify a licensed physician "when a resident exhibits signs of dementia or cognitive impairment or has a change of condition in order to rule out the presence of an underlying physiological condition that may be contributing to such dementia or impairment." The Agency contends, in proposed finding of fact 62, that the statement in MORs for Resident 15 say Resident 15 "declined numerous prescribed medications" in September and October of 2018 document a “significant change" or "change of condition" requiring Cristal to contact the resident's health care provider. The Agency cites Exhibit 141, Surveyors' Notes, to support its claim. That document states Resident 15 refused to take her medications on nine days in November. One of the surveyors, Ms. Williams, testified that Resident 15's MORs for July 2018 and September 2018 document that the patient refused medications. The MORs are Agency Exhibits 83 and 84. The exhibits do not indicate that the resident refused medications. They indicate that Resident 15 declined assistance with administration of several medications. The Agency's Medication Practices rule separately defines assistance with self-administration and administration. Compare, Fla. Admin. Code R. 58A-5.0185(3) and Fla. Admin. Code R. 58A-5.0185(4). Assistance includes minor actions such as opening the medication container or making water or cups available. Id. The Agency did not prove that Resident 15 declined medication. The Agency did not prove that refusing assistance with medication was a "significant change." The Agency also did not prove that if the resident had refused the medications, the refusal would have amounted to a significant change. It offered only a witness's broad, conclusory, summary opinion. The witness did not discuss information such as the conditions the medications treated, the likely effect of not taking them, or any perceived changes in the resident's condition. The witness did not identify changes in the resident's conduct that were signs of dementia or cognitive impairment. The Agency did not prove the charged violations by a preponderance of the evidence. Tag 162 – Resident 35 – Alleged violation of Rule 58A-5.024(3): Rule 58A- 5.024(3)(g) requires facilities that will have unlicensed staff assist residents with self- administration of medications to maintain "a copy of written informed consent described in Rule 58A-5.0181, F.A.C. if such consent is not included in the resident's contract." Fla. Admin. Code R. 58A-5.0181(1)(e)1 requires written, informed consent for unlicensed staff to provide assistance administering medication. Cristal uses an informed consent form that calls for the resident to choose "will" or "will not" to indicate consent to unlicensed staff assisting with self-administration of medications. The form for Resident 35 was signed and dated August 22, 2018. Neither "will" nor "will not" was selected. When the surveyor asked the administrator about the form, he took the form to the resident who selected "will not." The administrator provided the surveyor a copy of the amended form. This was on December 4, 2018, the day of the survey. The Agency described this matter in its proposed finding of fact 63. It did not seek a determination that this was a deficiency of any class, a tacit acknowledgement that Cristal timely cured the violation. Tag 200 and Count XXVI – Detailed Emergency Environmental Control Plan – Alleged violation of Rule 58A-5.036: This violation was also among the charges arising from the September visit. The alleged violation of Tag 200 is that Cristal did not have an emergency power supply as required by rule 58A-5.036(1). At the time of the December visit, Cristal did not have the required emergency power supply installed. It did have two generators awaiting installation. But the Agency extension of the time period during which Cristal must establish an emergency power supply was still in effect. As of January 9, 2019, Cristal had one installed LP gas fueled generator. The evidence does not indicate that the generator's cooling capacity satisfied rule requirements. The generator was not connected to a fuel source. Live electrical wiring was exposed. Clear and convincing evidence proves that Cristal was not in compliance with rule 58A-5.036(1) in January, 2019. But this was not the month for which the Agency charged a violation as presented in Agency proposed finding of fact 64. The Agency did not prove the charged violation. Tag 816 and Count XXIII – Background Screening Compliance – Alleged violation of section 408.809(2): Agency proposed finding of fact 65 and Count XXIII assert that section 408.809(2), Florida Statutes, "requires that persons subject to criminal history background screening execute an attestation of compliance with the provisions of Chapter 435, Florida Statutes, as part of the background screening process." The Agency claims that the personnel records of Cristal staff F and G did not contain an attestation of compliance. Section 408.809(2)(c) is the part of the statute that the Agency argues Cristal violated which refers to an attestation of compliance. The relevant part of the statute establishes an alternative to the background screening through the Agency requirement permitting a provider to use proof of meeting the background screening requirements of five other agencies in lieu of meeting the requirements if the provider satisfies three requirements. The pertinent part says: Until a specified agency is fully implemented in the clearinghouse created under s. 435.12, the agency may accept as satisfying the requirements of this section proof of compliance with level 2 screening standards submitted within the previous 5 years to meet any provider or professional licensure requirements of the agency, the Department of Health, the Department of Elderly Affairs, the Agency for Persons with Disabilities, the Department of Children and Families, or the Department of Financial Services for an applicant for a certificate of authority or provisional certificate of authority to operate a continuing care retirement community under chapter 651, provided that: The screening standards and disqualifying offenses for the prior screening are equivalent to those specified in s. 435.04 and this section; The person subject to screening has not had a break in service from a position that requires level 2 screening for more than 90 days; and Such proof is accompanied, under penalty of perjury, by an attestation of compliance with chapter 435 and this section using forms provided by the agency. The statute does not require an affidavit or attestation of compliance for providers that do not rely upon the exception. Also, Cristal and the Agency participated in the Clearinghouse. In fact the Agency seeks to sanction Cristal for not reporting employment of a different individual to the Clearinghouse. (Tr.,Vol. I, pp. 133 and 134). Cristal maintains that its Exhibit 11 includes an attestation by each employee. The exhibit contains attestations dated December 6, 2016. The record does not establish that the individuals who signed the attestations are Staff F and G. The Agency did not prove that Staff F and G were relying upon the alternative means of satisfying background screening requirements. In fact, the testimony in Volume II of the Transcript, pages 486 to 498, cited by the Agency, does not mention this alleged violation. Testimony about the alleged violation appears at page 427 of Volume I and pages 471 and 472 of Volume III. It only says the records did not contain affidavits. The testimony says nothing about the circumstances in which compliance attestations are required. Consequently, the Agency did not prove this charge. Tag 77 – Administrator – Alleged violation of rule 58A-5.019(1) and section 429.176: The Agency charges three Tag 77 violations, one each for the July, September, and December survey periods. Proposed Agency findings of fact 32, 50, and 66 address these tags. For July 2017, the Agency asserts the violation amounts to a class III violation. This is also the charge of Count XXIV. For September 14, 2018, the Agency asserts the violation is a Class II violation. For December 5, 2018, the Agency asserts the violation is a Class III violation. This is also the charge of Count XXV. All three Tag 77 violations rely upon the tag violations alleged for each survey period. Count XXIV is the companion to the Tag 77 charge for the September survey period. Section 429.176 states: If, during the period for which a license is issued, the owner changes administrators, the owner must notify the agency of the change within 10 days and provide documentation within 90 days that the new administrator has completed the applicable core educational requirements under s. 429.52. A facility may not be operated for more than 120 consecutive days without an administrator who has completed the core educational requirements. The Agency does not propose any findings of fact about changes in Cristal administrators. Consequently, this claim is deemed abandoned. This Recommended Order does not address the statute further. Rule 58A-5.019(1) requires that: [e]very facility must be under the supervision of an administrator who is responsible for the operation and maintenance of the facility including management of all staff and the provision of appropriate care to all residents as required by chapters 408, Part II, 429, part I, F.S. and rule chapter 59A-35, F.A.C., and this rule chapter. Each of the proposed findings asserting Tag 77 violations relies upon the tags from its survey period. Each proposes that: [t]he totality of the deficient practices cited during the [survey period] reflect multiple failures in facility compliance with minimum standards including resident care, record keeping, physical plant and resident safety. The multiple failures demonstrate the administrator was not fulfilling the administrator's role in the management of staff and the provision of resident care. For the survey period ending July 13, 2017, the proven failures upon which the Agency can rely for Tag 77 are four class III violations, asserted in Tags 8, 54, 93, and 162, and one class II violation asserted in Tag 25. The Tag 8 offenses are deficient health assessment forms for Residents 22, 7, and 4. The Tag 54 offenses are deficient MORs for three residents. The Tag 93 offense is a failure to comply with requirements for dating, posting, and conforming to menus. The Class III offense in Tag 162 was failure to maintain weight records required by rule. The Class II offense proven for Tag 25 was failure to notify a resident's health care provider when the patient was transferred to a hospital. These offenses follow three Class III offenses from the May 10, 2017, survey period, two of which are the same as the July offenses. They include Tag 8 health assessment form deficiencies which should have triggered increased attention to fulfilling the requirement to ensure proper completion of the forms. Yet the violation persists in the July period. The May deficiencies also include a Tag 56 deficiency of failing to identify the patient who was to receive medication and a Tag 93 violation of failing to post the resident menu as required. The menu violation should have focused Cristal on complying with the relatively simple requirement to date, post, and maintain menus. Instead Cristal did not cure the problem, giving rise to another Tag 93 offense for the July 13, 2017 period. These offenses demonstrate a failure to operate and manage Cristal to provide appropriate care to the residents. The clear and convincing evidence supports the Agency determination that this failure is an indirect or potential risk to residents. It is properly classified as a Class III violation. For the survey period ending September 14, 2017, the proven failures upon which the Agency can rely for Tag 77 are five Class III violations, one Class II violation, and two unclassified violations. The unclassified violations both involve background screening recordkeeping. The Tag 813 deficiency is for failing to have background screening results in a personnel file, although the Clearinghouse reported a clear background screening for the staff member. The Tag 814 deficiency is for failing to report the contractual employment of the staff member to the Clearinghouse. The Class IV violation, identified as Tag 167, is for failure to have a required contractual provision in Cristal's contract with Resident 18. The first Class III violation is that once again Cristal has a Tag 8, health assessment form violation. Tag 54 is the second Class III violation. Once again Cristal has a Tag 54 violation involving deficient MORs. The third Class III violation is Tag 56. Cristal did not seek rule-required clarification of a "use as needed" prescription. The fourth Class III violation is a Tag 160 violation for failing to maintain an accurate admission and discharge log. The fifth Class III violation is a Tag 30 violation for permitting bed-rails, which are considered a restraint, without proper authorization or consent. For the period ending September 14, 2018, Cristal continued its pattern of failure to comply with recordkeeping requirements. It also failed to comply with an important and elementary requirement to maintain an emergency supply of water. This is the Class II violation of Tag 93. These violations reflect a sustained failure to manage the facility in a way that provides Cristal's residents appropriate care. These management failures create a direct risk to residents. The Agency properly classified the September Tag 77 as a Class II violation. The proven offenses supporting the Tag 77 violation for the period ending December 5, 2018, are two Class III violations, one unclassified violation, and a contractual violation. The Tag 30 violation is unclassified. It is for failure to process complaints about a cook's decision to quit as a grievance. One Class III violation is yet another Tag 8 failure to obtain and maintain complete health assessments. The other Class III violation is another Tag 54 deficiency involving failure to keep accurate MORs. The fine is for failure to follow the statutorily required process for refunding deposits and advance payments. The repeating nature of the offenses involving health assessments and MORs create an indirect or potential risk to residents. The Agency proved the September Tag 77 and Count XXIV, in part. The Agency correctly classified this as a Class III violation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration issue a final order: denying the application for license renewal of Cristal Palace Resort PB, LLC; imposing administrative fines in the total amount of $23,000; and requiring the Agency to remit $2,250 of Cristal's fine to Resident 4 or Resident 4's successors or heirs. DONE AND ENTERED this 17th day of March, 2020, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of March, 2020. COPIES FURNISHED: Nicola Brown, Esquire Agency for Health Care Administration Suite 330H 525 Mirror Lake Drive North St. Petersburg, Florida 33701 (eServed) John E. Terrel, Esquire John E. Terrel, P.A. Suite 11-116 1700 North Monroe Street Tallahassee, Florida 32303 (eServed) Thomas J. Walsh, II, Esquire Agency for Health Care Administration Suite 330H 525 Mirror Lake Drive North St. Petersburg, Florida 33701 (eServed) Richard J. Shoop, Agency Clerk Agency for Health Care Administration Mail Stop 3 2727 Mahan Drive Tallahassee, Florida 32308 (eServed) Mary C. Mayhew, Secretary Agency for Health Care Administration Mail Stop 1 2727 Mahan Drive Tallahassee, Florida 32308 (eServed) Stefan Grow, General Counsel Agency for Health Care Administration Mail Stop 3 2727 Mahan Drive Tallahassee, Florida 32308 (eServed) Shena L. Grantham, Esquire Agency for Health Care Administration Mail Stop 3, Room 3407B 2727 Mahan Drive Tallahassee, Florida 32308 (eServed) Thomas M. Hoeler, Esquire Agency for Health Care Administration Mail Stop 3 2727 Mahan Drive Tallahassee, Florida 32308 (eServed)
Findings Of Fact On February 21, 1992, Peggy Angle wrote a letter to Respondent stating that Petitioner allowed his six-month old son "to roam" (presumably, crawl) through patient treatment areas in Petitioner's dental office, which Ms. Angle described as unclean on "several occasions." Ms. Angle raised additional complaints in her letter and requested an investigation. Upon receiving the complaint, one of Respondent's investigators performed an unannounced inspection of Petitioner's office on June 4, 1992. The investigator found the office to be "messy and cluttered." Based on the investigator's findings, Respondent retained an expert to make an unannounced inspection with one of Respondent's investigators. The inspection took place on June 18, 1992. At the time of the unannounced inspection, Petitioner, his wife, and their child were on vacation. They had purchased the trip at the last moment at a reduced rate, so they had not been able to plan extensively for their departure. The record is unclear as to how long Petitioner had been gone when the inspection took place. He had been gone for at least several days. In any event, at the time of the June 18 inspection, the office smelled musty and the carpeting was discolored. There was also debris on the floor, although this was due to the presence of the woman (and her child) whom Petitioner had asked to stay at the office and answer the phone. At the time of the inspection, the expert and investigator found several handpieces and metal-tipped syringes out on the counter, rather than sanitized and bagged. Likewise, they found x-ray rings unsanitized. Surplus scalers were in drawers, also unbagged, but they were not used on patients. The expert and investigator noticed several other relatively insignificant items. Petitioner intended to sanitize the above-described equipment upon his return. Likewise, he intended to repair other equipment at the office before reopening it. Based upon his inspection, the expert advised Respondent's counsel by letter dated June 22, 1992, of the above- described conditions and concluded that "I can state the office in general has a dirty, unsanitary appearance and is in violation of 466.028(1)(v), Failure to provide and maintain reasonable sanitary facilities and conditions . . .." He noted other violations, including breaches of various rules requiring sterilization of instruments. On September 17, 1992, the probable cause panel met and determined that probable cause existed to charge Petitioner with a violation of Section 466.028(1)(bb)(v), Florida Statutes, which involves the failure to maintain proper sterilization and disinfection procedures. On October 26, 1992, Respondent filed an Administrative Complaint against Petitioner, alleging that the above-described conditions constituted violations of various statutes and rules requiring the provision and maintenance of sanitary conditions. By Order entered September 10, 1993, the hearing officer allowed Respondent to amend the Administrative Complaint to make a minor addition to the charging allegations. Following the hearing, the hearing officer entered a recommended order finding that, despite the above-described conditions, Respondent had failed to prove by clear and convincing evidence the grounds on which Respondent had proposed to discipline Petitioner. The recommended order concluded that the amended administrative complaint should be dismissed against Petitioner. The Board of Dentistry subsequently entered a final order adopting the recommended order and dismissing all charges against Petitioner. At the meeting to consider the recommended order, one member of the Board of Dentistry questioned the wisdom of a prosecution based on a closed office without patients and expressed his opinion that the probable cause panel should not have directed the filing of an administrative complaint in the case. Understandably, Petitioner argues in his proposed final order that an inspection of a closed office--without a dentist or patients--cannot support a finding of probable cause. This is untrue. The unspoken assumption in Respondent's disciplinary case was that one could reasonably infer that Petitioner failed to follow sanitary practices, given the condition of the closed office while Petitioner was gone. The inference sought by Respondent in the disciplinary case was strengthened somewhat by the conditions noted two weeks earlier by the first investigator while the office was open. The inference was weakened by Respondent's failure to address much else besides what the second investigator found during his visit to the closed office. Facts evidently left unaddressed in the investigation include how long Petitioner had been gone at the time of the second inspection and the condition of the office when he left. On balance, though, Respondent had a reasonable basis in fact and law to proceed against Petitioner. Respondent legitimately proceeded in the hope of prevailing based on the inference. The above-described facts justified the prosecution, especially in view of the importance of the alleged violations, which involved provisions intended to ensure that infectious diseases not be transmitted between patients or between a dentist and his patients.
The Issue The issue to be resolved is whether Petitioner is entitled to additional credit for her response to question nos. 122 and 222 of the civil engineering examination administered on October 31, 1997.
Findings Of Fact On October 31, 1997, Petitioner took the civil professional engineering licensing examination. A score of 70 is required to pass the test. Petitioner obtained a score of 69. Petitioner challenged the scoring of question nos. 122 and 222. As part of the examination challenge process, Petitioner's examination was returned to the National Council of Examiners for Engineering and Surveying where it was re-scored. In the re-score process, the grader deducted points from Petitioner's original score. Petitioner was given the same raw score of 6 on question number 122; however, on question number 222 her raw score of 4 was reduced to a 2. Petitioner needed a raw score of 48 in order to achieve a passing score of 70; she needed at least three additional raw score points to obtain a passing raw score of 48. Petitioner is entitled to a score of 6 on problem number 122. The solution and scoring plan for that problem required the candidate to obtain a culvert size in the range of 21-36 inches. The Petitioner incorrectly answered 3.1 feet or 37.2 inches. She is not entitled to additional credit for problem number 122 because she answered the question with the wrong size culvert. Problem number 122 required the candidate to use a predevelopment peak flow of 40 cubic feet per second (cfs). Petitioner used 58.33 cfs. She chose the maximum flow rather than the predevelopment peak flow. In solving problem number 122, Petitioner chose a design headwater depth of 4.8 feet. The correct solution required a design headwater depth of 5.7 feet. Petitioner made another mistake in problem number 122; she failed to check the water depth in the downstream swale. Petitioner concedes she was given sufficient information to solve problem number 122. She understood what the question was asking of her. She admits that she did not compute the critical depth of the water and that she did not complete the solution. Question number 222 had three parts. The candidate was required to determine the footing size, to select the reinforcing steel, and to provide a sketch for a concrete column located along the edge of a building. Petitioner understood the question and was provided enough information to solve the problem. Petitioner correctly checked the footing size as required by the first part; however, she did not select the reinforcing steel or show the required sketch. Therefore, Petitioner did not complete enough of the problem to qualify for a score of 4 points. She is entitled to a score of 2 points. The examination questions at issue here were properly designed to test the candidate's competency in solving typical problems in real life. The grader (re-scorer) utilized the scoring plan correctly. Petitioner has been in the United States for approximately eleven years. She lived in Romania before she came to the United States. In Romania, Petitioner used only the metric system in her professional work. While she has used the English system since moving to the United States, Petitioner is more familiar with the metric system. The Principles and Practice examination is an open-book examination. Petitioner took a book entitled the Fundamentals of Engineering Reference Handbook to the examination. When the proctor examined her books, she told the Petitioner she was not permitted to keep the handbook. The proctor took the handbook from the Petitioner. Petitioner protested the confiscation of her reference book because she had used the same book in two previous tests. About ten minutes later, the proctor's supervisor returned the book to Petitioner. Petitioner's book was returned at least ten minutes before the test began. She was permitted to use the book during the test. There is no persuasive evidence that the proctor's mistake in temporarily removing Petitioner's reference book caused her to be so upset that she failed the test. Candidates were not permitted to study their books prior to the beginning of the examination. Petitioner may have been nervous when the test began. However, Petitioner received a perfect score of ten points on the first problem she worked, problem number 121.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED that the Board of Professional Engineers enter a Final Order confirming Petitioner's score on the examination and dismissing the Petitioner's challenge. DONE AND ENTERED this 13th day of January, 1999, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD 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 13th day of January, 1999. COPIES FURNISHED: Natalie A. Lowe, Esquire Board of Professional Engineers 1208 Hays Street Tallahassee, Florida 32301 William Bruce Muench, Esquire 438 East Monroe Street Jacksonville, Florida 32202 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Dennis Bartin, President Florida Engineers Management Corporation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether or not Respondent's denial of Petitioner's application for certification as a licensed plumber was proper.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record 1/ compiled herein, the following relevant facts are found. During mid-April of 1981, Petitioner, David L. Mooney, filed an application to be certified to sit for the next Certified Contractors' Examination with the Respondent, Construction Industry Licensing Board. Since approximately 1969, Petitioner had been a resident of Newton, New Jersey, where he was licensed as a Master Plumber. While residing in New Jersey, Petitioner was in a private plumbing business which was fairly successful, however, due to the weather conditions in the New Jersey area, the plumbing business is primarily a seasonal business. As a result of the seasonal nature of the plumbing business in New Jersey, Petitioner's business also had cash-flow problems. Petitioner also experienced personal financial problems in connection with his adoption of a son while in New Jersey. Petitioner was forced to expend a substantial amount of money in legal fees and had to leave the State of New Jersey in order to gain the release of the adopted son. Briefly, and more specifically, evidence reveals that the adopted son had several brushes with the law, including an involvement in an armed robbery and arson of a country club. (Testimony of Petitioner.) Petitioner's application was examined by members of the Respondent, Construction Industry Licensing Board (Board), and the Board decided that it could not certify Petitioner to sit for licensure as a certified contractor due to a lack of financial responsibility. An examination of Petitioner's application for licensure to sit for the Certified Contractors' examination reveals that at the time in which he filed his application, his cash on hand amounted to $500.00 with virtually no assets and he had incurred liabilities in excess of $118,000.00. Petitioner's application reveals that there were outstanding judgments against him, tax liens, and several past due and delinquent accounts and/or bills.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Respondent deny Petitioner's application for certification as a plumbing contractor in the State of Florida. RECOMMENDED this 25th day of February, 1982, in Tallahassee, Florida. JAMES E. BRADWELL, 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 25th day of February, 1982
The Issue Did Petitioner pass the Mechanical Engineers Examination he took on April 24, 1998?
Findings Of Fact On April 24, 1998, Petitioner took the Mechanical Engineers Examination. He received a score of 69 for his effort. A passing score was 70. The Mechanical Engineers Examination was administered under Respondent's auspices. As alluded to in the preliminary statement, Petitioner challenged the score received on problem 146. The maximum score available for that problem was ten points. Petitioner received eight points. In accordance with the National Council of Examiners for Engineering and Surveying Principles in Practice of Engineering Examinations for spring 1998, score conversion table - discipline specific, Petitioner had a raw score of 47 which equated to a conversion of 69, to include the eight raw points received for problem 146. In addition, the examination provided a scoring plan for problem 146, which assigns scores in increments of two points from zero to ten. To pass, it would be necessary for Petitioner to receive an incremental increase of two points, raising his score from eight points to ten points. This would give him a raw score of 49 points. According to the score conversion table - discipline specific, that would give Petitioner 71 points. According to the scoring plan for problem 146 to receive the ten points, Petitioner would have to demonstrate: Exceptional competence (it is not necessary that the solution to the problem be perfect) generally complete, one math error. Shows in-depth understanding of cooling load calculation psychrometrics. Problem 146 required Petitioner to: Determine the required cooling coil supply air quantity (cfm) and the conditions (°F db and °F wb) of the air entering and leaving the coil." Petitioner was provided a psychrometric chart to assist in solving problem 146. The examination candidates were also allowed to bring reference sources to the examination to assist in solving the examination problems. Petitioner brought to the examination, the Air-Conditioning Systems Design Manual prepared by the ASHRAE 581-RP Project Team, Harold G. Lorsch, Principal Investigator. Petitioner used that manual to determine the wet-bulb temperature of the air entering the coil. In particular, he used an equation from the manual involving air mixtures. For that part of the solution he arrived at a temperature of 65.6°F wb. According to the problem solution by Respondent's affiliate testing agency, reference ASHRAE Fundamentals Chapter 26, the coil entering wet-bulb temperature taken from the psychrometric chart was 66.12°F wb. The scorer in grading Petitioner's solution for problem 146 placed an "x" by the answer provided 65.6°F wb and wrote the words "psychrometric chart." No other entry or comment was made by that scorer in initially reviewing the solution Petitioner provided for that problem. This led to the score of eight. The scoring plan for problem 146 for the April 1998 examination taken by Respondent equates the score of eight as: MORE THAN MINIMUM BUT LESS THAN EXCEPTIONAL COMPETENCE Either a) Provides correct solution to problem with two math errors or incorrect dry-bulb or wet-bulb for coil entering or leaving conditions or minor total cooling load error, or b) Provides correct solution to items c and d correctly and minor math errors in items a and b of Score 6 below. Petitioner was entitled to review the results of his examination. He exercised that opportunity on September 21, 1998, through a post-examination review session. Petitioner requested and was provided re-scoring of his solution to problem 146. According to correspondence from the National Council of Examiners for Engineering and Surveying to the Florida Member Board from Patricia M. Simpson, Assistant Supervisor of scoring services, the score did not change through re-scoring. In this instance, the October 14, 1998 correspondence on re-scoring states, in relation to problem 146: Incorrect methodology used in calculating coil entering wet-bulb temperature. Incorrect coil entering wet-bulb temperature provided. No calculation provided for coil leaving temperature conditions. The coil leaving wet-bulb temperature in Respondent's proposed solution was 53.22°F wb taken from the psychrometric chart. Petitioner's solution for the coil leaving wet-bulb temperature taken from the psychrometric chart was 53.3°F wb. At hearing Respondent did not provide an expert to establish the basis for point deduction in the original score and the re-scoring of Petitioner's solution for problem 146. Moreover, Respondent did not present expert witnesses to defend the commentary, the preferred written solution in its examination materials. Consequently, Respondent's preferred solution constitutes hearsay about which no facts may be found accepting the validity of Respondent's proposed solution, as opposed to merely reporting that information.1 By contrast, Petitioner provided direct evidence concerning the solution provided for problem 146 in response to the criticisms of his solution that were unsupported by competent evidence at hearing. More importantly the criticisms were responded to at hearing by Geoffrey Spencer, P.E., a mechanical engineer licensed to practice in Florida, who was accepted as an expert in that field for purposes of the hearing. As Petitioner explained at hearing, he used the Air- Conditioning Systems Design Manual equation to arrive at the coil entering wet-bulb temperature, which he believed would provide the answer as readily as the use of the psychrometric chart. (Although the psychrometric chart had been provided to Petitioner for solving problem 146, the instructions for that problem did not prohibit the use of the equation or formula.) Petitioner in his testimony pointed out the equivalency of the process of the use of the psychrometric chart and the equation. Petitioner deemed the equation to be more accurate than the psychrometric chart. Petitioner had a concern that if the answer on the coil entering wet-bulb temperature was inaccurate, this would present difficulty in solving the rest of problem 146 because the error would be carried forward. Petitioner pointed out in his testimony that the solution for determining the coil entering wet-bulb temperature was set out in his answer. The answer that was derived by use of the formula was more time consuming but less prone to error, according the Petitioner's testimony. Petitioner points out in his testimony that the answer he derived, 65.6°F wb, is not significantly different than Respondent's proposed solution of 66.12°F wb. (The instructions concerning problem 146 did not explain what decimal point of a degree the candidate had to respond to in order to get full credit for that portion of the solution to the problem.) Petitioner in his testimony concerning his solution for the coil leaving wet-bulb temperature indicated that the calculation for arriving at that temperature was taken from the psychrometric chart and is sufficiently detailed to be understood. Further, Petitioner testified that the degree of accuracy in which the answer was given as 53.3°F wb, as opposed to Respondent's proposed solution of 53.22°F wb, is in recognition of the use of the psychrometric chart. Petitioner questions whether the proposed solution by Respondent, two decimal points, could be arrived at by the use of the psychrometric chart. In relation to the calculation of the coil entering wet-bulb temperature, Mr. Spencer testified that the formula from the Air-Conditioning Systems Design Manual or the psychrometric chart could have been used. Moreover, Mr. Spencer stated his opinion that the solution for coil entering wet-bulb temperature of 65.6°F wb by Petitioner is sufficiently close to Respondent's proposed solution of 66.12°F wb to be acceptable. Mr. Spencer expressed the opinion that Petitioner had correctly used the formula from the manual in solving the coil entering wet-bulb temperature. Mr. Spencer expressed the opinion that the psychrometric chart is an easier source for obtaining the solution than the use of the formula from the manual. In Mr. Spencer's opinion, the formula shows a more basic knowledge of the physics involved than the use of the psychrometric chart would demonstrate. In relation to the coil leaving wet-bulb temperature, Mr. Spencer expressed the opinion that Petitioner had adequately explained the manner of deriving the answer. Further, Mr. Spencer expressed the opinion that the answer derived was sufficiently accurate. The testimony of Petitioner and opinion of Mr. Spencer is unrefuted and accepted.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered which finds that Petitioner passed the Florida Board of Professional Engineers April 24, 1998, Mechanical Engineers Examination with a score of 71. DONE AND ENTERED this 22nd day of February, 1999, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS 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 February, 1999.
The Issue Is Petitioner entitled to credit for her answers to any of the questions she specifically challenged or for the four questions deleted by the Department of Environmental Protection (Department) on the February 1998 Class "B" Domestic Wastewater Operator Certification examination (wastewater examination)? Was the Department's administration or grading of Petitioner's examination arbitrary, capricious or otherwise unfair so as to entitle Petitioner to either additional points for a passing grade or an opportunity to retake the examination without cost?
Findings Of Fact Petitioner took the Class "B" wastewater operator certification examination given in February 1998 by the Department of Environmental Protection. Pilot questions are questions submitted by licensees and educators which do not yet have a "performance record" of testing validity. Petitioner alleged that pilot questions were used on her examination contrary to rules of the Department. Petitioner submitted no competent evidence to establish this allegation and it was credibly refuted. There are no pilot questions in the bank of potential questions from which the examination was composed. Petitioner conjectured that questions on her "B" level examination may have been drawn from a bank of questions for a higher level ("A") certification examination. In fact, the examination questions for the "B" level examination were selected from a bank of questions developed by the Department of Business and Professional Regulation. The Department of Business and Professional Regulation was the agency that had jurisdiction over the operator certification program before the Department of Environmental Protection assumed responsibility therefor. The selection of the examination questions was accomplished by selecting the percentage of questions from a range in a subject area already predetermined by rule and a computer program inserting the number of questions to fill that percentage. There is no way the computer program can select questions from another level of examination, for instance "A" level or "C" level. Prior to the examination, candidates for examination were advised they would have four hours to complete the examination. Examinees for the February 1998 examination in fact were provided four full hours after all preliminary matters and reading of instructions were completed. Prior to the examination, the Department provided candidates for examination with a list of subject areas that it intended to place on the examination, so that candidates could effectively prepare. All subject areas, except one, were in fact covered on the February 1998 examination. In some instances, a single question/answer satisfied two or more subject areas because of content equally applicable to each subject area. In other instances, the same subject area was covered by several questions/answers. Only one subject area that was listed in the pre-examination information did not appear on the February 1998 examination. That subject area was "energy." The reason that the subject area of "energy" was not included on the February 1998 examination was that there were no energy questions in the bank of questions which the Department of Environmental Protection had inherited from the Department of Business and Professional Regulation. The sole result of the absence of any energy question on the examination is that Petitioner and all other examinees in her group did not receive as thorough an examination in a single subject matter area as the licensure board had aspirationally intended. However, all examinees were equally treated. Originally, there were 87 questions on the February 1998 examination. After the examination was administered and a special analysis report on the grades was produced, the Department's examination review committee met with the examination consultants. The committee recommended to the Department, and the Department accepted the recommendation, that four questions should be deleted because they were misleading or for some other reason failed to adequately and reliably measure the examinees' ability to practice at a Class "B" license level. Removal of the four questions only lowered the mean score by one point, thereby creating a slightly easier examination while simultaneously slightly increasing its reliability. Examinees were instructed to select the best multiple choice answer for each question. Each of the questions was equally weighted. The Department interpreted Rule 61E12-41.005(5), Florida Administrative Code, as requiring that examinees achieve at least a 65% rounded score on the examination in order to pass the examination. In order to determine an examinee's success on the examination, the Department multiplied the initial 87 questions by 65% (.65) and so determined that an examinee would need at least 54 correct questions/answers to earn a passing grade. In determining a candidate's grade on an operator licensure examination, the Department determines the number of correct answers needed to reach the minimum rounded score of 65%. A special analysis report also indicates how many correct answers equal each percentage grade. If this number is not a whole number, the Department uses the rounding method to reach a whole number, based on 0.5 +/- percentage. By the foregoing grading interpretation, before deletion of the four questions, Petitioner's rounded score was 60%, with 52 correct answers. Petitioner's grade improved with the deletion of the four questions, because she had incorrectly answered each of the four questions which were later deleted. After the four questions were deleted, the same grading system resulted in a rounded score of 63% with 52 correct answers. By letter dated April 6, 1998, the Department notified Petitioner that she had failed the examination because she did not get a rounded 65% score based on 52 correct answers. After receiving the letter, Petitioner requested a review of the examination. Petitioner was allowed to review the questions and answers she had missed. Petitioner was also allowed to write comments on the question sheets which she reviewed. Petitioner's comments were submitted to the examination review committee of the Department for the committee's review. Upon review of Petitioner's comments and the examination, the committee determined that the questions and required answers were accurate and fair. It recommended no change to Petitioner's score. Petitioner was notified that no change would be made to her score. Petitioner then timely requested an administrative hearing. Although Petitioner's two letters/petitions (see Preliminary Statement supra.) initially raised issues concerning a number of examination questions, Petitioner only presented evidence concerning the contents of question 78 at formal hearing. Question 78 tested examinees' knowledge of appropriate emergency response activity and notification concerning the release of chlorine gas. Petitioner asserted that question 78 was vague, ambiguous, and misleading because it did not specifically state that a "reportable quantity" was to be considered in choosing the best answer from among multiple choice options of reporting a chlorine spill to one entity, two entities, three entities or no entities. For this reason, Petitioner alleged that her answer could have been an answer which was equally correct ("multi- keyed") with the answer selected as correct by the Department. Mr. Dawkins, who was accepted as an expert in emergency response and community right-to-know, testified that the question was not misleading. Mr. Dawkins is not associated with the Respondent Department, any of its committees, or the examination preparation process. He oversees actual reportage of dangerous chemical spills for the Department of Community Affairs. Although Mr. Dawkins indicated that he, personally, would not have written question 78 quite the way it was posed on the examination, he still felt that since it addressed reporting requirements, examinees should have assumed that a reportable quantity was involved and answered accordingly. All three of Respondent's experts testified that the answer chosen as correct by the Department was the most accurate of the multiple choice answers provided on the examination and that the subject matter and correct answer should have been understood by a qualified operator of a wastewater treatment plant at the "B" licensure level. The Department has under contract an expert in examination and psychometrics. The Evaluation Services Instructional Support Center Learning Systems Institute of Florida State University provides to the Department as part of the examination grading, a special analysis report for each examination. This report contains statistics about the scores, difficulty of each question, and how the spread of answers by the examinees compared to the four quadrants of grade results. The February 1998 examination was an extremely difficult examination, as evidenced by the fact that more examinees failed than passed. However, it was demonstrated that 77% of examinees who took the examination got question 78 correct. Question 78 also discriminated between high and low scoring examinees. The item analysis performed before the other four questions were deleted did not show that question 78 was misleading in any way, but did show that each of the four questions deleted were misleading or otherwise flawed. One of the proctors for the February 1998 examination personally observed that at the time the examination ended, only two examinees remained in the examination room and that neither of these examinees was Petitioner. It can be inferred therefrom that Petitioner had finished the examination, had time to spare, and had left the room. Finally, the inclusion of examination questions which were later deleted is not a concern as to the time allotted. This type of examination is a "power exam" and speed is not a factor.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Environmental Protection enter a Final Order denying the Petitioner's challenge to the February 1998 Class "B" wastewater operator certification examination and assigning her a final percentage grade of 63% thereon. DONE AND ENTERED this 16th day of November, 1998, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 16th day of November, 1998. COPIES FURNISHED: Gerrit Vanthul, Qualified Representative 5279 Southeast 39th Street Trenton, Florida 32693 Cynthia Christen, Esquire Department of Environmental Protection 2600 Blairstone Road Mail Station 35 Tallahassee, Florida 32399-3000 Kathy Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 F. Perry Odom, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
Findings Of Fact Petitioner began employment with Respondent in November 1983. He was assigned to the Water and Sewer Department as a laborer. In 1986, Petitioner was transferred by the Respondent to the Water and Sewer Department water meter shop to be a water meter repairman. Petitioner continued his employment in that section until the spring of 1993. At that time, Petitioner accepted status under the Respondent's Disability Income Replacement policy. This arrangement is for an employee who is absent due to disability for more than 60 days. He then becomes eligible to receive payment of 60 percent of the employee's regular earnings. From the years 1986 into 1990, Petitioner enjoyed good health. During that period his employee work evaluations ranged from satisfactory to above satisfactory. In 1990, Petitioner developed psoriasis. In the beginning, the condition was controlled through medical treatment. However, in 1991, Petitioner was diagnosed with bladder cancer. As a result, while being treated for the bladder cancer in 1991 and 1992, to include two surgeries, Petitioner was unable to receive medical treatment for his psoriasis. Consequently the psoriasis became more severe. There was a change in supervisory personnel on April 4, 1991, which affected Petitioner's employment status together with that of other employees within the Water and Sewer Department. The change came about when Richard Davis, who headed the Water and Sewer Department was replaced by Henry Hicks. Respondent had found it necessary to replace Davis, because in Respondent's view Davis was not satisfactorily addressing the personnel issues within the Water and Sewer Department. When hired, one of the issues which Hicks felt he needed to address was a morale problem caused by employee perceptions that the Department of Water and Sewer employee rules were not being enforced in a consistent manner. Hicks was of the opinion that this perception existed, in part, because supervisors maintained a casual approach to employee counseling and discipline. Hicks, in his tenure, reminded the supervisors to formalize their procedures in dealing with employee counseling and disciplining. He required the supervisor provide documentation of any disciplinary action whether verbally given or by a written reprimand. This change in direction tended to increase the number of documented incidences of imposition of employee discipline within the Water and Sewer Department. The first employee evaluation which Petitioner received after Hicks' assumption of his position of director of the Water and Sewer Department was in 1991. The 1991 evaluation which Petitioner was given contained positive and negative remarks about Petitioner's work performance. In the spring of 1991, the Water and Sewer Department held a picnic, an activity in which the employees were encouraged to participate. As in prior years the Petitioner volunteered to be a member of the food committee for the picnic and was appointed to that committee. Members of the food committee would serve food at the picnic. At that time, the Petitioner's psoriasis was such that he was noticeably peeling and flaking. Howard Johnson, a supervisor with Respondent approached Hicks and told Hicks that several employees had stated that they, the employees, would not go to the picnic if Petitioner served food because they were afraid that Petitioner's skin would flake into the food. Having been apprised of this situation, upon a date prior to the picnic, Hicks met with Petitioner and told Petitioner what had been reported to Hicks and asked Petitioner to serve the needs of the picnic activity in some other manner than food service. Specifically, the Petitioner was offered the opportunity to help "set up" the picnic area. Petitioner did not accept the alternative offer to assist in the outing. Instead, Petitioner was offended and felt that he was unreasonably singled out due to his psoriasis. Nonetheless, the reaction by other employees to having Petitioner serve food and the response by Hicks to offer an alternative opportunity to assist in the activity did not constitute harassment or unreasonable conduct toward Petitioner. In association with the picnic for the spring of 1991, Bobby Thigpen, a supervisor with Respondent, made a comment to Petitioner about Petitioner's psoriasis and Petitioner's participation on the food committee at the picnic. Although Petitioner was mindful of Thigpen's candor about the subject, Thigpen's remarks contributed to Petitioner's hurt feelings concerning other employees not wishing Petitioner to serve food at the picnic. The remarks by Thigpen were not designed to harass Petitioner based upon Petitioner's physical condition. In addition, Petitioner did not report Thigpen's remarks to his supervisor pursuant to Respondent's "No times relevant to the inquiry, prohibited harassment on the basis of handicap status as well as other protected categories. The policy instructed the employee who believed that he had been harassed to bring the matter to the supervisor or to the Human Resource Department within the organization if the employee did not feel that he could discuss the matter with his supervisor. Respondent's employees are required to attend an annual meeting to review this policy. Petitioner did not complain to the Human Resource Department that he had been harassed by Thigpen through Thigpen's remarks regarding Petitioner's service on the food committee. No other competent proof was offered to the effect that Respondent's employees had made derogatory comments about Petitioner's physical disabilities. Because Petitioner's psoriasis was in a more severe condition, Petitioner would leave flakes of skin on chairs in the Water and Sewer Department break-room. When the Petitioner's co residue they would switch chairs rather than sit in the chair on which Petitioner had left flakes of skin. Although Petitioner found out that the other employees were switching chairs due to the flakes of Petitioner's skin being found on the initial chair, there is no competent proof that any employee ever commented to the Petitioner that the employee would be opposed to the Petitioner eating in the break-room due to his physical condition. Petitioner, together with other employees who were supervised by Dan Miller, had been harassed by Miller at times relevant to the inquiry. In Petitioner's instance, Miller's harassment was not directed to Petitioner's physical disabilities. Some of the remarks made by Miller to Petitioner were that Petitioner was short and fat and further derogatory comments about Petitioner's haircut and clothes. Miller had also called the Petitioner dumb or stupid because Petitioner asked Miller to repeat instructions over the radio that was used for communicating between the supervisor and his respective employees. Notwithstanding Petitioner's contention that he had told Miller that he was having trouble hearing because of psoriasis that had spread to Petitioner's ears, Miller denies that Petitioner had told Miller that psoriasis was affecting Petitioner's hearing, and Miller's testimony is credited. On the contrary, without knowledge of any physical disability concerning hearing which Petitioner had, and without regard for the reaction any other employees which Miller supervised might have, Miller made insulting comments to employees which he supervised when talking to them on the radio. Employees other than Petitioner to whom the insulting comments were directed had no known physical disabilities. James Scarberry, a co-employee who worked for Miller, overheard Miller yell at Petitioner on occasion having to do with Petitioner's job performance, not Petitioner's physical disability related to hearing. Petitioner asked Miller and a co-worker not to smoke in his presence because he had recently had bladder cancer surgery. Petitioner contends that this request was met with laughter and jokes. Miller testified that the request was not met with jokes or laughter. Instead, Miller recalls, and his testimony is credited, that Petitioner complained that Al Nichols, a co-worker, had smoked excessively in Petitioner's presence. The subject of Nichols' and Miller's smoking in Petitioner's presence was discussed among Miller, Nichols and Respondent, and it was agreed that Nichols and Miller would try not to smoke excessively in Petitioner's presence. No medical evidence was presented which tended to identify the necessity for Petitioner to be afforded a smoke environment due to his medical condition or that Petitioner had ever made requests other than that directed to Miller and Nichols regarding not smoking in his presence at work. Petitioner had made requests that he be provided light duty because of the problems he experienced with his knees due to psoriasis. These requests were directed to Miller, Petitioner's immediate supervisor. The requests were not always granted. When Petitioner was turned down for light duty it was based upon the fact that light duty was generally not available in the Water and Sewer Department for any employee. Moreover, at that time, employees in Petitioner's work assignment usually worked alone and it would adversely affect the production of the unit if two repairmen were dispatched to do a job which would ordinarily take only one repairman to complete. Petitioner presented no proof concerning denial of light duty at a time when a physician may have specifically recommended light duty for Petitioner. Concerning discipline directed to the Petitioner, on March 18, 1982, Petitioner stopped at a job site to which he had not been assigned. There he engaged David Lipps, an employee of Respondent, in a conversation. Lipps was a supervisor at the site and the conversation had to do with the meal policy which had been applied at the site. Eventually the conversation became an argument, at which point Lipps told Petitioner that he did not belong at the job site and asked him to leave. Lipps then reported the incident to his supervisor, Rodney Thompson and the matter eventually came to the attention of Hicks. Hicks discussed the matter with the Petitioner and Lipps and concluded that Petitioner had no business purpose for being at the Lipps' job site and that Petitioner was responsible for causing the argument with Lipps. Petitioner was issued a written warning on March 26, 1992. The disciplinary reprimand was not related to Petitioner's physical disabilities. On May 18, 1992, Petitioner received a written reprimand. The reprimand was based upon the Petitioner's conduct while on weekend standby duty. This assignment was in keeping with the periodic requirement to serve on weekend standby. On May 16, 1992, Petitioner was on a standby status with Lipps. Lipps was referred to as the "A" worker and Petitioner was the "B" worker. The "A" worker was in charge of the work team. Petitioner arrived at the first job site 34 minutes before Lipps. When Lipps arrived, Petitioner complained that Lipps was an hour late. Petitioner then told Lipps that he had somewhere else to go that day. Lipps and Petitioner went to a second job and by that time Lipps told Petitioner that he was tired of Petitioner's complaining about having to work that day and concluded that Lipps did not have Petitioner's full cooperation. As a result, Lipps determined to leave the completion of the second job until the following Monday. Lipps reported the incident to his supervisor, Rodney Thompson. Petitioner had been previously counseled about his attitude concerning standby duty. Hicks reviewed the facts surrounding Lipps' complaint and decided to issue a written reprimand to Petitioner for making negative verbal remarks about Petitioner's duties and for failing to cooperate with his supervisor on standby duty. The disciplinary action was not for purposes of discriminating against Petitioner because of Petitioner's physical disabilities. Moreover, Hicks had reprimanded two other employees, Ed Swift and Bob Buckley for making negative verbal comments about job duties. Hicks did not know these other individuals to be suffering from any form of physical disability. In June of 1992, Petitioner applied for and was granted a leave of absence for an unspecified period. By June 2, 1992, Petitioner knew that he would need to go on extended leave beginning June 8, 1992. He failed to inform any of his supervisors that he was going on this medical leave. He did not show up for work on June 8, 1992. Hicks inquired of Petitioner on June 8, 1992, about not telling his supervisor that he was going to be on medical leave. Petitioner responded to the inquiry by indicating that he had told Scarberry, Petitioner's co-worker, of his intention to go on medical leave and that he had told a city clinic nurse that he was going on leave of absence. Hicks pointed out, correctly, that telling the nurse and Scarberry of Petitioner's intentions to take medical leave did not relieve Petitioner of the duty to directly inform a supervisor of that intention. Moreover, Scarberry had told the Petitioner that he, Scarberry, would not be at work the first day of Petitioner's medical leave, making it questionable that Scarberry would have advised a supervisor that Petitioner was hoping to be absent from work that day. Scarberry made Hicks aware that Scarberry had pointed out to Petitioner that he would not be at work on June 8, 1992. Petitioner's assertion that he wrote a note to his immediate supervisor, Miller, regarding the plan to be out on June 8, 1992, if true, is of no utility because the note was not given directly to Miller and was never indirectly received by Miller. Miller had not been at work June 5, 1992, the friday before Petitioner was missing from his job duty on June 8, 1992. Petitioner knew that Miller was not at work on June 5, 1992. As a consequence of not informing a supervisor that he was going to be on extended medical leave, Petitioner was disciplined. The action by Respondent on which Petitioner was given a written reprimand for failure to inform a supervisor that Petitioner was going to take extended medical leave did not constitute discrimination against Petitioner based upon his physical disabilities. Petitioner was allowed to take the extended medical leave. Noel Werner, a secretary in the Water and Sewer Department had also been reprimanded by Hicks for failing to follow proper procedures for obtaining authorization to take medical leave. Hicks is unaware of any physical disability that Ms. Werner may have. When Petitioner took leave in June of 1992, he believed that he would be eligible for Disability Income Replacement. However, in August 1992, Petitioner was informed that the Respondent's Risk Management Department had determined that he was ineligible because he was under the care of a licensed health counselor as opposed to an M.D. or a Ph.D. Carol Ingham, Respondent's Human Resource Director, learned of this circumstance and contacted the Assistant City Manager, Dick Lewis, and requested that Petitioner be granted an exception to the policy of not being eligible for Disability Income Replacement when using a licensed health counselor. As a result, Petitioner's request was reevaluated and he was ruled eligible for Disability Income Replacement through the policy pertaining to that status for the period August 4 through 30, 1992. Concerning his physical condition, in the spring of 1992, Petitioner was diagnosed with osteoarthritis in his knees. This meant he was disabled to do any persistent bending or kneeling, which was a requirement of his employment in the Water and Sewer Department. His condition also disabled him from doing his assigned work because his work as a water meter repairman involved walking distances of a 100 feet or more on a persistent basis and standing all day. Concerning the medical leave of absence which Petitioner took in the summer of 1992, this subject was discussed by Ingham in conversation with the city clinic nurse, Holly McLaughlin. They talked about the stress which Petitioner seemed to be experiencing and the failure to follow the policy of informing his supervisor of his intention to take medical leave. On June 15, 1992, Ms. Ingham met with Petitioner and his wife to discuss Petitioner's stress. At that time, Petitioner reported to Ms. Ingham that Petitioner's supervisor Miller had treated him badly and that Miller had also treated other employees badly. Petitioner told Ingham that Miller had called Petitioner stupid and had been abusive in conversation over the radio. No claim was made by Petitioner that Miller had made comments directed to Petitioner's physical disabilities. As a follow Ingham discussed Petitioner's remarks about Miller's conduct with a number of the Petitioner's co-workers. Ingham decided that Miller had, in fact, yelled and cursed at a number of employees he supervised, to include Petitioner. No other employee reported to Ingham that Miller had made derogatory comments in their presence concerning Petitioner's physical disabilities. Based upon Ingham's findings, Hicks determined to discipline Miller for his conduct directed toward employees whom Miller supervised. Miller received a written reprimand and was given the option of being demoted or seeking counseling through an employee assistance program. Miller opted to go to the employee assistance program. Moreover, Miller was told that if conduct toward subordinates continued that he would be subject to more severe discipline to include discharge. Miller's treatment of the employees he supervises has improved since the imposition of discipline. Petitioner returned to work in August 1992, following his leave of absence for medical purposes. At that time, he was issued a service truck which another employee had been using. Petitioner felt that he should have been issued a new truck which the Water and Sewer Department operated. The truck that Petitioner had been issued was dirty and smelly. Miller told Petitioner that the newer truck was assigned to an employee who needed the larger truck because that employee would be performing heavier work than Petitioner would be called upon to perform. Miller offered to have the truck which Petitioner had been issued cleaned up or detailed. Petitioner declined that offer. Petitioner complained about the truck that he had been assigned to a co-worker, Fred Sauls. He told Sauls that he was going to take the truck he was issued and drive it to city hall to show Ingham, the Human Resource Director. In fact, Petitioner reported the incident to Ms. Ingham. The Petitioner received a letter of reprimand on September 4, 1992, for complaining to a co-worker and Ms. Ingham about an everyday work related problem rather than following the chain of command. Prior to receiving that written reprimand, Petitioner had been specifically counseled by Hicks concerning handling everyday work related problems through Petitioner's supervisor. Those specific instructions on everyday work related problems were not countermanded by the general opportunity which Hicks had described for employees to go outside the chain of command when they did not feel that they would get satisfaction from an immediate supervisor, and the open door opportunity to consult with the Human Resource Director. In this instance, the response from Miller was adequate to meet Petitioner's needs in confronting an everyday work related problem and Petitioner had no reason to complain to Sauls or to complain to Ingham. The written reprimand given to Petitioner was not designed to discriminate against Petitioner based upon his physical disabilities. Hicks and Ingham became aware of the Petitioner's inability to perform his assigned job duties due to his physical disabilities and they looked for other duties that the Respondent might be able to perform in view of his physical disabilities. The only positions that were found for which Petitioner was otherwise qualified and physically able to perform were part-time positions that did not offer medical benefits. Upon further reflection, Ingham and Hicks offered to combine these two positions in the Respondent's Recreation Department into a single job which would allow Petitioner to continue working and to receive benefits. The combined position was at a lesser pay than the present position which he held. Petitioner decided that he would prefer to be placed in the status of Disability Income Replacement in lieu of the combined jobs. In April 1993, Petitioner accepted the status of Disability Income Replacement and has not returned to work.
Recommendation Based upon the findings of fact and conclusions of law reached, it is, RECOMMENDED: That a final order be entered by the Florida Commission on Human Relations which dismisses the Petitioner's claims. DONE and ENTERED this 13th day of June, 1994, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of June, 1994. APPENDIX The following discussion is given concerning the Proposed Findings of Fact of the parties: Petitioner's Facts: Paragraphs 1 through 6 are subordinate to facts found. Paragraphs 7 through 14 are contrary to facts found. Respondent's Facts: Paragraphs 1 through 26 are subordinate to facts found. COPIES FURNISHED: William A. Ramputi, Esquire Scott, Gleason & Pope, P.A. 409 Southeast Fourteenth Street Ocala, Florida 34471 David H. Spalter, Esquire Fisher & Phillips 2310 One Financial Plaza Fort Lauderdale, Florida 33394 Sharon Moultry, Clerk Human Relations Commission Building F Suite 240 325 John Knox Road Tallahassee FL 32303-4149 Dana Baird, General Counsel Human Relations Commission Building F Suite 240 325 John Knox Road Tallahassee FL 32303-4149
