The Issue Whether Respondent violated Sections 456.072(1)(k) and 464.204(1)(b), Florida Statutes (2001), and, if so, what penalty should be imposed.
Findings Of Fact Effective July 1, 1997, Petitioner is the state agency charged with regulating the responsibility for regulation and discipline of the nursing practice within the State of Florida. Respondent is a certified nursing assistant (CNA) holding Florida nursing certificate number CX 0993266675590. In December 2001, Respondent was employed as a CNA at Beverly Health Care, now known as Seacrest Health Care of Largo. Patient F.K. was a dementia patient in her advanced years and was not coherent or responsive. She was a total care patient, which required staff to perform all activities of daily living for her, such as mouth care, showers, feeding, dressing, bathing, and getting her into and out of bed. Patient F.K. did not speak, but did have a tendency to hum loudly and continuously. On December 20, 2001, Respondent was in Patient F.K.'s room following Patient F.K.'s return from lunch. Respondent called another CNA, Sheleta Cunningham-Talley, into Patient F.K.'s room, and Respondent engaged her in conversation. At that time, Patient F.K. was humming, as she often did. Respondent said to Talley, "watch how I shut this bitch up" and then proceeded to strike Patient F.K. on the face and throat. Patient F.K.'s face and neck turned red, and she became visibly upset after being struck. Beverly Health Care has a policy that residents have a right not to be physically abused. CNAs are under a legal or statutory duty not to hit or abuse patients. Striking a patient in the face and throat is a violation of that duty to not physically abuse a patient. Agnes Kelly is a registered nurse who was employed at Beverly Health Care during Respondent's employment there. Kelly has practiced as a registered nurse since 1994. She was a weekend supervisor at Beverly Health Care and supervised approximately 25 nursing employees which included a number of CNAs. Kelly has supervised nursing staff and CNAs for approximately nine years, and, as such, is familiar with the duties and responsibilities of CNAs. It is her opinion that Respondent violated her duty not to physically abuse a patient. Based on the foregoing, the evidence is clear and convincing that Respondent violated Sections 456.072(1)(k) and 464.204(1)(b), Florida Statutes (2001), by intentionally violating the statutory and legal obligation of CNAs to not physically abuse or hit a patient.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner issue a final order finding Respondent guilty of violating Sections 456.072(1)(k) and 464.204(1)(b), Florida Statutes (2001), and revoking Respondent's certification and requiring Respondent to pay the costs of investigation and prosecution of this matter. DONE AND ENTERED this 22nd day of July, 2003, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 July, 2003. COPIES FURNISHED: Kim M. Kluck, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Pearla M. Mixon 4365 Tuna Drive, Southeast St. Petersburg, Florida 33705 Dan Coble, R.N., Ph.D., C.N.A.A. C., B.C. Executive Director Board of Nursing Department of Health 4052 Bald Cypress Way, Bin C02 Tallahassee, Florida 32399-3252 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
Conclusions THIS CAUSE comes before the AGENCY FOR HEALTH CARE ADMINISTRATION (the "Agency") concerning the Administrative Complaints for LIFE CARE CENTER OF SARASOTA, CON 7904, LIFE CARE CENTER OF ORANGE PARK, CON 7737, LIFE CARE CENTER OF NEW PORT RICHEY, CON 8813, LIFE CARE CENTER OF PORT ST. LUCIE, CON 8975, LIFE CARE CENTER OF OCALA, CON 7923 AND LIFE CARE CENTER OF MELBOURNE, CON 3828 collectively known as Life Care Centers of America (hereinafter "Life Care") which the Agency filed the Administrative Complaints for Life Care's failure to comply with Medicaid conditions placed on the CONs. Composite Exhibit 1. The parties have since entered into a Settlement Agreement. Exhibit 2. It is ORDERED that: The findings of fact and conclusions of law set forth in the Administrative Complaint are adopted and incorporated by reference into this Final Order. The Settlement Agreement is attached hereto and made a part hereof. The parties are directed to comply with the terms of the Settlement Agreement upon payment of any fines. The Respondent shall pay the Agency a total of $5,780.00 within 30 days of the date of this Final Order. The total amount is divided among the cases as such: Case Number 2008013528 - $323.00 Case Number 2008013522 - $663.00 Case Number 2009000372 - $1,663.00 Case Number 2009000369 - $1,530.00 Case Number 2009000371 - $1,365.00 Case Number 2008013532 - $236.00 A check made payable to the "Agency for Health Care Administration" and containing the AHCA ten-digit case numbers should be sent to: Office of Finance and Accounting Revenue Management Unit Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 14 Tallahassee, Florida 32308 The above-styled cases are hereby closed. DONE AND ORDERED this Z--1 day of 011, in Tallahassee, Florida. Elizab Agen tion
Other Judicial Opinions A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW, WHICH SHALL BE INSTITUTED BY FILING THE ORIGINAL NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A COPY ALONG WITH THE FILING FEE PRESCRIBED BY LAW WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF THE RENDITION OF THE ORDER TO BE REVIEWED. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been furnished by U.S. or interoffice mail to the persons named below on this '/,:r: day of RICHARD J. SHOOP, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308 (850) 412-3630 COPIES FURNISHED TO: Charles A. Stampelos Administrative Law Judge Division of Administrative Hearings (Electronic Mail) Jay Adams, Esquire Broad and Cassel 215 South Monroe Street, Suite 400 Post Office Drawer 11300 Tallahassee, Florida 32302 Attorney for Life Care Centers of America (U. S. Mail) James H. Harris, Esquire Office of the General Counsel Agency for Health Care Administration (Interoffice Mail) Richard Joseph Saliba, Esquire Office of the General Counsel Agency for Health Care Administration (Interoffice Mail) Jan Mills Facilities Intake Unit Agency for Health Care Administration (Interoffice Mail) Office of Finance and Accounting Revenue Management Unit Agency for Health Care Administration (Interoffice Mail) MAR-17-2009 10:39 AGENCY HEALTH CARE ADMIN Mar 17 2009 10=25 850 921 0158 P.08 STATE OF PLORXDA
Findings Of Fact On July 31, 1987, DOA mailed a Request for Proposal, (RFP), to various Health Maintenance Organizations, (HMOs), soliciting proposals for the providing of HMO services in the Orlando service area. Petitioner, Cigna, and the various Intervenors herein, submitted proposals which were opened by DOA on August 28, 1987, with a contemplated date of award of September 14, 1987 and an effective date of contract on January 1, 1988. Section 2 of the RFP defined the general purposes of the procurement as being to meet benefit objectives of DOA and to provide high quality benefits and services to state employees. Specifically, the objectives of the RFP were: A proactive approach to cost containment, including an emphasis on aggressive claims management, utilization review, and superior statistical reporting. Quality medical care which encourages health promotion, disease prevention, early diagnosis and treatment. Stability in the financial structure of offered health plans. Professional, high quality service in all administrative areas including claims processing, enrollment, membership services, grievances, and communications. Competitive premium rates which take into account the demographics and, if appropriate, the claims experience of state employees. Other stated objectives included: Have each county or contiguous group of counties be considered one service area. Award no more than two contracts per service area; however, the awards will be based on the HMO's ability to respond to the needs of employees and on accessibility by employees. Have reciprocal agreements between locations, if an HMO has multiple service areas. Enter into a two year, non-experience rates contract. A provision will be included tying renewal action at each of the two renewals to the consumer price index, (CPI), for medical care services. In order to be considered as a "qualified" proposer, an organization had to be licensed by the Department of Insurance pursuant to Part II, Chapter 641, Florida Statutes. Section IX of the RFP listed five major criteria for evaluation of the proposals. They were: Premium Cost Extensiveness of service area - by county and/or contiguous counties. Plan Benefits as follows: Covered services Limitations and exclusions Co-payments, deductibles, and coinsurance features Range of providers including specialists and numbers of hospitals D. Out of service area coverage F. Grievance procedures Accessibility as follows: Reciprocal agreements Provider locations Number of primary care physicians and specialists, in relation to membership Completeness of proposals The first four of the above objectives were called for by the Legislative action providing for these procurements to be effective January 1, 1988. The fifth, completeness of proposals, was not identified by the Legislature but was added by DOA. The Department reviewed and evaluated all the proposals submitted by Petitioner and the various Intervenors. Each proposer was evaluated by three individual evaluators. Two separate sets of evaluations were performed; the second coming upon the direction of the Secretary who, after the first evaluation and recommendation of award, concluded the standards for evaluation had been too subjective and directed a second evaluation utilizing more objective standards. During this second evaluation process, after the actual evaluations had been done but before the recommendation was forwarded to the Secretary, several computer treatments of the raw scores were accomplished by Mr. Nye because of additional unidentified factors brought to his attention. The final computer run identified that Central Florida Physicians, not a party to this action, received the highest point total followed by Health Options, Pru-Care, and Petitioner, Cigna. Mr. Nye, who had designed and supervised the evaluation process, recommended to the Secretary that Central Florida Physicians, Health Options, and Pru-Care receive the award even though the guidelines called for only two recommendees. Central Florida Physicians was recognized to be in financial difficulties though it received the highest rating, and in order to provide two viable candidates in the event that provider should be disqualified, Health Options and Pru-Care were added. Central Florida Physicians was, in fact, subsequently disqualified due to financial insolvency. This left Health Options and Pru-Care as the two providers with the highest evaluations and the Secretary made the award to them. At the final count, Health Options received a point total of 64.635; Pru-Care, 57.415; and Cigna, 56.83, or a difference of .585 between Pru-Care and Cigna. According to Mr. Black, an administrator with the Department of Insurance and responsible for the licensing of HMOs and other health care facilities, as of January 12, 1988, Pru- Care was not licensed in Volusia or Lake Counties and department records show that Pru-Care has never been or requested to be licensed in those counties. Mr. Beckerink, the Director of Planning for Cigna of Florida, who oversaw Cigna's proposal for the Orlando area and who reviewed DOA's evaluation of the various proposals submitted, carefully examined the evaluation forms for both Cigna and Pru- Care and concentrated on scores relating to costs, benefits, accessibility, service area, and completeness. He noted that Pru-Care received 10 points for proposing service in Orange, Seminole, Osceola, Lake, and Volusia Counties though it is not licensed in the latter two, whereas Cigna received only 4 points for Orange and Seminole Counties. Cigna is licensed in all five counties and has hospitals and physicians in Seminole, Osceola, and Orange Counties. He contends Pru-Care received credit by the evaluators for five counties when it is licensed only in three, an unearned award of 4 points, and Cigna was awarded credit for only two counties when it is licensed in five, an improper denial of 6 points. According to Mr. Nye, the award to Pru-Care was based on its representation it would provide service in five counties. The Department of Insurance could not tell him, at the time, in which counties Pru-Care was licensed. As a result, he took the proposal, which indicated the five counties, at face value. Credit was given only for full counties to be served and Cigna's proposal indicated it would deliver service to two full counties and to only portions of three counties. The evidence indicates that Pru-Care's facilities are primarily in Orange and Seminole Counties with some service offered in the extreme northern portion of Osceola County, too far away for those individuals living in the southern portion of that county reasonably to take advantage of it. Mr. Nye indicates that driving time, which would be the problem here, is not a consideration in assessing accessibility, but merely a factor in quality of service. The department is not concerned with whether it is convenient for the employee to get to the service but merely whether the service will be offered to anyone residing in the county. For this reason, Pru-Care was awarded credit for Osceola county since it proposed to enroll any eligible employee living in the county whether service was convenient to that party or not, whereas Cigna, which limited it's enrollment in certain counties to those personnel living in only a part of the county, was not given any credit for those partially served counties. Mr. Nye admits that had he known Pru-Care was not fully licensed, he would have deferred to legal counsel, but would most likely not award points if a provider is not licensed in a county for which it proposes service. Mr. Breckerink identified additional areas in the evaluation wherein he believes errors were made, the correction of which would result in an adjustment of the award of points. For example, in evaluating plan benefits, the evaluator gave Pru- Care 20 points when only 10 points are available for award without a demonstration of additional services. For emergency room availability, Cigna was awarded 5 points when it should have received 10. In the area of co- payments, Cigna was awarded points and should have received 23. Concerning range of providers, Cigna's proposal lists seven hospitals yet the evaluation form only reflects six, resulting in a shortage of 10 points. As to turnaround time, Cigna indicated it would accomplish payment in 60 days whereas Pru-Care indicated it would in "an average" of two weeks. As a result, Mr. Breckerink, who points out Cigna's actual time is 30 days and it therefore should have been given 30 points, contends there is no opportunity for a valid comparison here since Pru-Care's answer is not responsive to the RFP's call for" an "expected" time. His point is well taken. With regard to accessibility, Mr. Breckerink states that Cigna got only 20 points for its two allowed counties but should have received 30 points since it has hospitals in three counties in the service area. DOA's rationale on this point is identical to that on the issue of full counties served. He also alleges that Cigna was shortchanged by at least 2 points on the number of counties in which specialty providers are represented and by at least 1 point on the number of providers. Mr. Nye admits Pru-Care should have received 5 points instead of 10 for benefits. This would reduce its' raw score in this area from 258 to 253 points. Nye contends, however, that the points awarded Pru-Care for its' turnaround time were correct. He does not consider the question to be a bad one since it was asked equally of all providers and each responded as it saw fit realizing that its response might become a part of a contractual obligation. This reasoning is specious at best and does not address the real question of the fairness and appropriateness of the question asked. Further, Mr. Nye also admitted that under certain circumstances, if Pru-Care were to lose credit for those two counties in which it was not shown to be licensed, the change could result in a difference sufficient to reverse the relative standings of Pru-Care and Cigna. Mr. Breckerink alleges, and Mr. Nye admits that multiple computer runs were made utilizing the raw scores developed by the evaluators before the recommendation as to award was forwarded to the Secretary. On the first run for the second evaluation, Cigna was in second place with a point total of 71.1 and Pru-Care was third with 65.86 points. On the second run, which Nye contends was done to make the computer run consistent with what had been said at the pre-bid conference and in the RFP, Cigna dropped from second place to third with 58. 2 points and Pru-Care went from third to fourth with 57.195 points. In the third run, which ultimately formed the basis for the award, the positions of Cigna and Pru-Care reversed with Cigna dropping to 56.83 points and Pru-Care rising to 57.415. Central Florida Physicians remained in first and Health Options in second. When Central Florida Physicians dropped out due to insolvency, Health Options became number one and the other two each went up one place in the standings without changing relative positions. According to Mr. Breckerink when the mistakes were identified and changes made in the raw scores, Cigna got a total of 23 more points but Pru-Care still got 16 more points than it should have. He contends that if the mistakes were accurately corrected, if Cigna were to get all the points it should and Pru- Care lose all it should not legitimately have, Cigna would come out higher in the overall ranking than Pru-Care. However, he admits there are factors involved about which he does not know which may affect the standings. What is clear is that while Mr. Breckerink could not clearly follow the evaluation procedure, neither can others charged with evaluating it. What is more, notwithstanding the direction given in the objectives of the procurement that only two providers be awarded contracts, the department continuously has been unable to abide by this guideline. In its September 11, 1987 recommendation after the first evaluation sequence, Mr. Nye recommended, for the Orlando service area, awards to Central Florida Physicians, Cigna, and Pru-Care for a part of the service area and an additional award to Health Options and Florida Health Care for other counties in the service area. When the Secretary directed the objective second evaluation, no change was made to the number of providers to be recommended (two), but again, on October 6, 1987, Mr. Nye recommended three providers, Central Florida Physicians, Health Options, and Cigna. No evidence was presented as to why this recommendation was not implemented, but it is seen that on October 26, 1987, Mr. Nye submitted his third set of recommendations to the Secretary, this time recommending only Central Florida Physicians, and Health Options. Being still unable to finalize the process, on October 30, 1987, Mr. Nye submitted his fourth set of recommendations to the Secretary recommending, for the most part, three providers, but specifically recommending Pru-Care for award in Lake and Volusia Counties, where it was arguably not even licensed. No justification or explanation for this vacillation was forthcoming from the Department and the exercise appears to have been clearly capricious.
Recommendation In view of the foregoing, it is, therefore: RECOMMENDED that the Department of Administration issue a Final Order rejecting all proposals submitted for the Orlando service area and readvertise for new proposals if deemed appropriate. RECOMMENDED this 19th day of April, 1988 at Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of April, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5525BID The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. By Petitioner Cigna: 1 - 5. Accepted and incorporated herein. First sentence not a Finding of Fact. Second sentence accepted except for conclusion as to legal license status of Pru-Care. Rejected as a restatement of testimony and not a Finding of Fact. First three sentences rejected as restatements of testimony. Balance accepted with the assumption that "those counties" indicates Lake and Volusia counties. First and second sentences rejected as restatements of testimony. Third sentence accepted. Accepted and incorporated herein. First and second sentences rejected as restatements of testimony. Third sentence accepted as a possibility and, not a fact. First sentence accepted and incorporated herein. Second sentence rejected. Accepted. Accepted. Accepted and incorporated herein. Accepted except for use of word "awarded" in last sentence. Award is a function of the Secretary. A better word would be "recommended". Accepted. Reject Accepted. Rejected. Accepted except for word "significantly". First sentence accepted. Second sentence rejected as not being a proper Finding of Fact. For Respondent, DHRS: 1 - 14. Accepted and incorporated as appropriate. 15 - 16. Accepted. 17 - 19. Accepted. First, second, and fourth sentences accepted. Third sentence rejected as not supported by the evidence. Accepted. Accepted. Accepted except for the last three sub-paragraphs which are not supported by the evidence. Absent. 25 - 26. Accepted except for last sub-paragraph which is rejected as a conclusion. 27. Absent. 28 - 29. Accepted. 30. Accepted. 31 - 37. Absent. 38. Accepted. For Intervenor, Pru-Care: 1 & 2. 3. Rejected as a restatement of testimony and not a Finding of Fact. Accepted. 4 - 5. Accepted. 6 - 7. Rejected as not being a Finding of Fact. 8 - 10. Accepted. 11. Accepted. 12. Rejected as not being a Finding of Fact. 13 - 14. Accepted. 15. Rejected as not being a Finding of Fact except for 16 - 17. last sentence which is accepted. Accepted. 18. Accepted. For Intervenor, Health Options: 1 - 3. Accepted and incorporated herein. 4 - 10. Accepted and incorporated herein. 11. Accepted except for the seventh sentence which is rejected. 12 - 13. Accepted. 14. Rejected as contra to the weight of the evidence. 15 - 16. Accepted. COPIES FURNISHED: David Yon, Esquire 315 South Calhoun Street Suite 800 Tallahassee, Florida 32301 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Bldg. Tallahassee, Florida 32399 John Buchanan, Esquire 118 South Monroe Street Tallahassee, Florida 32301 Jann Johnson, Esquire Post Office Box 391 Tallahassee, Florida 32302 J. Stanley Chapman, Esquire Ervin, Varn, Jacobs, Odom, & Kitchen Post Office Drawer 1170 Tallahassee, Florida 32302 Larry Carnes, Esquire 515 East Park Avenue Tallahassee, Florida 32301 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: From 1968 to the present time, petitioner University Home Foundation, Inc. has owned and operated the Convalescent Center of Gainesville, a 119-bed skilled care nursing home. In early 1977, petitioner submitted an application for a certificate of need to construct and operate a new 120-bed skilled care nursing home in Gainesville, Florida. Due to the bed need projection of the 1976 Florida State Plan for Construction of Hospitals and Related Medical Facilities, petitioner submitted a revised application for an 83-bed skilled care facility. It is petitioner's intention, should a certificate of need be issued, to downgrade the present Convalescent Center of Gainesville to an intermediate care nursing facility and to build the new facility as an 83-bed skilled facility. Petitioner's revised and completed application was acknowledged by respondent effective June 3, 1977. In the latter part of October, 1976, the respondent denied an application for a certificate of need for a 91-bed nursing home in Gainesville, Florida, proposed by Hill-Guthrie Associates. This adverse determination by respondent resulted in an administrative hearing. On June 8, 1977, the Hearing Officer entered an order finding that the procedural deficiencies surrounding the timeliness of the review process on the Hill-Guthrie application should be construed as an approval of the proposal to construct the 91-bed nursing home. On July 28, 1977, respondent issued a certificate of need to Hill-Guthrie Associates. The 1975 Florida State Plan projected a bed need for Alachua County of 91. The 1976 Plan projected a need for 83 long term care beds for the year 1981. The 1977 Plan, which was not accepted by the Department of Health, Education and Welfare until July 19, 1977, calls for a long term bed need of 106 by the year 1982. These plans do not distinguish between skilled and intermediate care bed needs. Due to federal regulations, the projected need figures do not include patients under 65 years of age. Testimony at the hearing indicated that between 10 and 14 percent of patients in nursing homes are under The figures in the State Plans are derived by subtracting from the projected number of beds needed for the area's population the number of beds presently existing in the area. In this instance, Alachua County presently has three existing nursing homes with a capacity of 332 beds. The projected number of beds needed in the 1976 and 1977 Plans (83 and 106, respectively) do not take into consideration the 91 bed proposal of Hill-Guthrie Associates, for which a certificate of need was issued on July 28, 1977. If the Hill-Guthrie home is completed, Alachua County would be overbedded by eight beds under the 1976 Plan and underbedded by fifteen beds under the 1977 Plan. On June 23, 1977, the North Central Florida Health Planning Council, Inc. (HPC), which serves a sixteen county area, held a public hearing to receive comments on the petitioner's revised proposal for an 83-bed skilled care nursing home. Among the items discussed at the hearing were the effects of the Hill- Guthrie decision and the correctness of the figures contained in the State Plan. (Exhibit No. 2) The Staff of the HPC prepared a report on petitioner's application and recommended that a certificate of need be denied. The Staff Report considered the twelve criteria suggested by respondent and found that the proposal was not in conformity with plans, standards and criteria; that there are less costly alternatives to the proposed project; that the proposal would not promote cost containment; and that there was no documented need for the project. More specifically, the Staff found that the Hill-Guthrie approval for 91 beds would exceed by eight the 83 beds needed in Alachua County under the 1976 State Plan. Since Hill-Guthrie proposed construction at a cost of $11,407.00 per bed and petitioner's proposed cost was $13,614.00 per bed, the Staff determined that it would be less costly to utilize existing facilities and to construct the Hill- Guthrie Nursing Home than to build a more expensive facility that would create an overbedded situation. (Exhibit D) The HPC Project Review Committee held its hearing on July 14, 1977, and petitioner's president, Mr. Paul Allen, presented his comments in response to the Staff Report. He contested the population and bed need projections contained in the State Plan, and the Hill-Guthrie decision was discussed. The Committee voted to follow the Staff's recommendation to deny the petitioner a certificate of need. (Exhibits No. 3 and D) The HPC's Executive Committee meeting was held on July 25, 1977. Mr. Allen spoke to the committee, disagreeing with the figures contained in the State Plan and requesting the committee to vote only on his application and disregard the Hill-Guthrie proposal since a certificate of need to Hill-Guthrie had not yet been issued. Thereafter, the HPC voted to recommend to respondent denial of petitioner's application for a certificate of need for the same reasons set forth in the Staff Report. (Exhibits No. 4 and D) By letter dated August 23, 1977, respondent's administrator, Art Forehand, notified petitioner that its project proposal was not in conformity with established standards, plans and criteria. The 1976 State Plan was specifically referenced, but respondent stated that it also considered petitioner's proposal in accordance with the recently adopted 1977 State Plan (Exhibit No. 1) At the hearing, Mr. Forehand testified that his decision was based upon nonconformity with the State Plan without a detailed showing that a need existed irrespective of said Plan. The issuance of a certificate of need to Hill-Guthrie played a large role in Forehand's decision.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that the determination of the respondent Office of Community Medical Facilities to deny petitioner's application for a certificate of need to construct and operate an 83-bed skilled care nursing home in Alachua County be upheld and affirmed. Respectfully submitted and entered this 13th day of January, 1978, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Art Forehand Administrator Office of Community Medical Facilities 1323 Winewood Boulevard Tallahassee, Florida 32301 Selig I. Goldin, Esquire Post Office Box 1251 Gainesville, Florida 32602 James Mahorner, Esquire 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue Whether Petitioner abandoned her position of employment with Respondent and resigned from the career service.
Findings Of Fact At all times pertinent to this proceeding, Petitioner was employed the Department of Health and Rehabilitative Services (DHRS) at South Florida State Hospital (SFSH) as a Human Services Worker I, a career service position. Petitioner was absent without authorized leave or explanation on February 6, 7, 8, 9, 10, and 13, 1991. Petitioner was not at work on February 11 and 12, 1991, but those were scheduled days off. On February 13, 1991, David A. Sofferin, Hospital Administrator at SFSH, notified Petitioner by letter that DHRS had no choice but "... to consider you to have abandoned your Human Services Worker I position and resigned from the State of Florida Career Service at South Florida State Hospital. ..." This letter also advised Petitioner of her right to challenge this action. Petitioner wrote DHRS a letter which was received by DHRS on February 25, 1991. In this letter Petitioner admitted that she had violated the personnel rules and asked for a second chance. Petitioner's letter stated that she had been abducted by a boyfriend on February 11, 1990 (sic), 1/ and taken to Bradenton. The letter did not attempt to explain her absences on February 6, 7, 8, 9, and 10. 1991. Petitioner was provided a copy of DHRS' Employee Handbook on April 20, 1990. Petitioner had been previously advised of Respondent's attendance policies and she had been previously reprimanded for failing to adhere to those policies. The following is found on page 13 of the Employee Handbook under the paragraph entitled "Absences": If you expect to be absent from work for any reason, you must request leave from your supervisor as much in advance as possible, so that suitable disposition of your work may be made to avoid undue hardship on fellow employees and clients. As soon as you know you will be late or absent from work you must notify your supervisor. Absences without approved leave is cause for disciplinary action. If you are absent for three consecutive workdays without authorization, you may be considered to have abandoned your position and thus resigned. (Emphasis added.) CONCLUSIONS OF LAW The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes. Rule 22A-7.010(2)(a), Florida Administrative Code, provides, in pertinent part, as follows: An employee who is without authorized leave of absence for 3 consecutive workdays shall be deemed to have abandoned the position and to have resigned from the career service . ... . The foregoing rule creates a rebuttable presumption. DHRS has established that Petitioner was absent without authorized leave so that she is rebuttably presumed to have abandoned her position of employment and to have resigned from the career service. Petitioner has failed to rebut that presumption.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which finds that Petitioner, Carol Wheeler, has abandoned her position of employment with the Department of Health and Rehabilitative Services and which further finds that she has resigned from the career service. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 13th day of November, 1991. CLAUDE B. ARRINGTON 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 November, 1991.
The Issue The issue to be resolved in this proceeding concerns whether the Respondent, Florida State Hospital, is an "employer" as statutorily defined at Section 760.02(7), Florida Statutes (2007).
Findings Of Fact Behavioral Health Solutions LLC is a private business entity (BHS). The Petitioner was employed by BHS as a clerk- typist beginning on October 6, 2006, and until February 6, 2007, when she was terminated. BHS and the Department of Children and Family Services/Florida State Hospital entered into a contract on September 16, 2006, whereby BHS was to be responsible for providing staff for various positions for the provision of services to residents of Florida State Hospital. One of those positions was that occupied by the Petitioner, at times pertinent to this proceeding. The contract provided that BHS would be responsible for hiring, transferring, promoting, discipline, and discharge/termination of BHS staff. BHS was also responsible for providing its staff with salaries, benefits, compensation packages and training. BHS has its own organizational structure which was not integrated into that of the Respondent Florida State Hospital's organizational structure. The Respondent Florida State Hospital was charged with supervising BHS's staff and with recommendations where required, for disciplinary action or removal from the work site. BHS had the final authority to reassign, discipline or terminate BHS staff, however, by the terms of the contract. The Petitioner was hired by BHS as of October 6, 2006. The offer of employment which she accepted came from BHS. The Petitioner was told later that she was terminated in February 2007 by Angie Burge, the BHS Human Resources Manager. The Petitioner's date of employment were October 6, 2006, through February 6, 2007. The testimony of Angie Burge and Amy Bryant establishes that BHS employees such as the Petitioner, were trained by BHS. Ms. Bryant established through her testimony, as the Operations and Management Consultant for the Department of Children and Families (Department) that neither the Department nor Florida State Hospital had controlling responsibility over employee relations matters regarding BHS's staff/employees, such as the Petitioner. Although she and Florida State Hospital worked in conjunction with Ms. Burge and BHS on employee training requirements, BHS employees, including the Petitioner, were trained by BHS and its staff. BHS and the Respondent Florida State Hospital had a contract for BHS to provide staff for the forensic unit at Florida State Hospital, where the Petitioner was employed by BHS and the contract included the requirement that BHS operate that unit. At orientation, BHS provided its employees or new hires, including the Petitioner, all polices and procedures of BHS and trained them as to such policies and procedures. Ms. Burge, a BHS staff member, provided that training. BHS had authority to hire employees or to terminate them or discipline them and to make final decisions on the performance of the duties of the staff it hired, including the Petitioner. Florida State Hospital and the Department did not have final authority on such matters but could only recommend to BHS. The salary and benefits plan of BHS was very different from that of Florida State Hospital. It was based upon the parent company's pay and benefits scheme, the parent company being Lakeview Center, Inc. The administrators of Florida State Hospital did not have any decision-making authority in employee regulation, discipline, hiring, and termination decisions. Ms. Burge, the BHS Human Resources Manager, made the decision and informed the Petitioner of her termination. The Petitioner has not presented persuasive evidence that Florida State Hospital had sufficient control over the terms and conditions of the Petitioner's employment, or the employment of other BHS staff members, so that such staff members, including the Petitioner, could be deemed employees of the Respondent.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and the arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief in its entirety due to lack of jurisdiction. DONE AND ENTERED this 5th day of March, 2008, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 5th day of March, 2008. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Corrine Hamilton 440 South Cone Street Quincy, Florida 32351 Jacqueline H. Smith, Esquire Department of Children and Family Services Post Office Box 1000 Chattahoochee, Florida 32324-1000
