The Issue The issue for determination is whether Mr. Johnson is eligible for vocational rehabilitation services or whether, as proposed by the agency, his file should be closed.
Findings Of Fact Jefferson Johnson applied for services from the Division of Vocational Rehabilitation (agency) and on November 13, 1997, executed an "Agreement of Understanding" describing eligibility criteria and various client rights and responsibilities. More specifically, the agreement provides, in pertinent part: ELIGIBILITY The Division of Vocational Rehabilitation (DVR) provides employment-related services to those persons who are eligible. To be eligible: You must have a physical, mental or emotional impairment that interferes with employment. It must be determined that Vocational Rehabilitation (VR) services will benefit you in becoming employed or in keeping your job. You must require VR services to become or remain employed. YOUR RIGHTS You have the right to: an evaluation to determine if you are eligible for services; written notice if you are determined to be ineligible for services; appeal any decision concerning denial, provision, delivery, or change of service; participate fully in all decisions. YOUR RESPONSIBILITIES It is very important that you participate in decisions about your employment. Your responsibilities are to: Keep appointments or request in advance that they be changed; participate actively in the planning of your individualized Written Rehabilitation Program (IWRP); cooperate with your counselor in all parts of your rehabilitation; provide all available medical information related to your rehabilitation program. (Petitioner's Exhibit A) There is no dispute that Petitioner has an impairment that interferes with employment. Melissa Kirkland has a Master's degree in counseling and is experienced in working with individuals with mental and emotional impairments. She was assigned Mr. Johnson's case and reviewed his medical records. She also began working with him on developing an assessment of his work-readiness. Mr. Johnson, who has some paralegal training from Rollins College, desires placement in a legal office that does advocacy for disabled persons. He feels that a lawyer should be able to evaluate his work-readiness. Based on Mr. Johnson's interactions with her and on her review of his medical records, Ms. Kirkland recognizes in her client certain problems common to persons with mental health impairments: hostile or confrontational interactions with others, difficulty concentrating, punctuality problems, and lack of appropriate hygiene. Work-readiness requires that those problems be remediated. The remediation cannot be accomplished in a regular job placement but requires the intervention and involvement of skilled counselors and staff. Those counselors are available though the Seminole County Mental Health Center's "job store," a sheltered workshop setting that would provide evaluation and skills training that Mr. Johnson needs before he can benefit from the agency's placement services. The skills that he needs are not related to substantive knowledge in his chosen field or career, but rather are the more basic skills that would enable him to get to work on time, properly groomed, and able to get along with the supervisors and co-workers. The "job store" is the only resource available in Mr. Johnson's geographical area that can provide the assessment and training he needs to become work ready and able to benefit from further vocational rehabilitation services. Mr. Johnson, however, refuses to sign the individualized written rehabilitation plan prepared by Ms. Kirkland and he refuses to participate in the job store even for the few months that Ms. Kirkland recommends. It is this refusal to obtain essential services, and not his profanity over the telephone and in the agency office, that caused Ms. Kirkland to appropriately terminate the agency's services to Mr. Johnson.
Recommendation Based on the foregoing, it is hereby RECOMMENDED: that the agency enter its final order terminating services to Petitioner without prejudice to his right to reapply. DONE AND ENTERED this 2nd day of November, 1998, in Tallahassee, Leon County, Florida. MARY CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of November, 1998. COPIES FURNISHED: Michael A. Greif, Senior Attorney Department of Labor and Employment Security 307 Hartman Building 2012 Capital Circle Tallahassee, Florida 32399-2189 Jefferson W. Johnson 4416 South Lake Orlando Parkway Orlando, Florida 32808 Douglas I. Jamerson, Secretary Department of Labor and Employment Security 303 Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152 Edward A. Dion, General Counsel Department of Labor and Employment Security 307 Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152
The Issue Whether the subject Endorsement to an HMO benefit contract language is ambiguous and, if so, whether the subject subscriber is entitled to additional benefits because of the ambiguity.
Findings Of Fact At all times pertinent to this proceeding, T. C. was enrolled as a participant in the group HMO contract issued by Petitioner to a construction company for the benefit of its employees and their eligible dependents. The HMO contract consisted of a Group Health Services Agreement, a Member Handbook, and any endorsements to either document. The Member Handbook and an Endorsement to the Member Handbook in September 1999 are the documents pertinent to this proceeding. In those documents, Petitioner is referred to as HOI. Prior to September 1999, paragraph 1.08 of the schedule of benefits section of the Member Handbook (page 42) provided, in pertinent part, as follows. 1.08 Short-term physical, speech, or other therapies designed to correct functional defects which remain after a catastrophic illness or crippling injury, . . . when medically appropriate for the treatment of a Condition, provided that significant improvement of the Member's Condition, as determined by the Medical Director of HOI, is expected within two months from the first date of treatment. This benefit is limited to a maximum of two months of treatment per Member per Calendar Year. The subject HMO contract was amended in September 1999 by the Endorsement styled "Endorsement: Rehabilitation Services (85999.459/99SR)" 3/ provided, in pertinent part, as follows: All prior references to short-term physical, speech, or other therapies in the Group Health Services Agreement and/or Member Handbook and any Endorsement attached thereto is [sic] hereby deleted and replaced with the following new subsection entitled Rehabilitation Services: Rehabilitation Services Prescribed short-term inpatient and outpatient rehabilitation services [are] limited to the therapy categories listed below. In order to be covered: (1) HOI must review, for coverage purposes only, a Rehabilitation Plan submitted or authorized by the Member's 4/ Primary Care Physician; (2) HOI must agree that he Member's Condition 5/ is likely to improve significantly within 62 days from the first date such services are to be rendered; (3) such services must be provided to treat functional defects which remain after an illness or injury; and (4) such services must be Medically Necessary 6/ for the treatment of a Condition. Rehabilitation Plan means a written plan, describing the type, length, duration, and intensity of rehabilitation services to be provided to a Member with rehabilitation potential. Such a plan must have realistic goals which are attainable by the Member within a reasonable length of time and must be likely to result in significant improvement within 62 days from the first date such services are to be rendered. The Rehabilitation Plan must be renewed every 30 days. Outpatient Outpatient rehabilitation services are limited per Member per Condition to the number of Medically Necessary rehabilitation services which are received by the Member within the consecutive 62-day period which immediately follows the first date that the Member begins such services. Outpatient rehabilitation services are limited to the therapy categories listed below: Speech Therapy: . . . Physical/Occupational Therapy: Services of a Physical Therapist or Occupational Therapist or Massage Therapist for the purpose of aiding in the restoration of normal physical function lost due to illness, injury, stroke or a surgical procedure while this coverage was in force. In order for Physical Therapy, Occupational Therapy, or massage therapy to be covered under this provision, such services must be part of an approved Rehabilitation Plan and provided by a provider licensed to render such services. Cardiac Therapy: . . . Inpatient Rehabilitation services of the therapy categories described above provided during a covered inpatient confinement will be covered for the duration of the confinement. T. C. was injured in a fall on December 31, 1999. He sustained a fracture of his left proximal humerus with neurovascular compromise. He underwent surgery to reduce the fracture at St. Mary's Medical Center in West Palm Beach where he remained hospitalized until his discharge on January 10, 2000. Upon discharge, his physicians recommended and prescribed a Rehabilitation Plan which provided for physical therapy on Tuesdays and Thursdays of each week. This Rehabilitation was reviewed and approved by Petitioner, effective January 31, 2000. T. C. began receiving rehabilitation services on Thursday, February 10, 2000, from a provider known as Pediatric Therapy. On or about March 24, 2000, Petitioner notified T. C.'s family and Pediatric Therapy that additional physical therapy would not be covered after that date. On Friday, March 24, 2000, T. C.'s mother telephonically filed an expedited grievance with Petitioner requesting coverage for additional physical therapy. As part of her request, she informed Petitioner that although Petitioner's authorization period began on January 31, 2000, T. C. did not commence treatment at Pediatric Therapy until February 10, 2000. Thus, approximately ten days of the authorized period were not utilized. She further informed Petitioner that he had not completed treatment and continued to require physical therapy. Upon review of his treatment dates in relation to the authorization period and consideration of the information provided by his mother, Petitioner approved coverage for a further period of rehabilitation services from Tuesday, March 28, 2000, to April 13, 2000, the date the 62-day period starting February 10, 2000, expired. Petitioner declined coverage for rehabilitation services beyond April 13, 2000, on the basis that the benefits for outpatient therapy under the contract had been exhausted. In its correspondence to T. C.'s mother, Petitioner stated that it was relying on paragraph 1.08, page 42, of the HMO contract. The reference to this provision was an error because the provision had been replaced and superseded by the Endorsement. There was no evidence that T. C.'s family suffered any prejudice because of the erroneous reference in the denial correspondence. The operative language at issue in this proceeding is the language set forth in the Endorsement.
The Issue At issue herein is whether or not the Petitioner is entitled to continue receiving vocational rehabilitation benefits.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the arguments of the parties and the entire record compiled herein, the following relevant facts are found. Ms. Virginia Ryan, Petitioner, has been a client in the Vocational Rehabilitation program since September of 1978. Pursuant to an administrative review by her counselor and specialist assigned to the Vocational Rehabilitation program, Petitioner was advised on February 1, 1980, that she was being terminated from the Vocational Rehabilitation program for the following reasons: Petitioner's case had been active since September, 1978, without accomplishment vocationally. Vocational Rehabilitation services had expended approximately Two Thousand ($2,000.00) Dollars to rehabilitate Petitioner, with no visible results from such expenditures. Work evaluation reports completed for Petitioner at Jackson Memorial Hospital Rehabilitation Center indicate that Petitioner was not trainable or employable. Petitioner's participation in two vocational training sessions were without success. Counselors for vocational rehabilitative services who had serviced and counseled Petitioner concluded, based on the foregoing, that further expenditure of Federal funds would not result in any gainful employment for Petitioner. Petitioner charges that her counselor, Mrs. Harriet B. Weaver, was unprofessional and had sabotaged her training program at Charron Williams Vocational Center; had practiced reverse discrimination with respect to her counseling and efforts to rehabilitate her vocationally; was incompetent to carry out any program to rehabilitate her and had sabotaged her efforts to obtain services through a dental program. Harriet Weaver, a Vocational Rehabilitation counselor since approximately January of 1976, was assigned to service Petitioner during approximately April of 1979. Mrs. Weaver examined Petitioner's medical history file and accepted her as an orthopedic disability client. (Respondent's Composite Exhibit 1.) During the period April, 1979, through February, 1980, Mrs. Weaver assigned Petitioner to approximately four dentists and enrolled her in the rehabilitation program at Charron Williams Vocational School. During this period, Mrs. Weaver also obligated the Vocational Rehabilitation program to defray lodging expenses for Petitioner at the Cadillac Hotel in the amount of approximately Two Hundred ($200.00) Dollars. The evidence also reveals that the program expended approximately Eight Hundred Seventy-seven ($877.00) Dollars to Petitioner in taxi fares, of which approximately 70 percent represented unauthorized fares for taxicab services. Evidence also reveals that Petitioner has repeatedly appeared late for scheduled appointments with dentists, doctors, therapists, and for that matter, she arrived at the subject hearing approximately thirty (30) minutes late, with no explanation for her lateness. Doctors Wainger and Rudman determined that Petitioner was not employable and would not benefit from vocational rehabilitative training so long as her present attitude continued.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Respondent's termination of Petitioner from the Vocational Rehabilitation program be UPHELD. RECOMMENDED this 21st day of July, 1980, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st Day of July, 1980. COPIES FURNISHED: Ms. Virginia Ryan 685 Northeast 64th Street Miami, Florida 33138 Morton Lightner, Esquire District 11 Legal Counsel Department of Health and Rehabilitative Services 401 Northwest 2nd Avenue, Room 1040 Miami, Florida 33128 Alvin J. Taylor, Secretary Department of Health and Rehabilitative Services 1321 Winewood Boulevard Tallahassee, Florida 32301
The Issue Does Petitioner, Nicholas A. Mancini, PhD (Dr. Mancini), satisfy the requirements for licensure as a mental health counselor as established in section 491.005(4), Florida Statutes (2010)?1
Findings Of Fact Based on the evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: On December 30, 2010, the Board issued its Notice of Intent to Deny Dr. Mancini's application for licensure as a Mental Health Counselor. Dr. Mancini requested a hearing to challenge the decision. This proceeding followed. Dr. Mancini has been licensed to practice psychology in California and Pennsylvania. His Pennsylvania license expired November 30, 2003. His California license was canceled on May 31, 2006. Dr. Mancini earned a master's degree in psychology from Fairleigh Dickinson University. He completed 34 semester hours of coursework there. The Fairleigh Dickinson University master's in psychology program that Dr. Mancini completed was not a mental health counseling program accredited by the Council of Accreditation of Counseling and Related Educational Programs. The program is, however, related to the practice of mental health counseling. At the time Dr. Mancini attended Farleigh Dickinson, it was accredited by the Commission on Higher Education of the Middle States Association of Colleges and Schools. It was also accredited by the Council of Higher Education Accreditation. By completing Fairleigh Dickinson course 20PY624, Counseling and Interviewing, Dr. Mancini obtained three semester hours of graduate coursework in the content area of counseling theories and practice. By completing Fairleigh Dickinson course 30PY633, Abnormal Psychology, Dr. Mancini obtained three semester hours of graduate coursework in the content area of diagnosis and treatment of psychopathology. By completing Fairleigh Dickinson Course 30PY600, Tests and Measurements I, Dr. Mancini obtained three semester hours of graduate coursework in the content area of individual evaluation and assessment. By completing Fairleigh Dickinson courses 20PY603 and 20PY604, Statistics and Experimental Psychology, Dr. Mancini obtained three semester hours of graduate coursework in the content area of research and program evaluation. By completing Fairleigh Dickinson course 30PY710, Social Problems, Dr. Mancini obtained three semester hours of graduate coursework in the content area of substance abuse. Dr. Mancini attended, but did not receive a degree from, Hahneman University Medical College of Philadelphia (now Drexel University). He completed four semester hours of graduate coursework there. At the time, it was regionally accredited by the Council of Higher Education Accreditation. Dr. Mancini attended, but did not receive a degree from, Glassboro State College (now Rowan University). He completed six semester hours of graduate coursework there. At the time, it was regionally accredited by the Council of Higher Education Accreditation. Dr. Mancini earned a doctoral degree in counseling psychology from the Professional School of Psychological Studies. At the time, the school was not regionally accredited. Dr. Mancini has not obtained three semester hours of graduate-level coursework from a regionally accredited institution in each of the following content areas: human growth and development; human sexuality, group theories and practice; career and lifestyle assessment; social and cultural foundations; counseling in community settings; and legal, ethical, and professional standards issues in the practice of mental health counseling.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Clinical Social Work, Marriage, and Family Therapy and Mental Health Counseling issue a final order denying Dr. Mancini's licensure application. DONE AND ENTERED this 7th day of June, 2011, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of June, 2011.
The Issue The ultimate issue is whether Coyle is eligible for vocational rehabilitation benefits. The eligibility requirements for vocational rehabilitation benefits are set forth in both federal and state law. An individual is eligible when it is certified that: A physical or mental disability is present; A substantial handicap to employment exists; and Vocational rehabilitation services may reasonably be expected to render an individual fit to engage in gainful employment. Based upon the evidence presented at the hearing, there is no viable dispute that Coyle would not benefit from the receipt of vocational rehabilitation services, or that a documented physical disability does not exist. The real factual issue presented is whether Coyle has a substantial handicap to his employment. Both parties submitted post hearing proposed findings of fact in the form of proposed recommended orders filed March 4 and March 15, 1983. To the extent the proposed findings of fact have not been included in the factual findings in this order, they are specifically rejected as being irrelevant, not being based upon the most credible evidence, or not being a finding of fact.
Findings Of Fact The Petitioner, Michael L. Coyle, applied for vocational rehabilitation services on May 28, 1982. Coyle is a 46-year-old white male who is divorced with custody of his seven-year-old daughter. Coyle worked for 14 years as a printer/compositor for the Sarasota Herald-Tribune. This job required that Coyle stand during his entire work day. Prior to working for the Sarasota Herald-Tribune, Coyle worked as an airline ticket clerk and supervised the loading of freight for an airline. These positions required that Coyle stand during much of his work day. When Coyle applied for vocational rehabilitation services, he was on medical leave from the Sarasota Herald-Tribune on advice of his personal physician. This medical leave was for the purpose of alleviating pain in Coyle's left knee. This pain had become incapacitating. When Coyle applied for vocational rehabilitation services, his medical leave was almost over, and the condition in his left knee had not improved. Coyle's employer, the Sarasota Herald-Tribune, had no positions available in which Coyle could work seated, and Coyle could not perform his duties as a printer/compositor while seated. Coyle was required to perform his duties while standing, and no opportunity existed for Coyle to be seated periodically during his work day. Coyle's application for vocational rehabilitation services was approved, and Coyle was certified as eligible on July 1, 1982. A rehabilitative plan was not prepared for Coyle by Coyle's counselor. Before a rehabilitative plan could becompleted, Coyle applied for additional benefits, to include transportation and maintenance costs. By this time, Coyle's medical studies were completed and their results available. The physicians reported that Coyle had a degenerative and chronic joint disease in his left knee; however, Coyle was able to work if he took aspirin and alleviated the strain on his knee by not standing. Based upon these reports, Coyle's request for maintenance and transportation costs were denied. Based upon the reevaluation of the medical opinions, the agency determined that Coyle was not eligible to receive any vocational rehabilitation benefits. Coyle was notified of the agency's decision to terminate his vocational rehabilitation benefits, and Coyle timely initiated administrative review of that determination. Coyle's records do not reflect that Coyle had applied for SSI and food stamps. Coyle receives some money as an insurance payment for his disability from private insurance maintained through his former employer.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, Michael L. Coyle's basic vocational rehabilitation benefits should be reinstated retroactive to the date of original termination. DONE and RECOMMENDED this 11th day of April, 1983, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 11th day of April, 1983.
Findings Of Fact Ozzie Thompson is a licensed vending facility operator and holds License Number 493 issued by the Division of Blind Services on May 10, 1982. In June of 1983, Mr. Thompson became the vending manager and operator of the snack bar located in the Alachua County Judicial Building. This facility is leased by the Board of County Commissioners to the Division of Blind Services. Paragraph 4 of the Lease agreement provides, in part, that "....The Grantee (Division of Blind Services) may appoint a blind agent and sighted assistants to conduct the business and shall have the right to supervise the business and to replace the agent or employees at will. The Grantor (Board of County Commissioners) agrees to notify the Grantee immediately of any mismanagement by the agent which may come to the Grantor's attention. The Grantee will immediately remove the agent or employee who is unsuitable or unsatisfactory to carry on the business." Almost immediately after Mr. Thompson assumed the position of manager of the Alachua County Judicial Building vending facility, the vending facility specialist in charge of supervising that facility began receiving complaints. The nature of these complaints were the quality of service, sanitation and the presence of derelicts within the facility for long periods of time. The supervisor also received complaints from female employees at the Judicial Building that Mr. Thompson had a tendency to "bump into" them and make "suggestive" remarks to them. The Office of the Clerk, the security officer and the building superintendent at the Judicial Building likewise received complaints regarding the lingering presence of derelicts or "street people" within the vending facility and comments of a sexual nature from either Mr. Thompson, the derelicts or Mr. Thompson's assistants. The female employees complained that they did not feel comfortable going into the vending facility. While no one actually saw Mr. Thompson drink alcoholic beverages while he was working, he was observed on several occasions to be groggy and appeared to be in an intoxicated condition. Mr. Thompson does take pills for asthma, and the medication makes him drowsy. A vending facility operator at the Federal Building in Gainesville has observed Mr. Thompson to be in an intoxicated condition on two occasions. These occurred in the morning hours, at approximately 9:30 a.m., when Mr. Thompson visited his facility on his way to his own facility located about two blocks away. On these occasions, the odor of alcohol was present and Mr. Thompson's speech was impaired. As a result of the complaints received by employees at the Judicial Building, the observations of the Clerk, the security officer and the building superintendent and the continued, lingering presence of derelicts within the facility, the County Administrator requested the Division of Blind Services to immediately relieve Mr. Thompson from employment at the snack bar. At approximately 9:30 or 10:00 a.m. on June 15, 1984, the day that Mr. Thompson was to be removed and a final inventory taken, Mr. Thompson was not in the snack bar. When he later came into the facility, the odor of alcohol was detected and his speech was impaired. Mr. Thompson explained that he had been at home awaiting a telephone call regarding a recent death of a relative, and admitted that he had had "a little" beer before arriving at the facility.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the license of Ozzie Thompson to operate a vending facility be suspended for a period of two years and that, at the expiration of two years, he be required to complete the vending facility training program as set forth in Rule 6A-18.05, Florida Administrative Code, or its successor, prior to issuance of a license. Respectfully submitted and entered this 20th day of September, 1985, in Tallahassee, Florida. DIANE D. TREMOR 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 20th day of September, 1985. COPIES FURNISHED: Herbert Sikes, Esquire Office of General Counsel Knott Building Tallahassee, Florida 32301 Ozzie Thompson D706-100 Memorial Parkway Palatka, Florida 32077 Ralph Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301
The Issue Whether or not the Department of Health and Rehabilitative Services' reduction of Petitioner's vocational rehabilitative benefits is warranted.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, the following relevant facts are found. Petitioner, Warren A. Bergman, is a fifty-two (52) year old male who has been receiving financial assistance and benefits from Respondent since early 1980, to become educated at the local vocational technical school and Manatee Junior College, such that he can become employed as an electronic technician. Petitioner has received maintenance benefits from Respondent in excess of $500.00 per month (average) since he has participated in the vocational rehabilitation program sponsored by Respondent. Petitioner has received approximately $7,283.00 in benefits from Respondent. Petitioner suffers from a chronic diabetic condition which prevents him from standing for prolonged periods of time; be is capable of only limited weight-bearing and he cannot lift or carry heavy objects. Petitioner remains under the care of Dr. Burwell Jones for chronic ulcerations of his ankles and legs. (Joint Exhibit No. 1) Petitioner's rehabilitative program has been reviewed by the Respondent semiannually. During the most recent review in July, 1981, it was determined by Petitioner's vocational rehabilitation specialist that be (Petitioner) was no longer eligible for benefits under Respondent's rehabilitation services program at the existing levels in view of the high cost involved in maintaining those benefits; Petitioner's chronic condition which prevented ambulation and the considered opinion of Respondent's medical experts that there was little likelihood that Petitioner's condition would improve to the point that would enable him to return to gainful employment. 1/ (Testimony of Mrs. Sydney Tatem, Respondent's Program Supervisor and a former vocational rehabilitation specialist in charge of reviewing Petitioner's benefits program.) During the school term ending May, 1981, Petitioner enrolled in a technical math course, a fundamental electronics course and a basic electronics circuitry course. Petitioner withdrew from the technical math course and audited the basic electronics circuitry course. Petitioner received a final grade of "C" in the fundamental electronics course. Petitioner had received benefits from Respondent to maintain a full course of study at Manatee Junior College. Prior to Respondent's decision to reduce the level of funding for Petitioner's benefits under the vocational rehabilitation program, Mrs. Tatem directed Petitioner to obtain a thorough work evaluation program with a neighborhood liaison agency (Goodwill Industries) such that the vocational rehabilitation services program could develop a meaningful rehabilitation service program. Petitioner refused to participate and Respondent was unable to develop a work evaluation program by utilizing the resources of Goodwill. Petitioner felt that his participation in the development of such a program was "not in his best interests" in that he considered such a program would not head him in the direction that he desired. (Testimony of Petitioner) Upon Petitioner's entry in the vocational rehabilitation services program during April of 1980, Petitioner agreed to offer his help and assistance in the development of a program to determine his eligibility for rehabilitation services under the Respondent's program. In that agreement of understanding, Petitioner acknowledged that his program would change as circumstances changed and that his program could be ended if it . was found that it was not likely that he would be able to work. (See Joint Exhibit No. 5) Following Petitioner's refusal to assist in the development of a work evaluation program in order for Respondent to reassess his vocational capabilities, Respondent determined that it would be unable to provide further medical services, medicines or supplies to Petitioner in view of the severity of Petitioner's impairment and the general aptitude test battery scores. Based on the fact that Petitioner was eligible for Medicaid, SSI benefits and food stamps, Respondent also determined that it would no longer provide Petitioner with further living expenses. Respondent, however, agreed to provide Petitioner with transportation expenses in the amount of twenty cents ($.20) per mile for the actual number of round trips per week between his home and Manatee Junior College.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Respondent's actions in reducing the level of vocational rehabilitation services and benefits to Petitioner be UPHELD. RECOMMENDED this 16th day of December, 1981, 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 16th day of December, 1981.
Findings Of Fact At all times pertinent to the issues herein, Respondent, Bob M. Eckert, was certified as a teacher in the State of Florida, authorized to teach gas engine repair and diesel mechanics at the vocational level and was employed by the School Board of Palm Beach County, (Board), teaching small engine repair at the Palm Beach County Sheriff's stockade. He has been employed as a teacher with the Board since 1980. Respondent taught at the Job Skills Center in Palm Beach County during the 1981-1982 school year. When the Center was closed, the Respondent was transferred to the Palm Beach County Sheriff's stockade. Many of the inmates speak a language other than English. The position at the stockade was originally supervised by the Director of Vocational-Technical Education of the Board. Effective with the 1986-1987 school year, the program was transferred to the supervision of the North Technical Education Center, (NTEC), and the principal of that facility became Respondent's supervisor. On July 18, 1986, a teacher's meeting of all 226 day contract teachers, of whom Respondent was one, was held at the Board's vocational office in West Palm Beach for the purpose of a briefing on new programs and policies to be implemented by NTEC for the coming school year. A new instructional program system was planned for implementation and this meeting was to orient the teachers to the new system and included the requirement for lesson planning and curricula framework. Respondent attended this meeting at which Dr. Thurman R. Hux, Assistant Director for Curriculum at NTEC spent considerable time going over each item on the agenda so that all teachers at all centers could use the same system. It was shortly after this meeting that the program at the Sheriff's facility was turned over to the supervision of NTEC. At the time of transfer in September, 1986, Dr. Hux met with instructors on a planning day on or about October 15, 1986. At this meeting, all teachers were given another orientation as to the program changes. The teachers were also given instructions on the preparation of lesson planning forms and a graphic representation of the lesson plan was handed out to them for their information. Subsequent to this meeting, Dr. Hux received lesson plans submitted by all the instructors, including Respondent. In going over the submittals, he found that Respondent's program, as well as some of the others, did not meet certain state requirements. The deficiencies in the plans were minor and easily correctable. Respondent was given a copy of the requirements omitted and asked to define which elements thereof he could meet at his locale. Other instructors requested to do the same all complied. At a subsequent meeting with Respondent, Dr. Hux and Respondent agreed on the hours to be worked by Respondent and a lesson guide and a document dated October 11, 1986, signed by Respondent was prepared to memorialize this change. This proposal was approved by both the Board and Respondent. Based on the input provided by the teachers, the Board subsequently requested each one to start preparing lesson plans at the rate of 10 per week. Respondent did start doing this and completed a number of them, but there were some problems. They were not done according to the lesson planning guide and Respondent was asked to correct them. Notwithstanding this request for correction and completion of the remaining plans due, no additional plans were submitted by Respondent nor were corrections made. Thereafter, on November 20, 1986, Mr. Art Dingee, the ICE coordinator at NTEC, visited Respondent at his facility to discuss the need for program performance standards and the requirement for developing lesson guides. At that meeting, Mr. Eckert informed Mr. Dingee: That he would not adhere to the performance standards as prescribed in the curriculum framework related to gasoline engine mechanics; That though he had submitted some lesson guides, he did not intend to continue, That it was not necessary to compile the requested paperwork because it did not reflect what he was teaching, That he utilized a textbook and that was all that was needed of paperwork, and That if the administrator did not agree with this, they could find someone else to replace him. Mr. Dingee prepared a memo about this and submitted it to Dr. Hux on November 24, 1986. Based on the information contained in that memo, Dr. Hux prepared his own memo to Mr. Eckert in which he thanked him for submittal of the lesson guides previously furnished but pointed out the few corrections which were required and the need to submit the remaining guides. Conciliatory in nature, this memo left little doubt that Respondent was expected to comply with the requirements of NTEC. Nothing was forthcoming from Respondent as a result of this memo and on December 2, 1986, Dr. Hux wrote a brief second memo to Respondent pointing out that subsequent failure to provide lesson guides would be construed as gross insubordination. By this time, all other instructors within the system had submitted the required lesson guides. When Respondent failed to comply, Dr. Hux informed Respondent that there would be a formal evaluation conducted of his performance and that additional informal evaluations would also be run. Consistent with this, on December 15, 1986, Dr. Hux went to the Respondent's classroom at 9:30 am and upon entering, found that Respondent was conducting a class. Dr. Hux instructed Respondent to continue with his teaching but Respondent refused and stopped the class. He said he wanted to talk. Respondent took Dr. Hux to his office area which was open to the classroom where in the presence of his students, he stated that he was not going to turn in the "fucking" things, referring to the lesson plans. At that point; Dr. Hux instructed Respondent to come to his, Dr. Hux's, office the following morning in response to which Respondent indicated that he would not do so. In fact, he said, "if you want to see me, come here." Dr. Hux then repeated his direction for Respondent to come to NTEC whereupon Respondent became profane and when cautioned by Dr. Hux not to speak not to speak that way; referred to him, Dr. Hux, as a "shit head." Dr. Hux subsequently prepared a memorandum outlining the above and at the hearing, when Respondent was asked if he objected to the introduction of the memo as an exhibit, he replied that he was "proud of it." Upon leaving Respondent, Dr. Hux reported the incident to Mrs. Nugent, the NTEC principal, who requested an interview with Respondent. She set up a meeting at NTEC with Respondent for 8:00 am on December 16, 1986. Respondent did not appear as requested and somewhat later that morning, called in stating that he had to go to the doctor at 1:30 pm. Ms. Nugent replied that there was still time for a meeting and directed that he come in at 11:00 am. When Respondent appeared, Ms. Nugent, in the presence of Dr. Hux and Mr. Hatcher, went over the complaints filed. At first, Respondent had little to say, but subsequently agreed with the substance of Hux's and Hatcher's comments. When Respondent admitted he had made the comments attributed to him, Ms. Nugent advised him that he must refrain from profanity. In response to this, Respondent indicated he had used profanity because that was all the "jailbirds" understood. In the conversation with Mrs. Nugent Respondent referred to Dr. Hux and Mr. Hatcher as "jerks" and said he could not work with them. He did not like Dr. Hux's comments about his lesson plans and refused to do any further. When Mrs. Nugent asked Respondent to remain at NTEC for the rest of the day, he refused and went home "sick." When she asked him to come in to the center for help and assistance on subsequent days, he refused to do so. Mrs. Nugent scheduled a formal observation of Respondent by Dr. Hux on January 5, 1987 at 8:00 am. A follow-up conference with Dr. Hux and Mrs. Nugent was also set for January 13, 1987. Between December 17 and 19, 1986, Respondent called in sick daily. On December 19, 1986, Mrs. Nugent sent a registered letter to Respondent informing him to report to NTEC but he failed to do so. Between January 5 and January 9, 1987, Respondent did not report for work but submitted a medical report from his physician dated December 19, 1986, which indicated that on December 16, 1986, he had been treated after a recurrence of "original" problem. He was seen again on December 19, 1986, and it was estimated he would require three to five more treatments. This chiropractic physician's statement did not describe what the condition was nor that it was rendering Respondent incapable of working. Though furnished with a letter from Mrs. Nugent on December 19, 1986, which required him to report on January 5, 1987, Respondent did not come in. Consequently, Mrs. Nugent submitted a request for guidance to Dr. Monroe, Assistant Superintendent for Personnel for the Board. Thereafter, Dr. Monroe held a meeting with Respondent which was attended by counsel for the Board and at which the situation was reviewed with Respondent who said it was "all absolutely true." Notwithstanding that, Respondent indicated he would not work with Dr. Hux or Mr. Hatcher and as a result, Dr. Monroe referred the matter to the Superintendent of Schools who, by letter dated January 26, 1987, suspended the Respondent from duty without pay. Dr. Hux was not the only official to work with Respondent in an effort to get him to comply with Board rules. In November, 1986, Mr. Robert Hatcher, Assistant Director for Administration at NTEC, visited the Respondent's instructional area, arriving sometime prior to 8:00 am. Mr. Hatcher had heard that Respondent had had some trouble in getting some of the supplies he had requested and he had heard rumors of Respondent's bad performance. As a result, he was going to take to Respondent some of the materials he needed and was also prepared to go over with him the steps necessary for requisitioning supplies. Mr. Hatcher took Mr. Dingee with him on this visit. When they arrived at the Respondent's room, neither Respondent nor anyone else was present, but shortly thereafter, Respondent came in. The parties briefly talked over innocuous matters and Mr. Hatcher began to ask questions about Respondent's job. He contends he felt sorry for Respondent because his environment was so bad. When Hatcher suggested cleaning up the place as a means of improving it, Respondent took his comments as criticism and suggested they go to his office. There, Respondent began complaining about educators and their methods. He thought educators to be stupid and incompetent, pointing out a book, the cover of which had been affixed upside down. In an attempt to reduce the obvious stress that Respondent appeared to be suffering, Mr. Hatcher tried to change the subject. In response to Hatcher's questions, Respondent painted a picture of a loosely run operation. For example, when Hatcher looked at Respondent's roll book, it was neat but there were no entries for the previous day showing what matters had been covered and what grades, if any, had been given. In response to that, Respondent indicated that he filled it out the following morning instead of immediately after class. When asked about his lesson plans, Respondent folded them up into a ball and told Hatcher he could, "stick them up your ass." At this point, Hatcher decided to leave and started to retreat from the area. Respondent appeared to be obviously stressed and Hatcher wanted to calm the situation down by leaving. As he walked out through the work area, in front of an officer and several inmates, Respondent called out that Hatcher was the man who was going to close down the program. This inflammatory comment was not true. When Hatcher spoke to the officer to deny this and to explain what was happening, Respondent interjected himself with profanity to the point where the inmates started coming up to see what was going on. As a result, Mr. Hatcher left, considering this to be the more appropriate course of action. However, upon his return to the office, he discussed the matter with Mrs. Nugent and reduced his report to writing. As a result of Respondent's conduct, both Dr. Hux and Mr. Hatcher consider it difficult to work with him. Mr. Hatcher would work with him, but Respondent has a negative attitude toward the system and a tendency to verbally abuse his coworkers. In his opinion, it is not likely that Respondent will ever comply with any request unless he agrees with it. Dr. Hux feels that working with Respondent would be difficult but possible if Respondent would agree to work within the framework of the Board's policies and instructions. However, he does not believe this will happen and considers that Respondent's misconduct has adversely affected his effectiveness within the school system to the point where it would be difficult for anyone who was a member of and supports the Board, to work with Respondent. Mrs. Nugent considers that Respondent's behavior as described to and observed by her has impaired his effectiveness within the system in that: His ability to work with Dr. Hux and Mr. Hatcher is nonexistent. He is unable to communicate with them. He is unable to work with Mrs. Nugent. He has refused to obey and his refusal to obey her instructions as well as those of other supervisors is willful. His reference to Dr. Hux and Mr. Hatcher as "jerks" and his shaking of his fist at them is contra to good order and discipline, and His refusal to keep lesson plans as required constitutes a neglect of duty. Respondent contends, and there is no dispute of the fact that his record as a teacher in the classroom has been either excellent or exceptional during the number of years he has worked with the school board. He further states that over 30 percent of his students got jobs when they got out of jail and, even more, were qualified by him for work release programs prior to expiration of their term of confinement. All of this was, however, before the transfer of the program to NTEC. When that agency took over, they imposed a lot of new rules and made it clear that more were to come. These rules required too much paperwork and this paperwork interfered with Respondent's ability to teach. Respondent urges that he was hired to teach, not to complete paperwork. He admits he does not accept the distractions caused by the paperwork which interfered with his teaching according to his methods at his institution. He would not accept distractions from the Sheriff's Office or the Board. His students were special individuals (inmates) who needed to learn, in a short time, in a special way. Respondent contends he did not have the time to spend on useless paperwork. He was successful in doing what he was paid to do, prepare criminals for release employment. Respondent submitted several newspaper articles from the local paper which tended to support him and which pointed out that the majority of his student were non-English speaking individuals who had dropped out of school because of their inability or unwillingness to take the type of tests being required by the new rules imposed by NTEC. Respondent contends, and with some merit, that to treat these students as normal vocational students would be of no benefit to them or to the program and would result in a diminishment of their interest and performance within the program. It was because of tests and because of the strict regimen that the majority of them dropped out of school in the first place and they will not respond, according to Respondent, to a program which imposes the same structure and requirements as are found in the normal school environment. Respondent testified that the Sheriff's Office is not now satisfied with how the school is being run since he left and that the NTEC changes are counterproductive. This evidence is hearsay, however, and, unsupported by other evidence, cannot be considered. With respect to the lesson plans he did submit, Respondent contends that he submitted them on the basis of how Mr. Dingee told him to do it and they were still returned as incorrect. When NTEC officials indicated they would accept them even though incorrect this proved to him that NTEC would accept any paperwork. Respondent contends that the Board is more concerned with form than with results and that all the things found wrong with his performance were merely harassment. Respondent feels he was hired to do a job and did it successfully until NTEC took over. NTEC changes were merely to give bureaucrats a job and had no substance. When he resisted, he was considered obtuse and redundant and an effort was made to drive him out of his job. Respondent is a qualified and successful teacher in the area of vocational education and he would operate successfully in a free-form environment. However, his demeanor is not well received in the more cloistered environs of academia and school officials take a dim view of being told to shove paperwork up their collective "asses" or to commit other indignities upon their persons. His inability to accept that which is not to his liking, and his explosive responses thereto and unwillingness to compromise, substantially result in a diminishment in his effectiveness as a member of the instructional staff of the school system.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the School Board of Palm Beach County enter a Final Order upholding the suspension without pay of Respondent and dismissing him from employment the Board. RECOMMENDED this 21st day of August, 1987, 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 21st day of August, 1987. COPIES FURNISHED: Thomas J. Mills, Superintendent Palm Beach County School Board 3323 Belvedere Road Building 502 West Palm Beach, Florida 33402 Abbey G. Hairston, Esquire School Board of Palm Beach County 3323 Belvedere Road Building 503, Room 232 West Palm Beach, Florida 33402 Bob M. Eckert 4549 Bangor Avenue West Palm Beach, Florida 33417
The Issue May Petitioner terminate vocational rehabilitation services to Respondent, specifically, vocational rehabilitation benefits under Chapter 10, F.A.C., for a two year program to become a newspaper writer? HEARING AND PROCEDURE At hearing, Petitioner presented the oral testimony of Kay Nelson and had admitted two exhibits. Respondent testified on her own behalf and presented the oral testimony of Tom Hawkins. Respondent had no exhibits admitted in evidence. Petitioner filed transcript of the formal hearing but has filed no proposed findings of fact and conclusions of law. Respondent timely filed, within the extended time limits stipulated by the parties, a five page letter with various exhibits attached. Leave was not sought by motion for the submission of these after-filed exhibits and they have not been considered. A ruling in compliance with Section 120.59(2), Florida Statutes is contained within the CONCLUSIONS OF LAW portion of this recommended order.
Findings Of Fact Respondent, Marilyn McFadden, is an adult Caucasian female with a history of marital, familial, and emotional problems. Her past work history is unskilled and non-specific except for assisting a former husband who was a pentecostal preacher and evangelist and for working in her own creative jewelry business. In 1983, Respondent was referred by the federal Social Security Administration to Petitioner State of Florida, Department of Health and Rehabilitative Services vocational rehabilitation unit (DHRS), in Sarasota, Florida. On March 14, 1983, Respondent made application for vocational rehabilitation services and funds.1 An extensive "work-up" was prepared by Kay Nelson, a DHRS employee who was a vocational rehabilitation counselor at the time. In the course of this "work-up," medical advisors to Petitioner verified to the satisfaction of Ms. Nelson that Respondent had sufficient physical disability or physical vocational handicap in her neck, shoulders, and upper back2 to qualify for DHRS vocational rehabilitation client services on the basis of a physical handicap and that Respondent would require preparation or re-training for semi-sedentary work on the basis of her past limited work history and present physical disability/handicap. At that time, Respondent did not confide in Ms. Nelson or the psychological evaluator that she had undergone prior psychiatric treatment with regard to her first divorce. Therefore, Ms. Nelson's initial assessment of Respondent's eligibility for vocational rehabilitation services did not take into account that Respondent might qualify for benefits due to a mental or emotional disability. Likewise, it did not take into consideration that her psychological makeup might present a barrier to successful vocational rehabilitation or future employability. Indeed, Ms. Nelson's assessment concluded that Respondent was then psychologically fit to embark on a two year college course so as to enter the occupational grouping of "Newswriter 131.267-214." In order to achieve the goal of rendering Respondent employable, Respondent on her own behalf and Kay Nelson on behalf of DHRS entered into a written individualized written client services program set out in a three page document-dated July 12, 1983. (P-1) Before entering into the written program, Respondent and Nelson orally agreed that the services set forth in the written program had a reasonable expectation of getting Respondent back to work. In addition to counseling, guidance, assistance with placement, and other services to help Respondent achieve employability, the written program specifically provided for Respondent to pursue a Mass Communications "Journalism) AA [Associate of Arts] degree at Manatee Junior College by completing 60 semester hours at 517.00 per hour for a total of $1,020.00. In the "Counseling and Guidance Goals" portion of the written program it states as goals, "1. To encourage Marilyn's participation in New Option Program. To assist her to see her strong point-- positives. To assist her to view things as a whole and not dwell on detail." Elsewhere in the program the parties agreed, in pertinent part, to "Counselling & Guidance provided by V. R. Counselor, Double Your Opportunity Program at MJC,3 & Displaced Homemaker Programs. N/C to V.R."4 and "Placement Services provided by V.R. 9 Counselor, V.R. Placement Specialist, F.S.E.S.; and M.J.C. n/c to V.R." These services had the extensive objective of emotional support, teaching assertiveness, guiding course selection and vocational choices, and preparing Respondent for return to employment including resume preparation, job interview techniques, and proper vocational attitudes. In the "Statement of Client Agreement and Participation" portion of the written program it is spelled out that: "I, Marilyn J. McFadden; will cooperate in all phases of my Vocational Rehabilitation. I will attend all classes regularly and give my best effort in all classwork. I understand that in order for V.R. to continue at MJC, I must maintain a 2.0 GPA, keeping my counselor advised monthly of my progress at MJC in training and any expected changes in my V.R. plan. Prior to the end of each term, I will provide my counselor a written list of my expected course grades, initialed by the respective professors, as well as a listing of classes and books for the next term. I also understand that I am expected each term to contact the financial aid office and apply for any financial aid that it is determined I may be eligible to receive. Any scholarships or grant moneys I receive in addition to my PELL Grant are to be reimbursed to V.R. unless my counselor deems otherwise. I will be expected to assume financial responsibility for all my medical, therapy, and maintenance expenses. If personal or financial needs arise that would create undue hardship on my completing this training program I-am to advise my counselor prior to initiating any program changes. Any plans to continue on with a Baccalaureate degree in my ma]or field will not be considered until I have completed my two year degree and then will be dependent upon my successful completion of this training, my final G.P.A., and if my counselor and I agree that this prescribed course of action is in my best vocational interest. I understand that at the present time there is no financial obligation on the part of V.R. to fund me in a 4 year training program nor is my counselor or V.R. recommending such a program. Any major changes to my program such as change in vocational goal or additional training will require a supplemental plan. At the completion of my training program, I understand that I will be expected to work closely with those placement resources listed in my plan, keep scheduled job interviews, seek employment myself, and when appropriate employment is offered to me, return to work. "Emphasis supplied) Respondent signed and dated this program agreement. (P-1) From August 1983 until January 1984, DHRS provided Respondent with money for some tuition costs until she received a Pell education grant, provided her with funds for books, transportation, and child care for her daughter, and provided her with on-going guidance and counselling. During this period, Respondent fully complied with the signed, written program. Respondent took some remedial courses in math and English. It is not clear whether these courses were strictly remedial or are basic to an AA degree which may be used as the basis of a 4 year Baccalaureate degree, but these courses were apparently necessary to allow Respondent to remain in other courses required to qualify for an "AA" toward achieving "newswriter" employment. There is therefore insufficient evidence to support a finding that Respondent deliberately took unauthorized courses at Manatee Junior College during this period or during subsequent grading periods. On January 18, 1984, Ms. Nelson counselled with Respondent and concluded Respondent had severe emotional problems. Except for her formal job title, little information was provided concerning Ms. Nelson. No evidence of education, training or experience of Ms. Nelson was offered as a predicate for her reaching this conclusion, and indeed, Ms. Nelson personally testified that she was "not a doctor". However, upon Ms. Nelson's testimony concerning her direct, personal observations of Respondent on that date and shortly thereafter that Respondent was behaving erratically and talking incoherently and upon Respondent's reference to this period as "the breakdown," it is found that for an unspecified period of time in early 1984 Respondent was unable to comply with the written vocational rehabilitation program due to severe emotional problems. Ms. Nelson and a person named Jeanne Hinton transported Respondent to a psychiatric hospital and attempted to have her commit herself voluntarily. When Ms. McFadden refused to commit herself voluntarily, Ms. Nelson and others appeared in some type of legal proceeding in an attempt to involuntarily commit Respondent for psychiatric care. Inevitably, these incidents resulted in considerable animosity and distrust on Ms. McFadden's part toward Ms. Nelson and toward DHRS. There is no evidence that Ms. McFadden is currently under any court or Division of Administrative Hearing Order of incompetency or involuntary commitment.5 Nonetheless, based on hearsay and her own observations, Ms. Nelson, as counsellor in charge of Ms. McFadden's vocational rehabilitation benefits, determined that Ms. McFadden was ineligible for vocational rehabilitation benefits under the existing program. In large part, Ms. Nelson's decision was based upon Ms. McFadden's expressed belief that God would heal her without counselling by DHRS or a psychologist and Ms. McFadden's refusal of counselling by Ms. Nelson or any other human being. Ms Nelson appears to have concluded that such reliance on God is evidence of emotional instability. Ms. Nelson closed Respondent McFadden's file and terminated her vocational rehabilitation benefits upon grounds Respondent was "ineligible." Ms. Nelson is emphatic that the determination of ineligibility is that of the vocational counsellor and as that counsellor, she does consider Respondent ineligible because of what Ms. Nelson perceives as Respondent's emotional problems interfering with Respondent's ability to complete the agreed program and interfering with Respondent's employability. Ms. Nelson elected not to close the file upon grounds-the Respondent was "uncooperative." Respondent denies any type of mental handicap requiring remediation as of the date of formal hearing. She maintains that although she first signed the contract program which DHRS has now terminated, she thereafter decided unilaterally that her acceptance of the benefits provided thereunder was dishonest within her personal moral code because she had no intention of becoming a newswriter; that she did not intend to ever accept employment in such a field but intended to "piggyback" a four year Baccalaureate degree in journalism and possibly a Master's degree on top of the "AA" degree if she successfully completed the "AA" degree. At hearing, Respondent initially refused to comply with the terms of the program and then offered to comply with the requirements of the program as far as achieving the "AA" degree but refused to progress toward employability as a newswriter and indicated she would still reject counselling. The mutual hostility, mutual mistrust, and lack of respect for each other's point of view of Ms. Nelson and Respondent McFadden was an observable situation clearly evident throughout the entire hearing.
Recommendation That the Department of Health and Rehabilitative Services enter a final order affirming the administrative termination of the vocational rehabilitation benefits entered into by the July 12, 1983 written client services program. DONE and ORDERED this 19th day of August, 1986, in Tallahassee, Florida. ELLA JANE DAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of August, 1986.
The Issue The issue is whether respondent's license as a medical doctor should be disciplined for the reasons stated in the administrative complaint.
Findings Of Fact Based on all of the evidence, the following findings of fact are determined. At all times relevant hereto, respondent, David Mark McGrew, was licensed as a medical doctor by petitioner, Department of Professional Regulation, Agency for Health Cost Administration, Board of Medicine (Board), having been issued license number ME 0042526. Respondent is engaged in the practice of medicine as a family practitioner at 4655 Keysville Avenue, Spring Hill, Florida. He has been licensed by the Board since 1983, is board certified in family practice, and is president of the Florida chapter of the Academy of Hospice Physicians. Except for this proceeding, which is based on a failure by respondent to comply with a previous Board final order disposing of a complaint, there is no evidence that respondent has been subjected to prior disciplinary action. The facts which gave rise to this dispute are as follows. On an undisclosed date in 1988 or 1989, the Board issued an administrative complaint against respondent alleging generally that he had inappropriately prescribed certain pain medication to a longtime patient. Although respondent was not represented by counsel, he entered into negotiations with the prosecuting attorney and eventually executed a stipulation wherein he agreed to certain conditions, including the imposition of a $500 fine to be paid within thirty days from date of the final order, a reprimand, and a requirement that he attend a three day course at the University of South Florida School of Medicine. However, respondent did not admit that his prescribing was inappropriate or excessive. The stipulation was presented to the Board at a meeting held on August 5, 1989. The dialogue of the relevant portion of the meeting was introduced into evidence as a part of joint exhibit 1 and petitioner's exhibit 3. It should be noted that a considerable amount of discussion was given to whether new conditions should be substituted for those contained in the stipulation. The discussion in the transcript does contain comments, albeit somewhat unclear, which lend support to the Board's contention that it intended to add a number of new conditions to the agreement but also retain the $500 fine. At the same time, however, the transcript discloses that respondent, who was not represented by counsel at the meeting, did not fully understand that certain features of the original agreement were being retained in the new agreement. This is evidenced by the fact that near the end of the meeting, respondent was requested to reiterate his understanding of the terms and when he did he failed to include a fine. No one corrected his misunderstanding. Accordingly, respondent left the meeting with the impression that the original stipulation had been rejected by the Board and a new agreement approved which required that respondent be reprimanded, he complete a course of at least two weeks duration in pharmacotherapeutics and addictionology within six months from the date of the final order, and for a period of one year after completion of the course, he use sequentially numbered duplicate prescriptions in prescribing controlled substances, retain one copy of the prescription in the patient's records, and furnish a DPR investigator a copy of all such prescriptions within thirty days after being written. Respondent believed that the Board no longer intended to impose a $500 fine, particularly since no specific mention of the fine was made by the Board's members while discussing the new conditions and because the Board had imposed a new (and more costly) requirement that he attend a two-week approved course. Finally, respondent was under the impression that the Board would lend assistance in finding a course of the nature prescribed at the meeting since respondent was unaware of any formal course of that duration. On August 17, 1989, the Board issued its final order concerning the stipulation. The order provided that "the (original) Stipulation as submitted be and is hereby approved and adopted in toto and incorporated by reference herein with the following additions:" Thus, the Board actually approved the original stipulation, including the fine, with certain modifications. The final order did not carry the advice that if respondent disagreed with the order, he must file an appeal with the district court of appeal within thirty days. This was probably because, in the original stipulation, respondent had specifically waived "all further procedural steps, and expressly waive(d) all rights to seek judicial review of or to otherwise challenge or contest the validity of the joint stipulation". Thus, the final order was never appealed, and its specific terms were not timely satisfied. However, for the reasons stated later, the failure by respondent to satisfy these conditions was not intentional and occurred because of his misunderstanding of the agreement and his failure to find a satisfactory two-week course. On August 22, 1989, respondent wrote the Board a letter acknowledging receipt of the final order and stating that he believed the Board had specifically rejected the fine in favor of a two-week educational course and that he "did not agree to a $500 fine." He asked what he should do about this disagreement, and then noted that he had contacted fourteen schools, individuals or organizations regarding courses that might satisfy the educational requirement imposed by the Board, and had been offered an internship at a pain clinic. After receiving no reply to his August 22, 1989, letter, respondent again wrote the Board on October 17, 1989, regarding his prior inquiry. He added that "it is my sincere desire to get this matter resolved at the earliest convenience." A second follow-up letter was sent by respondent to the Board on January 19, 1990, with copies of his two earlier letters. In addition, he made several telephone calls to the Board seeking to obtain a reply to his inquiries. On June 11, 1990, or some ten months after respondent's first letter, a Board administrative assistant replied to respondent's letter and acknowledged that "there was some confusion as to the administrative fine imposed by the Final Order dated August 17, 1989." The letter also stated: The tape of your appearance before the Board of Medicine on August 5, 1989, has been reviewed and there is no indication that the Board agreed to waive the $500 administrative fine which was due September 16, 1989. The amendment to the Stipulation concerned a formal course in pharmacotherapeutics and addictionology, to be a minimum of two weeks in length and approved by the Board. This course was to have been taken as soon as possible, but in any event, no later than six months after the date of the Final Order. After completion of the course reference (sic) above, the one year monitoring of your prescribing habits was to begin. At this time, there is no indication in your file that such a course has been approved by the Board or completed by you. In order to avoid possible disciplinary action against your license, please comply as soon as possible with the requirements of the Final Order. If you have further questions regarding this matter, please contact the Board office. (Emphasis in original) This letter prompted further correspondence between respondent and the Board. On June 26, 1990, respondent wrote another letter to the Board in which he acknowledged receipt of the Board's recent letter and gave a lengthy description of his unsuccessful efforts to find a course of the nature prescribed by the Board in its final order. He identified several shorter courses he had already attended plus future courses he planned to attend and asked that they be used collectively to satisfy the two weeks of educational training. He also asked for a copy of the tape of the Board's meeting. On July 25, 1990, a Board administrative assistant replied to respondent's letter and advised him that he was "in violation of the Final Order." The letter further stated that he was required to pay a $500 fine no later than September 16, 1989, or thirty days after the final order. As to the educational requirement, the assistant noted that the Board "acknowledges your attempts to receive guidance regarding the course of education, therefore, if it is your wish to attempt to comply with the requirement of the Order, we suggest that you consider the following individuals." The letter then identified two physicians in Minnesota who had "experience in assisting physicians fulfill particular course requirements." Finally, the letter noted that "failure to comply with a lawful order of the Board may be grounds for further disciplinary action." On August 18, 1990, respondent again wrote the Board and stated that he had just learned the Board was considering the issuance of another administrative complaint and was surprised. He also indicated he had contacted the two individuals mentioned in the Board's letter of July 25, 1990, and the courses offered by those individuals were "unstructured internship programs" of a type which had been previously rejected by the Board as being insufficient. Finally, respondent mentioned that he could attend a two-week course offered by a substance abuse center if this met the Board's approval. By letter dated August 29, 1990, a Board administrative assistant replied to respondent's letter and told him his suggested coursework would be presented to the Board at its September 20, 1990, meeting, and he would be notified of its decision. Thereafter, on October 8, 1990, respondent was advised by letter that the Board had rejected his request for approval of the two-week course at the substance abuse center. The Board also advised that respondent's request for partial credit for attending a conference on prescription drug abuse had been rejected. On October 24, 1990, the Board filed an administrative complaint against respondent for failing to comply with the terms of the final order issued on August 22, 1989. That prompted respondent to initiate this proceeding. At hearing respondent established that, although he had not yet attended a formal two-week course in pharmacotherapeutics and addictionology, he had no intent to defy the Board's order. Indeed, respondent has made a genuine effort to comply with this requirement by contacting numerous schools, individuals and organizations, including several suggested by the Board, but he has had no success in finding a two-week course that would meet the Board's approval. He has repeatedly asked the Board for assistance in finding such a course but was offered only very limited assistance. To illustrate his willingness to attend continuing medical education courses, respondent identified twenty-five courses of varying duration (but all less than two weeks) he has attended since the Board's final order, many of which deal with pain management and therapy. These courses total 173.25 hours, or twice the hours that would be included in a formal two-week course. He was also certified as a diplomate in the American Academy of Pain Management in 1990, which evidences further skills and knowledge obtained in this area after the Board's final order. He has expressed a complete willingness to attend the requisite course if he can find one that meets the Board's satisfaction. In the alternative, he has asked that the hours spent attending shorter courses in the same subject matter be used as credit towards satisfying the two-week course. This is a reasonable alternative and should be approved since the number of hours far exceeds the number he would receive in a two-week course. As to the fine, respondent has reviewed the transcript of the Board's meeting and still maintains that there is no indication in the transcript that the Board intended to assess a $500 fine when it imposed the new conditions. However, because he has now, for the first time, been given his "day in court" in this proceeding to explain his side of the story, he is willing to pay the fine if in fact the Board still intends to assess one. There is no evidence to show that respondent deliberately defied the Board's order that he pay the fine since he genuinely believes his position on that issue is correct. Finally, respondent is concerned that if he is found guilty in this proceeding, the disposition will be reported to the National Practitioners Data Bank and will be a permanent mark against his license to practice medicine.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent enter a final order dismissing with prejudice the administrative complaint. Respondent should also be required to comply with the terms of the final order issued on August 17, 1989, as discussed in paragraph 17 of this order. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 18th day of September 1992. DONALD R. ALEXANDER 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 18th day of September 1992. APPENDIX Petitioner: 1. Partially accepted in finding of fact 1. 2-3. Partially accepted in finding of fact 2. 4-5. Partially accepted in finding of fact 3. 6-8. Partially accepted in finding of fact 4. 9. Rejected as being unnecessary. 10. Partially accepted in finding of fact 13. 11-14. Partially accepted in finding of fact 3. 15. Partially accepted in finding of fact 9. 16. Partially accepted in finding of fact 10. 17. Partially accepted in finding of fact 11. 18. Partially accepted in finding of fact 4. Respondent: 1-2. Partially accepted in finding of fact 1. 3. Partially accepted in finding of fact 2. 4-5. Partially accepted in finding of fact 3. 6. Partially accepted in finding of fact 4. 7. Partially accepted in finding of fact 2. 8. Partially accepted in finding of fact 5. 9-10. Partially accepted in finding of fact 6. 11-12. Partially accepted in finding of fact 7. Rejected as being unnecessary. 14-18. Partially accepted in finding of fact 3. 19. Rejected as being contrary to the evidence. 20-22. Partially accepted in finding of fact 3. 23. Partially accepted in finding of fact 4. 24. Partially accepted in finding of fact 7. 25. Partially accepted in finding of fact 8. 26. Partially accepted in finding of fact 10. 27. Partially accepted in finding of fact 13. 28. Rejected as being unnecessary. 29. Partially accepted in findings of fact 9 and 10. 30. Partially accepted in finding of fact 10. 31. Partially accepted in finding of fact 11. 32. Partially accepted in finding of fact 12. 33. Rejected as being unnecessary. 34. Partially accepted in finding of fact 13. 35. Rejected as being unnecessary. 36. Partially accepted in finding of fact 13. 37. Rejected as being unnecessary. 38-39. Rejected as being irrelevant. 40-41. Partially accepted in finding of fact 10. 42-43. Partially accepted in finding of fact 13. 44. Rejected as being irrelevant. 45. Rejected as being unnecessary. 46-47. Partially accepted in finding of fact 13. Note - Where a proposed finding has been partially accepted, the remainder has been rejected as being unnecessary, irrelevant, not supported by the evidence, subordinate, or a conclusion of law. COPIES FURNISHED: Richard A. Grumberg, Esquire Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lee Sims Kniskern, Esquire Suite 630 2121 Ponce de Leon Coral Gables, Florida 33134-5222 Dorothy Faircloth Executive Director Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0770 Jack L. McRay, Esquire 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
