The Issue Whether Petitioner is entitled under Florida’s workers’ compensation laws to payment for professional services to an injured worker for the billings identified by the three notices of disallowance at issue in this consolidated proceeding.
Findings Of Fact The claimant, a male, was born July 21, 1961. On February 17, 1995, the claimant sustained a severe traumatic brain injury (TBI) and other injuries during the course of his employment with the City of Hollywood, Florida. At all times relevant to these proceedings, the claimant has been receiving benefits pursuant to the Florida workers’ compensation laws. At all times relevant to this proceeding, the carrier has been the workers’ compensation carrier for the employer. At all times relevant to this proceeding, the claimant has lived in a home purchased for him by the carrier. The claimant has a life estate in the home and the carrier has the remainder interest. The claimant lives in the home with his mother and has 24-hour attendant services paid for by the carrier. The carrier has purchased a van for the claimant, which his attendant uses to transport the claimant to therapy and other appointments. The claimant has a history of mental illness dating to his teenage years, when he was diagnosed with schizophrenia. As a result of his injury and his illness, the claimant acts out periodically and becomes physically resistive to those trying to care for him. At all times relevant to this proceeding, Petitioner has been a provider of rehabilitation services to various patients, including those with TBI. Dr. Marie DiCowden, a psychologist, is the founder and director of Petitioner. Dr. DiCowden described Petitioner as being a health care community that provides an integrated administration for a long continuum of care post acute rehabilitation through community reintegration using health promotion, prevention, and integrated primary care. Petitioner is accredited by two national accrediting organizations referred to by the acronyms CARF (Commission on Accreditation of Rehabilitation Facilities) and CORF (Commission on Outpatient Rehabilitation Facilities). Petitioner is also certified by the Florida Division of Vocational Rehabilitation (formerly housed in the Department of Labor and now housed in the Department of Education), the Florida Division of Workers’ Compensation, and by the Florida Brain and Spinal Cord Injury Program.4 As a result of his accident, the claimant was in a coma for several weeks. He was hospitalized (first in an acute care facility and subsequently in two different rehabilitation hospitals) until December 28, 1995, when he was placed in Whitehall Nursing Home. Whitehall was not an appropriate placement for the claimant because of his behavior and his need for rehabilitation services. On March 27, 1996, Yvonne Beckman, a rehabilitation nurse consultant employed by the carrier, referred the claimant to Petitioner for an evaluation. Shortly before that referral, the claimant had been evaluated by two neuropsychologists (Dr. Jorge A. Herra and Dr. Lee. H. Bukstel), who had opined that the claimant would benefit from rehabilitation services. Ms. Beckman asked Dr. DiCowden to recommend a neurologist who practiced in South Florida. In response, Dr. DiCowden gave Ms. Beckman the names of three neurologists, one of whom was Dr. Paul Wand. Ms. Beckman authorized Dr. Wand to provide services to the claimant. Dr. Wand prescribed continued rehabilitation services for the claimant at Petitioner’s facility. The services at issue in this proceeding were provided by Petitioner pursuant to prescriptions from Dr. Wand.5 Prior to accepting the claimant, Dr. DiCowden informed a representative of the carrier that Petitioner would accept the claimant as a patient in its brain injury program and estimated the annual costs to be $200,000.00. The claimant began receiving rehabilitation services from Petitioner five days a week beginning August 1, 1996. The claimant received from Petitioner’s staff physical therapy, occupational therapy, cognitive retraining, speech training, language training, psychological services, art therapy, music therapy, and yoga therapy. The claimant continued to receive those rehabilitation services from Petitioner (five days a week) from August 1996 to the date of the hearing (and presumably to date). The authorization for the provision of rehabilitation services to the claimant was periodically reviewed by the carrier. In November 1998, the carrier had the claimant examined by Dr. Richard Bailyn (a neurologist) and by Dr. Kevin Lapinski (a neuropsychologist). Those doctors opined that the claimant was not benefiting from cognitive retraining, occupational therapy, speech therapy, or language therapy at Petitioner’s facility. They further opined that the claimant required an activity program to satisfy his recreational and stimulation needs, but that such a program did not require Petitioner’s facility since the claimant’s aide could be trained to provide those services. Dr. Bailyn was of the opinion that as of November 1998 the various therapies provided by Petitioner’s facility to the claimant were not reasonable and were not medically necessary. Section 440.13(6), Florida Statutes, requires a carrier to review bills by providers of medical services as follows: (6) UTILIZATION REVIEW.--Carriers shall review all bills, invoices, and other claims for payment submitted by health care providers in order to identify overutilization and billing errors, including compliance with practice parameters and protocols of treatment established in accordance with this chapter, and may hire peer review consultants or conduct independent medical evaluations. Such consultants, including peer review organizations, are immune from liability in the execution of their functions under this subsection to the extent provided in s. 766.101. If a carrier finds that overutilization of medical services or a billing error has occurred, or there is a violation of the practice parameters and protocols of treatment established in accordance with this chapter, it must disallow or adjust payment for such services or error without order of a judge of compensation claims or the agency, if the carrier, in making its determination, has complied with this section and rules adopted by the agency. As required by Section 440.13(6), Florida Statutes, the carrier conducted a utilization review of the services provided by Petitioner to the claimant beginning in late 1999. The carrier retained Dr. Thomas G. Hoffman to review the claimant’s medical records and to express opinions pertaining to the services provided to him by Petitioner. On April 10, 2000, Dr. Hoffman submitted a report that included several conclusions, including those that follow. The claimant has severe, residual deficits as a result of his accident. He requires 24-hour attendant care. There is no reasonable expectation for further improvement. The therapy he was receiving at that time (and still receives) was not reasonable or medically necessary. The therapy was excessive in frequency and duration. Dr. Hoffman’s deposition testimony was consistent with his written report. The carrier retained Dr. Victor B. Robert to review the claimant’s medical records and to express opinions pertaining to the services provided to him by Petitioner. On June 19, 2000, Dr. Robert submitted a report that included several conclusions, including those that follow. The treatment rendered by Petitioner was excessive in frequency and duration. The claimant reached an improvement plateau in early 1997 and therapy was thereafter needed only for maintenance reasons. Dr. Robert’s testimony was consistent with his written report. The carrier retained International Assessment Systems, Inc. (IAS), a professional association of various medical practitioners, to conduct an independent neurological, neuropsychological, and psychological examination of the claimant. On September 22, 2000, IAS submitted a report (Intervenors’ Exhibit 8) based on the examinations of claimant and the review of his medical records by Dr. Kenneth C. Fischer, Dr. Alan J. Raphael, and Dr. Charles J. Golden. The report included several observations and conclusions, including those that follow. The testimony of Drs. Fischer, Raphael, and Golden was consistent with the written report they prepared for IAS. Pages 12-13 of the IAS report contain the following: [The claimant] was oriented to person, but not to place or time. He did not know the current day, date, month, or year. His sensorium was significantly impaired. His mood was volatile, ranging from normal to agitated. His affect was similarly labile, at times he was placid, laughing, and able to converse at a basic level, however he was also quite violent. Attention and concentration were significantly impaired. His receptive, expressive and fluency language capabilities were similarly impaired, although, as noted, he was capable of basic/functional [sic] communication. There were no direct indications of hallucinatory or delusional phenomena, however, based on his behavior, it is likely that some hallucinatory or delusional phenomena were present. His reality testing and insight were significantly impaired. During his repeated fits of anger, he often uttered suicidal and homicidal threats, however there was no evidence of actual intent or plan. He showed no ability to monitor his own safety. Page 15 of the IAS report contains the following: From a neuropsychological and psychological perspective, there were gross impairments noted in his cognitive abilities and emotional functioning. . . . He has been afforded considerable time to maximize his cognitive recovery at this point. It is clear that he has plateaued with regard to cognitive improvement. He will not benefit from continued rehabilitation efforts, although he will require continued stimulation to avoid further cognitive decline. His mood and labile affect may also be benefited by continued stimulation in terms of recreational activities to provide appropriate quality of life.6 Page 17 of the IAS report contains the following under the heading “Neurologic Impression”: . . . I [Dr. Fischer] would recommend that he be placed in a supervised residential setting which will give better protection for him and his caregivers than his present home setting. As the patient is four and a half years status post-injury, specific rehabilitative and therapeutic endeavors will have no benefit and are unwarranted. This would relate to hyperbaric oxygen and cognitive rehabilitation was well as any form of physical, occupational, or speech therapies. Page 19 of the IAS report contains the following: [The claimant] was certainly aided by initial removal from the nursing home and receiving cognitive and physical therapies at Biscayne. However, he has long since reached a plateau in his improvement and no further improvement can be expected at this time. Maximum medical improvement should have been reached within 18 to 24 months post-injury. Any treatment after that time would be palliative or maintenance-oriented (sic). Therefore, the treatment prescribed by Dr. Wand became unreasonable and medically unnecessary several years ago. Page 20 of the IAS report reflects the opinion that while the treatments at Petitioner’s facility were excessive in all respects, the claimant does require maintenance rehabilitation services. It is opined that cognitive retraining is no longer appropriate, but that cognitive tasks and games are appropriate in a recreational setting. By letter dated October 27, 2000, the carrier, through its counsel, advised Petitioner that based on its Utilization Review investigation, it had concluded that as to the identified dates of service “. . . there has been overutilization and/or misutilization since the treatment has been excessive and not medically necessary.” This Letter of Disallowance was the first of a series of letters sent by counsel for the carrier to Petitioner, and frames the issues for all of the disallowances at issue in this proceeding. Thereafter, Petitioner timely disputed the carrier’s basis for disallowing its services to the claimant and petitioned the Respondent to resolve the dispute. The total amount disallowed and at issue in this consolidated proceeding is $615,587.00. Respondent employed four Expert Medical Advisors (EMAs) to perform peer review and assist it in resolving the dispute involving the rehabilitation services provided the claimant by Petitioner. Respondent employed Dr. Fernando G. Miranda, Dr. Jorge Villalba, Dr. Gerard P. Garcia, and Dr. David McCraney to serve as EMAs.7 Each of these doctors prepared a report following his review and each sat for deposition. Dr. Miranda’s report, dated September 17, 2001, is attached to his deposition (Intervenors’ Exhibit 17). The report included several conclusions, including those that follow. The referral for intensive multi-disciplinary treatment at Petitioner’s facility is no longer medically necessary. The services provided by Petitioner are excessive in frequency and duration and he will not further improve with speech therapy, cognitive retraining, occupational therapy, or individual psychotherapy. Maintenance physical therapy is recommended. Dr. Miranda testified in his deposition that the recommended physical therapy could be performed by the claimant’s attendant. Dr. Miranda’s deposition testimony was consistent with his written report. Dr. Villalba’s report dated October 15, 2001, is attached to his deposition (Intervenors’ Exhibit 19). The report included several conclusions, including those that follow. The claimant reached maximum medical improvement between February 1996 and October 1997. Dr. Villalba described the services provided by Petitioner to claimant “clearly not medically necessary” after October 1997. He also opined that the claimant will require maintenance physical therapy, occupational therapy, and speech and language therapy on a continuing basis. Dr. Villalba’s deposition testimony was consistent with his written report. Dr. Garcia’s undated report was prepared during the second week of October, 2001, and is attached to his deposition (Intervenors’ Exhibit 16). The report included several conclusions, including those that follow. The claimant should be on a maintenance program and Petitioner’s treatment was excessive. The claimant is unlikely to make further neuropsychological improvement, but he should be treated by a psychiatrist for his schizophrenia. Dr. Garcia’s deposition testimony was consistent with his written report. Dr. McCraney’s report dated November 18, 2001, is attached to his deposition (Intervenors’ Exhibit 18). The report included several conclusions, including those that follow. While the care provided Petitioner appears to be excellent, the claimant is far beyond the point where Petitioner’s therapies would be reasonable or medically necessary. Dr. McCraney’s deposition testimony was consistent with his written report. Dr. DiCowden testified at length about the various services her facility provides the claimant and the records her staff generates as a result of those services. Dr. DiCowden testified that her staff is well-trained in assessing the functional status of rehabilitation patients using nationally recognized assessment methodologies. FIN-FAM, acronyms for “Functional Independence Measures” and “Functional Assessment Measures” is one assessment measure used by Petitioner’s staff. The FIN-FAM measure purports to quantify a patient’s progress or lack thereof and can be used by staff as a tool in developing treatment strategies. Dr. DiCowden presented a chart of the FIN-FAM scores for the claimant for the periods at issue in this proceeding. The chart, prepared for this litigation, reflects steady functional improvement of the claimant. Dr. DiCowden further testified that Petitioner’s staff uses a scale of cognitive functioning developed by a rehabilitation facility known as Rancho Los Amigos Hospital, which measures a patient’s response to stimuli on a scale of Ranch Level I (no response) to Ranch Level VII (appropriate response). She asserts that the measurement of the claimant’s status using the Rancho methodology reflect that the claimant has improved over the years. In support of its position that the claimant steadily progressed while undergoing therapy at its facility, Petitioner presented the testimony of Drs. Antonio Puente, Vernando Batas, and Richard Kishner who observed the claimant at Petitioner’s facility on June 23, 2003, September 13, 2003, and February 24, 2004, respectively. Each of these witnesses had the subjective impression that the claimant was benefiting from therapy at Petitioner’s facility. Petitioner asserts that the FIN-FAM scores, the Rancho Levels, and the testimony of its experts establish that the claimant is benefiting from therapy. That assertion is rejected as being contrary to the greater weight of the credible evidence. The FIN-FAM scoring and the Rancho scale depend on the subjective impressions of the various therapists who treat the claimant at Petitioner’s facility and the record reflects that the scoring was done on an irregular basis.8 Dr. DiCowden adamantly disagreed with the contention that the rehabilitation services provided by her facility is not reasonable or medically necessary. All evidence presented by Petitioner, including Dr. DiCowden’s testimony, has been carefully considered by the undersigned in resolving the conflicts in the evidence. At best, Petitioner established that the claimant made some unquantified amount of progress in the highly structured therapeutic setting at Petitioner’s facility. Intervenors’ experts clearly established that any progress made by the claimant in therapy did not transcend that therapeutic setting to the real world. Petitioner failed to establish by a preponderance of the evidence that the rehabilitation services it provided the claimant were appropriate and medically necessary. To the contrary, the greater weight of the credible evidence established that at all times relevant to this proceeding the rehabilitation services provided by Petitioner to the claimant have been excessive and that those excessive services have been neither reasonable nor medically necessary.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration issue a final order that sustains the disallowances at issue in this consolidated proceeding. DONE AND ENTERED this 15th day of June, 2004, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 15th day of June, 2004.
The Issue Whether Respondent is qualified to hold a certificate as a correctional officer in the State of Florida, by failure to successfully complete the required training, as alleged in the Administrative Complaint.
Findings Of Fact The Respondent was certified by the Criminal Justice Standards and Training Commission on January 29, 1993, as a corrections officer, and was issued Certification Number 141634. On August 17, 1992 the Respondent signed up for and attended orientation for the Public Safety Recruit/Corrections course conducted by the Lake County Area Vo-Tech Center in Eustis, Florida. The contents of the Public Safety Recruit Manual was explained to the class and Respondent received a copy of the manual. The academic grading policy in the manual provides that the minimum passing grade that a student must achieve on each exam is a score of 75 percent. A student may fail only one exam and still remain in good standing at the academy. Respondent signed a Student Acknowledgment of School of Public Safety Requirements and Rules of Conduct. He acknowledged that he had read and understood them and agreed to comply with the standards. Respondent failed the Criminal Justice Standards and Training Commission defensive tactics practical examination with a score of 66. On October 27, 1992, Respondent was notified orally and in a written memorandum from the program coordinator that he had failed the examination. However, he was given until July 29, 1993 to remediate and requalify. Respondent did not take any steps to requalify in this area. On November 10, 1992, Respondent failed Block Test 1 with a score of 59. On November 13, 1992, Respondent was notified orally and in writing of his second examination failure. He was then advised that in accordance with the Master Plan of Instruction and the grading policy of the school that he was terminated from the program. Respondent's final grade for the Public Safety Program was listed as an Incomplete. Respondent was advised that he would be required to retake the entire recruit program in order for him to receive certification. A CJSTC 67 Training Report Form was completed by the Lake County Area Vo-Tech Center for the Public Safety Recruit/Corrections course sequence number 15-92-502-02 and was forwarded to the Florida Department of Law Enforcement, Division of Standards and Training in Tallahassee. The Training Report form reflects that forty-six recruits attended the course. Thirty-nine were listed as having passed and seven were listed as failed or incomplete. Respondent was listed as having failed the program. The Training Report for Respondent's class was received by the Department of Law Enforcement, Division of Standards and Training on April 12,1993. Due to a programmer's error, the Florida Department of Law Enforcement, Division of Standards and Training's Automated Training Management System (ATMS) computer system automatically generates a certificate and certificate number when an individual who is employed is entered into the system regardless of the grade achieved. The procedure in place at the time required a Department employee to visually scan the certificates being generated and remove the ones for those persons who had failed or did not complete the program. Respondent was employed at the time his name was entered into the ATMS. The ATMS generated a certificate with Respondent's name on it, Certificate Number 141634. Respondent was certified as a corrections officer as of January 29, 1993 and the certificate was forwarded to him. Respondent was certified by the Criminal Justice Standards and Training Commission in error and the certification should be revoked.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent has failed to complete a commission-approved basic recruit training program, as required by Subsection 943.13(9), Florida Statutes (1993), and that Respondent's certification must be REVOKED. DONE AND ENTERED this 16th day of November, 1995, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 16th day of November, 1995. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's proposed findings of fact. Accepted in substance: paragraphs 1 - 17 Respondent did not submit proposed findings of fact. COPIES FURNISHED: Michael Ramage General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 A. Leon Lowry, II, Director Division of Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 Karen Simmons, Esquire Florida Department of Law Enforcement P.O. Box 1489 Tallahassee, Florida 32302 John Dubose 242 West 6th Street Apopka, Florida 32702
Findings Of Fact James D. Alford, III, was initially employed by the Board of Education in the Public Schools of Duval County, Florida during January of 1973. Respondent holds teacher's certificate no. 333009, graduate, rank 3 and is a graduate of Tuskegee Institute where he received a B.S. Degree in Industrial Arts. For approximately two and one-half years subsequent to January, 1973, he was assigned to southside Junior High School as an Industrial Arts Special Education Teacher in a pilot program. It appears that there is no difference in the qualification required for teachers of industrial arts in special education programs as opposed to other industrial arts teachers that are certified in industrial arts. In addition to his employment with the Duval County School Board, Respondent served in a student teacher training program for nine weeks in Montgomery, Alabama. Respondent, during his assigned duties for the Duval County School Board, taught a special education industrial arts class consisting of seventh, eighth and ninth grade students. He trained students how to safely use tools and to perform projects requiring the use of industrial arts tools. He assigned students projects based on their manipulative skills. He noted that "special ed" students had to be trained to use even the simplest tools such as hand saws. Respondent testified that discipline was a major problem in teaching "special ed" students and that for the first and/or minor offense, he attempted to discipline students by verbal commands and that when that failed he sent students to the Dean's Office. He denied ever using physical force to punish students for unruly conduct. His testimony is that his only physical contact with students was to restrain them from physical acts and it suffices to say that he denied all of the allegations filed by the Council in its petition to revoke his teaching certificate. Respondent was aware of the Board's policy respecting discipline and testified that he never administered corporal punishment to students. Following altercations with two students during late 1974, Respondent was offered transfers on at least two occasions which he declined because he "had recently received approximately $5,000.00 of new shop equipment" and further that he wanted to remain at Southside for a sufficient period in order to administer in a smooth and efficient manner the special ed industrial arts program at Southside. The first significant incident involving the Respondent occurred during December of 1974 during an altercation with one of his students i.e., Gary Roary. According to Respondent, Roary initially hit him whereupon he retaliated by striking him back. Roary then left the room, picked up a two by four and returned to the classroom where Roary attempted to hit Respondent. Respondent, in an effort to snatch the two by four from Roary, shoved him causing him to fall on a saw. Roary sustained an injury which required three sutures at the emergency room at a local hospital. Respondent states that he did not know that Roary had injured himself until he was later called to the office where he was told to meet with Mr. Buford Galloway. The Principal, J. R. McDaniel, investigated the incident involving Gary Roary and concluded that Respondent was "rather rough with Gary". See Petitioner's Exhibit #1. Respondent testified that the incident occurred during a demonstration of a "boomerang" that he had constructed to motivate students to make one. He first threw the boomerang and then a student threw it. When the student threw the boomerang, it struck a teacher's car which resulted in a scratch. One of the students relayed this information to the teacher involved, Ms. Williams, whose car was parked near the shop area. A brief uproar resulted when the boomerang struck Ms. William's car and Respondent grabbed Willie Critton, another student by the front of his shirt. Roary yelled for Critton to hit Respondent and evidence revealed that Respondent retorted by saying "hit me, hit me," when Roary said "hit him". Respondent released Critton and grabbed Roary and this brought about the above incident in which Roary sustained the cut. Respondent admits to pushing Roary and striking him on the right shoulder stating that this was done in self- defense. He acknowledged that it was probably a mistake for him to hit Roary. Following this incident, Respondent was transferred to another school for the remainder of the school term. Marilyn Bagby, a program coordinator for mentally retarded for the Duval County School Board testified that she has known Respondent since 1972, and that during a visit to one of his classes, she saw a student roaming the hallway in front of his class. She testified generally that she was able to determine that students had been left out in the hall for periods up to approximately three weeks. However Mrs. Bagby was not specific in her testimony respecting these incidents and for these reasons, little weight can be attached to her testimony. Lowell T. Hudson, Industrial Arts Superintendent for the Duval County School Board, testified that the Respondent's class was properly equipped and that during his visits to Respondent's class, he noticed discipline problems. Mr. Hudson was involved in one conference concerning the disciplinary procedures utilized by Respondent and during a subsequent incident, Respondent was transferred. Joseph R. McDaniels, the Prinicpal at Southside High for approximately four years and an employee for approximately 19 years testified respecting approximately five conferences concerning Respondent and his disciplinary techniques. On three of these conferences, he wrote memos respecting the details of such conferences. He explained the City wide disciplinary policy to Respondent and cautioned him against using corporal punishment to discipline students. He recalled that two conferences occurred during May of 1974 and a third conference occurred during December of 1974. Ms. Eleanor Williams, the instructor whose car was struck by the boomerang which was thrown by one of Respondent's students, testified that Respondent assisted her on one occasion in a dispute with a student who was fighting another student. Respondent requested that Ms. Williams go to his office to obtain his stick which she refused and thereafter he asked the students to go get his stick. She testified that one student who was involved in the altercation had a paring knife. Respondent, in an effort to break up the students, swung at one student and missed striking a refrigerator and a bread box resulting in a dent in the refrigerator of approximately eight inches. Respondent, according to Ms. Williams, never requested that the students stop fighting. Instead Respondent kicked one of the students, Tim Walden, and Don Jones, the other student who was involved was struck in his face. At that time, several instructors were summoned who restrained Respondent from further hitting the students. 1/ Willie J. Critton, a 16 year old eleventh grade student attended shop classes with Respondent during his eighth grade school year. He testified that on numerous occasions, Respondent bent his fingers back and twisted his fingers. He further testified that it was common practice for Respondent to expel students from his class room and force them to stand outside in the hallway. Gary Roary was called and testified substantially as other witnesses who gave testimony on the boomerang incident during December of 1974. Specifically, he testified that Respondent hit Willie Critton and thereafter grabbed him. During the above incident, he was shook by Respondent and struck in the mouth. When he broke away from Respondent, he left the classroom, obtained a stick and entered the room. Upon his return, he swung at Respondent and fell when Respondent shoved him and his head struck a saw. This resulted in the cut referred to above which required three stitches. Betty Allison, a qualified expert in mental retardation, testified that while discipline is a problem in teaching EMR students (Educable Mentally Retarded), she objected to the disciplinary procedures utilized by Respondent calling them inappropriate in EMR situations. She testified that to be effective, EMR instructors must devise well organized lesson plans and that classroom instruction must be motivating in order to secure and retain the students' attention. Other witnesses testified that EMR students cause more discipline problems than others and generally testified that Respondent was effective as most instructors in teaching EMR students. Section 231.28, Florida Statutes, 1975, empowers the Department of Education to suspend or revoke a valid Florida Teaching Certificate held by an individual who is committing or has committed certain acts or omissions which justify revocation or suspension on grounds enumerated in the statute. One of the grounds as provided in the statute exist when the teacher, upon investigation, has been found guilty of personal conduct which seriously reduces his effectiveness as an employee of the School Board. Here the Petitioner seeks revocation of the Respondent's teacher's certificate based on the fact that he has allegedly engaged in numerous offensive activities, which has seriously impaired and reduced his effectiveness as an employee. After careful consideration of all the evidence adduced herein, the testimony of witnesses and the arguments of counsel, I conclude that the disciplinary measures used by the Respondent departed from the county's established procedure for disciplining students and despite repeated warnings that he refrain from corporally punishing students, he continued to do so. His conduct in the Gary Roary and Willie J. Critton incident on December 3, 1974, is exemplary of his disciplinary methods. Based thereon and the entire record herein, I find that Respondent's usefulness as a teacher-employee has been reduced within the meaning of Section 231.28, Florida Statutes.
Recommendation Based on the foregoing finding of facts and conclusions, I hereby RECOMMEND: 1. That the Respondent's teaching certificate be suspended for a period of one year. DONE AND ENTERED this 10th day of May, 1977, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
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 The issue is whether the Florida Department of Education (“the Department”) committed one or more unlawful employment practices against Petitioner (“Ms. Spradlin”) by discriminating against her based on race.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following Findings of Fact are made: Ms. Spradlin worked from 2006 to 2010 as a psychological specialist at a facility known as Sunland in Marianna, Florida. Ms. Spradlin is Caucasian. During a portion of the time that Ms. Spradlin was at Sunland, Tawana Gilbert worked there as a human service administrator. Ms. Gilbert is African-American. Ms. Spradlin and Ms. Gilbert did not work closely together, but they served on the same interdisciplinary team and worked with the same residents. Ms. Gilbert’s only knowledge of Ms. Spradlin was through the documentation that Ms. Spradlin submitted to the interdisciplinary team. Ms. Gilbert left Sunland in approximately November of 2009, and began working for the Department as a unit supervisor for a vocational rehabilitation services unit in Marianna, Florida. Vocational rehabilitation assists people by providing them with services that enable them to obtain and maintain gainful employment. During the time period relevant to the instant case, the Marianna unit had 10 staff members and served five counties. Of those 10 staff members, five were counselors and one was the unit supervisor. At some point after Ms. Gilbert left Sunland, Ms. Spradlin saw an advertisement for an entry level vocational rehabilitation counselor position at the Marianna unit. Ms. Spradlin applied for the position and was hired in 2010. In March or April of 2011, Ms. Gilbert invited all of her coworkers to a special event at her church. Ms. Gilbert asked her coworkers with children if their child would like to participate in a program that was to be part of the festivities. Ms. Spradlin said that her daughter was willing to participate, and Ms. Gilbert typed out the words that Ms. Spradlin’s daughter was to recite during the program. When it was time for Ms. Spradlin’s daughter to recite her part, she became nervous, and her grandmother read the part. Following this event, Ms. Spradlin asserts that Ms. Gilbert’s attitude toward her changed and that the unlawful employment practices alleged in her Charge of Discrimination began. Findings Regarding Ms. Spradlin’s Interviews for Senior Counselor Positions There were two openings for senior vocational rehabilitation counselors at the Marianna unit in October of 2012.1/ When the Department is considering applicants for a particular position, it utilizes a three-person panel to conduct interviews and score the applicants. After the interviews, the three-person panel reaches a consensus as to each applicant’s scores, and the Department uses a standardized matrix to rank each applicant. The panel for the two senior vocational rehabilitation counselor openings consisted of Allison Gill, the Department’s area supervisor; Michael Nobles, the former supervisor of the Marianna unit; and Ms. Gilbert. Ms. Gill and Mr. Nobles are Caucasian. Of the five people who interviewed for the two openings, Ramonia Robinson earned the highest score, a 72. With regard to Ms. Robinson’s qualifications, Ms. Gilbert testified as follows: Ms. Robinson, she was a current employee there. She was an entry-level counselor, had been for many, many years. She was there prior to my hiring with VR, so I was familiar with her work history. And she was very thorough, very detailed, very flexible, and very unemotionally involved with her cases. So she, in conducting her cases and case management, was awesome. And she was very knowledgeable about the questions that were being asked. She had had a long history of experience with case management, providing services to individuals with disabilities, and just adequately managing her caseload. She did very well on her interview. Ms. Spradlin received the second highest score, a 56. Keith Sutton, an outside applicant, received a score of 55. When two applicants’ scores are within one point of each other, the Department bases the ultimate hiring decision on reference checks. Ms. Gilbert contacted Mr. Sutton’s references and received positive feedback about him. As for Mr. Sutton’s qualifications, Ms. Gilbert provided the following testimony: Q: What about Mr. Sutton’s experience, resume was notable to you in the interview process? A: Well, he had his degree. It’s directly related to the field of counseling. He had a wealth of experience in the counseling field. He came to us from the Agency for Persons with Disabilities, which is Sunland, where he had a year there, and he met at least the minimum qualifications. He was very – his application was very detailed, and it identified precisely his experience based on his ability to – or his experience with providing counseling, providing services for those with disabilities. And he had a long history from where he had previously worked in the field of counseling. Q: Okay, so Mr. Sutton achieved a Master’s in Counseling in 2011, is that correct, according to his application? A: Yes. Q: And that’s directly related to the position; is that correct? A: Yes, that’s correct. Q: And he had experience as a master’s level therapist? A: Yes. Q: Is that accurate, according to the application? A: Yes. He worked for Florida Therapy as a master’s level therapist, where he was expected to provide counseling, psychotherapy to children, adults and their families, but doing so on an independent basis. That demonstrated he was very flexible, detailed oriented and [had] the ability to function independently. Because she was Ms. Spradlin’s supervisor at the time, Ms. Gilbert acted as her reference and did not recommend her for a senior counselor position. In explaining her reasoning, Ms. Gilbert testified that: Ms. Spradlin was difficult to work with and she was very negative. She had several participant complaints during the span of [] that year. In her first year coming in, she was very challenging, she did not want to accept constructive criticism from me as the unit supervisor. She did not want very – she wanted very little feedback from me based on her performance. Several participant complaints, calling me directly, contacting the ombudsman, faxing me complaints based on their interaction with Ms. Spradlin, how they felt that they were being treated unfairly, they did not agree with her tone from time to time. She was not at all culturally sensitive to some of our participants. She was insubordinate. She would – there were times she would just leave the unit because things – conditions were unfavorable to her. Ms. Gilbert submitted her recommendation to the Department’s area director, and Mr. Sutton was ultimately offered a senior counselor position. Mr. Sutton is currently the supervisor of the Marianna unit. There is no persuasive evidence that Ms. Spradlin was not promoted because of her race or any animus from Ms. Gilbert. The interview panel, consisting of two Caucasians, had legitimate, nondiscriminatory grounds for concluding that Ms. Robinson and Mr. Sutton were more qualified for the openings. In short, the greater weight of the evidence demonstrates that there was no unlawful employment practice associated with the Department’s selection of applicants for the two openings discussed above. In May of 2016, Ms. Spradlin applied for another senior counselor position in the Marianna unit. The interview panel for this opening consisted of Ms. Gilbert and two other Department employees, Evelyn Langmaid and Rebecca Stevens. Ms. Langmaid and Ms. Stevens are Caucasian. Ms. Gilbert did not supervise Ms. Langmaid or Ms. Stevens, and she did not attempt to influence their decision-making. Georgia Britt received the highest score from the interview panel and was offered the senior counselor position. Ms. Langmaid described Ms. Britt’s interview as follows: She just came in and every answer we’d or every question that we gave her she was just right on with the answers and [was] hitting the points on the – because we have sort of like a little sheet that we can look for certain points that we’re looking for answers, and she was just right on every point, and was very, very knowledgeable of what was going on. Ms. Spradlin had obtained a certified rehabilitation counseling certification in October of 2014, and Ms. Britt lacked that certification. However, Ms. Britt’s other credentials bolstered her application. For instance, she has a bachelor’s degree in elementary and special education and a master’s degree in counseling. Ms. Britt also had relevant work experience. When she applied for the senior counselor position, Ms. Britt was employed at Sunland as a behavior specialist working with adults with developmental disabilities. Ms. Britt wrote in her application that she had been able to “work with all different types of individuals at all intellectual levels” via her position at Sunland. Prior to working at Sunland, Ms. Britt had worked in a children’s psychiatric hospital in Dothan, Alabama. That position also gave her an opportunity to work with individuals from diverse backgrounds. Ms. Britt wrote on her application that her position at the hospital required her to engage in some counseling and that she had to use counseling skills in order to obtain psychiatric histories and other information. Ms. Britt’s interview bolstered her application. According to Ms. Langmaid, Ms. Britt “blew it out of the water. She was fantastic on the interview.” Ms. Gilbert was also very complimentary of Ms. Britt’s interview: Q: What about Ms. Britt stood out to you and the panel? A: Her ability to respond to the questions as they were being asked. At that time, we were transitioning to where we were asking more emotional [intelligence] questions where – to identify a counselor’s ability to emotionally manage cases and refrain from being emotionally involved with that case. So she answered the questions. It’s on ones that can give a thorough answer based on the circumstance that occurred, the actions that took place and the results of the question. Q: Okay. A: She was really, really thorough with her answers. There is no persuasive evidence that Ms. Spradlin did not receive the promotion because of her race or due to any animus from Ms. Gilbert. The interview panel, consisting of two Caucasians, had legitimate, nondiscriminatory grounds for concluding Ms. Britt was more qualified for the opening. In short, the greater weight of the evidence demonstrates that there was no unlawful employment practice associated with the Department’s selection of Ms. Britt. Findings Regarding Ms. Spradlin’s Hostile Work Environment Allegations Ms. Spradlin made several allegations during the final hearing that she was subjected to a hostile work environment during her time with the Marianna unit.2/ For example, in October of 2010, Ms. Spradlin exposed at least part of her posterior to a coworker in the Marianna unit in order to demonstrate the severity of a sunburn. Ms. Gilbert did not learn of that incident until another incident was reported to her on May 2, 2011. That day, Ms. Spradlin was seated in an office within the Marianna unit when a female coworker got very close to Ms. Spradlin and “twerked” in her face. Ms. Spradlin states that she placed her hands on the coworkers posterior and playfully pushed her away. However, the coworker reported to Ms. Gilbert that Ms. Spradlin had pinched her posterior. Upon learning of both incidents, Ms. Gilbert discussed them with Ms. Spradlin and conferred with the Department’s labor relations unit on formulating a proper course of action. With input from the labor relations unit, Ms. Gilbert issued a counseling memorandum to Ms. Spradlin on October 4, 2011.3/ The counseling memorandum4/ read in pertinent part as follows: You are being issued a Counseling Memorandum for your violation of Rule 60L- 36.005(2)(f)(1), Florida Administrative Code (F.A.C.), Conduct unbecoming a public employee. On October 12, 2010, you signed the Department’s Acknowledgement Form stating you received copies of the policies and rules of the Department. Please be aware that you are expected to abide by all Standards of Conduct as stated in 60L- 36.005, F.A.C. On May 2, 2011, you violated the following rule and policy: Rule 60L-36.005(2)(f)(1), F.A.C., requires that “Employees shall conduct themselves, on and off the job, in a manner that will not bring discredit or embarrassment to the state. Employees shall be courteous, considerate, respectful, and prompt in dealing with and serving the public and co-workers.” On May 2, 2011, it was reported by one employee that you pulled your pants down exposing your buttocks and “mooned” that employee. Another employee informed me that on that same day you pinched her on her buttocks. After I was told about these incidents that day, I counseled you and informed you that this was inappropriate behavior and it was explained that your actions were unacceptable. This type of conduct is not conducive to a satisfactory work environment. Your conduct has adversely impacted the morale and efficiency of your unit and the Department, is detrimental to the best interests of the state and Department, and adversely affects your effectiveness with the Department, as well as your ability to continue to perform your job. This behavior must cease immediately. Should you continue conduct unbecoming a public employee, disciplinary actions, up to and including dismissal may be taken. Ms. Spradlin signed the counseling memorandum on October 4, 2011, and added the following comments: These two incidents happened on [sic] different persons. The incident w/ “mooning” was with [a] coworker after I incurred a severe sunburn. It was done only to show my burns not to offend her. She sobbed – I was not wearing pants – skirt instead. On the second occasion w/co-worker E.R. she put her buttocks in my face, playing around, & I pinched it as if to express my willingness to play as well. It was provoked – not done in an offensive manner. I understand that this type of behavior is not accepted in my work environment. They were done in a playful uplifting manner, not intentional. However, I will refrain from this behavior as I have obviously offended my colleagues. Another allegation of disparate treatment concerned an incident with a Department client named B.H., who Ms. Spradlin assisted with enrolling in nursing school. B.H. arrived at the Marianna unit one day without an appointment and reported that he wanted to do something other than nursing. Ms. Spradlin asserts that B.H. got aggressive when his requested changes could not be accomplished immediately. Ms. Spradlin further asserts that she became afraid, threatened to call 9-1-1, and managed to get past B.H. and into the hallway outside her office. Ms. Gilbert heard the commotion and called the police. By the time the police arrived at the Marianna unit, B.H. was very calm, and Ms. Gilbert concluded there had been no need to call law enforcement. While Ms. Spradlin asserts that she became an object of ridicule in the Marianna office for overreacting, Ms. Gilbert asserts that she was ridiculed for failing to give the address of the Marianna office when she called 9-1-1. As another example of disparate treatment, Ms. Spradlin cites an incident on November 14, 2013, involving a cigarette butt. Ms. Spradlin was in Ms. Gilbert’s office and dropped a cigarette butt into a trashcan. According to Ms. Spradlin, Ms. Gilbert demanded that she remove the cigarette butt and forced Ms. Spradlin to search through used tissues for the cigarette butt. Ms. Gilbert acknowledged that she asked Ms. Spradlin to remove the cigarette butt from the trashcan, but she credibly denied berating Ms. Spradlin or yelling at her. According to Ms. Gilbert, Ms. Spradlin was able to quickly remove the butt from the trashcan and was not upset about having to do so. Ms. Spradlin made several other allegations about how Ms. Gilbert gave African-American employees in the Marianna unit preferential treatment. For example, Ms. Spradlin alleges that she was required to handle more cases and incur more travel than her African-American coworkers. With regard to her travel reimbursements, Ms. Spradlin alleged that Ms. Gilbert refused to account for all the miles she traveled. Ms. Spradlin further asserts that Ms. Gilbert subjected her to disparate treatment by requiring her to maintain more documentation of her daily activities, inundating her with e-mails inquiring about the status of her work, and being less lenient regarding Ms. Spradlin’s use of flex and leave time. Ms. Gilbert testified that she has never denied a request for annual leave and that she approved the majority of Ms. Spradlin’s requests for flex time, even though Ms. Spradlin did not follow the proper procedure for making such requests. As for the other allegations mentioned above, Ms. Gilbert credibly testified that she did not subject Ms. Spradlin to any disparate treatment. Finally, Ms. Spradlin alleges that Ms. Gilbert unfairly administered a system by which counselors within the Marianna unit shared their successful cases with African- American counselors who had fewer successful cases. This system was implemented because counselors within the Marianna unit were expected to have a certain number of successful cases. Ms. Gilbert credibly denied that the system was administered unfairly: Q: Ms. Gilbert, do you ever ask counselors to donate their successful cases or case numbers to other counselor? A: I never asked counselors specifically to do that. I did discuss it with the unit, with our team as an option. Q: Okay, and why would that be an option they may want to do? A: Well, the way Vocational Rehabilitation operates is a person has to be on their job a minimum – a minimum of three months, okay, 90 days, to consider that person as successfully rehabilitated. And that was a measurement. That was an expectation on each counselor’s performance evaluation, that they had to get so many successful rehabs within one year. So someone that’s being hired and coming to Vocational Rehabilitation in the middle of the year, they don’t have that opportunity to monitor that person for 90 days, if they don’t already have someone that’s in that employment status ready to begin monitoring. So it’s difficult. But I did not want that to be a negative reflection of a counselor that’s really trying and that’s working their caseload and trying to get their successful rehabs. So I would ask counselors once they’ve received all of their rehabs and they close enough people successfully that allows them to get the most maximum score that they can get on their evaluation, I would ask them if they wanted to, share those rehabs with someone that’s probably a new counselor or that’s just having a difficult time with obtaining their successful rehabs. Q: Okay. And so Mr. Sutton’s first year, might he have received some successful numbers donated to him from other counselors? A: That is a possibility. Q: Okay. Did Ms. Spradlin ever receive any successful numbers donated to her when she had a lower number? A: Yes. * * * Q: Okay. And so that number of successes or successful rehabilitations is important to counselors? A: Absolutely. Q: Because they are – are they evaluated on that each year in their yearly performance evaluation? A: Yes. Each level of counselor, if you’re an entry-level counselor, your first year you may be expected to get five. Those numbers are prorated. So the cutoff period is last business day of June, so if you have a new counselor that starts in February or March, they’re at a disadvantage, they don’t have the time. Time works against them. But if they are involved with their cases and they are trying to work their cases, I felt that it was only reasonable to assist them. * * * Q: Okay, so you said that Ms. Spradlin would have received a donation of successful cases maybe early on in her career? A: Yes. Q: Did she donate cases once she became a more proficient counselor? A: I’m pretty sure she did. Q: And did you specifically ask her to donate cases to any particular employee? A: No. Ms. Spradlin resigned from the Department on August 10, 2016. There is no sufficiently persuasive evidence to support Ms. Spradlin’s disparate treatment claims. The greater weight of the evidence demonstrates that Ms. Spradlin was not subjected to any disparate treatment during her tenure in the Marianna unit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing Petitioner’s Petition for Relief. DONE AND ENTERED this 24th day of July 2018, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of July 2018.
Findings Of Fact The Respondent's Employment. The Respondent, John Daniel Faughn, is a Labor and Employment Training Specialist for the Department of Labor and Employment Security (hereinafter referred to as "LES"), and has held that position since 1981. (Stipulated Fact). Mr. Faughn served as a contract manager for LES for approximately two years: 1988 and 1989. (Stipulated Fact). At all times relevant to this proceeding, Mr. Faughn was an "employee of an agency" subject to Section 112.313(6), Florida Statutes. Mr. Faughn worked in the Bureau of Job Training of LES. Mr. Faughn's immediate supervisor was Glenn Chilcote, a Specialist Supervisor at the time. Mr. Chilcote's immediate supervisor was Julian Spradlin. Mr. Spradlin's immediate supervisor was Shelton Lee Kemp, then Bureau Chief of the Bureau of Job Training. The Duties of an LES Contract Manager. The duties of an LES Contract Manager included negotiating contracts between LES and contractors to provide services involving the placement of individuals into employment positions, providing technical assistance requested by the contractor, receiving training and placement information from the contractor, and handling invoices submitted by the contractor once placement was made. (Stipulated Fact). Although it was not a contract manager's responsibility to verify all the information provided by the contractor, contract managers did have a general duty to inquire about information which seemed out of line. (Stipulated Fact). CARE, Inc. and Eugene Wood. CARE, Inc., (hereinafter referred to as "CARE"), is a corporation. "CARE" is an acronym for "Center for Aging Research and Education". Eugene Wood was the President of CARE from at least October 10, 1988, to May 1, 1989. (Stipulated Fact). On May 1, 1989, Mr. Wood sold CARE to Mary Lookadoo, a former program participant, and her daughter and granddaughter, for the sum of $1.00. (Stipulated Fact). The weight of the evidence failed to prove that Mr. Faughn was aware of the sale. LES's First Contract with CARE. LES administered federal Title III grant money in 1988 and 1989. Title III grant money was provided to the states for the purpose of increasing employment of individuals, particularly the disabled or long-term unemployed. Grant money for the foregoing purpose was used to pay for training and assistance to be provided by contractors to individuals in order to place them in the work force. LES and CARE entered into a contract (hereinafter referred to as "Z3248"), providing for the payment of Title III grant funds to CARE for providing certain services specified in the contract between LES and CARE. Mr. Faughn was the contract manager for Z3248. (Stipulated Fact). Z3248 was for the period November 1, 1988, through October 31, 1989. (Stipulated Fact). Pursuant to Z3248, CARE was to be paid for any eligible person placed by CARE in unsubsidized employment after a training period. The placement had to be for a minimum of 30 days of "unsubsidized employment". LES agreed to pay CARE an average of $2,317.29 per placement for a maximum of 14 placements. CARE agreed to provide up to 14 placements for 30 days of unsubsidized employment after appropriate training and supervision. CARE also agreed to provide $35,205.00 in matching contributions, including "in- kind" contributions and $4,410.00 in on-the-job-training salaries. Z3248 was "performance based." That is, CARE was to only received payment for successfully placing qualified persons in employment positions. LES' Second, Indirect, Contract with CARE. In 1989 LES and the Department of Health and Rehabilitative Services (hereinafter referred to as "DHRS"), were involved in a contract for $612,000.00 of federal Title III funds to provide job training and placement in employment of mentally handicapped individuals. Mr. Faughn was the contract manager for this contract, Z3458. DHRS in turn contracted with Florida Community College, Jacksonville, Florida, for administration of Z3458. Florida Community College in turn contracted with the Florida Alliance for Employment of the Handicapped (hereinafter referred to as "FAEH"). (Stipulated Fact). In March, 1989, FAEH was interested in finding service providers for Z3458. A contract between FAEH and CARE was ultimately entered into on May 4, 1989. CARE was to receive approximately $2,300.00 for each placement. (Stipulated Fact). Mr. Faughn's Relationship with Mr. Wood and CARE and His Motive to Benefit Them. Mr. Faughn met Mr. Wood during negotiations for the first contract, Z3248. Mr. Faughn and Mr. Wood became personal friends while Mr. Faughn was the contract manager for Z3248. There were occasions when they stayed as overnight guests in each other's homes. Mr. Faughn stayed with Mr. Wood in San Mateo, Florida, where CARE was located, after Z3248 ended. Mr. Faughn, while still the contract manager for Z3248, believed that he would be going to work for Mr. Wood. Mr. Faughn informed Carol Ann Breyer, then Executive Director of the Florida Alliance for the Employment of the Handicapped, that he was considering going to work for Mr. Wood on a child day- care center project. Mr. Faughn told Lucy Shepard, a Senior Management Analyst II with the Department of Health and Rehabilitative Services, that he would probably be going into business with Mr. Wood. Mr. Faughn, during the time that he was contract manager for Z3248, informed his Bureau Chief, Mr. Kemp, that he was resigning to go to work for Mr. Wood. Mr. Faughn later, however, informed Mr. Kemp that the job did not materialize and requested that his resignation be rescinded. Mr. Faughn, again during the time that he was contract manager for Z3248, informed Mr. Wood of two modest houses in Tallahassee, Florida. Mr. Wood expressed an interest in acquiring the houses and Mr. Faughn assisted Mr. Wood in the purchase of the houses by showing the houses to Mr. Wood and informing him of who owned them. Mr. Faughn performed work on the two houses purchased by Mr. Wood, including constructing a porch on one, pressure cleaning and painting both, replacing a door and removing trash. The evidence concerning Mr. Faughn's purpose in working on the houses owned by Mr. Wood and, whether Mr. Faughn was paid for his work, was conflicting. Mr. Faughn's prior statements and his testimony at the final hearing of this case concerning the houses indicate a lack of candor on his part. His explanation of why he performed the work and whether he was paid is, therefore, rejected. Mr. Faughn maintained at the final hearing that he simply performed the work on the houses out of friendship. He also maintained that there was no "formal agreement" concerning the work he was to perform or his compensation. In his deposition testimony, Mr. Faughn indicated that there was never anything "firm" about being paid an hourly rate for his work and that he was never paid. Mr. Faughn gave Mr. Kemp and Mr. Spradlin the impression that he was working on the houses because he had an interest in the houses and would share in any profits when they were sold. Mr. Faughn's denial of having made such statements is rejected. Mr. Faughn told William Geier and Bonita Stokley of LES's Office of the Inspector General that he was to be paid an hourly wage for his work on Mr. Wood's houses. Mr. Faughn's later denial that these statements were correct is rejected. Based upon the weight of the evidence, it is concluded that Mr. Faughn performed work on the houses because he believed he would be compensated in some manner for his effort. Mr. Faughn believed that he would receive an hourly wage, would share in the profits from the sale of the houses or that he would be employed by Mr. Wood in some venture. In all likelihood, Mr. Faughn expected to and, as explained, infra, did receive an hourly wage. Mr. Faughn received a check for $4,500.00 dated August 4, 1989, from Mr. Wood. The check was deposited in Mr. Faughn's personal credit union account. Mr. Faughn's explanation of what the $4,500.00 check he received from Mr. Wood was for and even whether the check existed has varied throughout the investigation and the hearing on this matter. Mr. Faughn's explanation varied depending on who he discussed the matter with: At the final hearing Mr. Faughn testified that the check was merely a reimbursement for materials and supplies used during his work on the two houses. Prior to the final hearing Mr. Faughn failed to inform investigators from LES during questioning that he was reimbursed any amount. Mr. Faughn told an investigator for the Commission that he had only received $300.00 in reimbursement for supplies and materials. His testimony that he had forgotten about the $4,500.00 check is not credible. Mr. Faughn's testimony in his deposition and at the final hearing and his statements to the Commission's investigator concerning the nature of the work he performed on the houses was also inconsistent. After considering all the evidence concerning the $4,500.00 check, it is concluded that Mr. Faughn was paid the $4,500.00, at least in part, as compensation for his services to Mr. Wood for work on the two houses. Based upon the foregoing, it is concluded that Mr. Faughn's relationship with Mr. Wood, the payment by Mr. Wood for work performed by Mr. Faughn, and Mr. Faughn's hope and belief that he would become an employee of Mr. Wood gave Mr. Faughn reason and motive to act in the interest of Mr. Wood and CARE. By acting on behalf of Mr. Wood and CARE, Mr. Faughn was acting on his own behalf. The Performance of Mr. Faughn's Duties: Mr. Faughn's Recommendations to Expand Z3248. Z3248 initially provided that up to $32,442.06, was available for payment to CARE. This amount was increased, in December, 1988, to $64,884.12. (Stipulated Fact). The number of placements to be made by CARE was also increased to 28. The first increase in Z3248 came about after Mr. Kemp informed Mr. Wood by letter dated November 30, 1988, of the availability of additional job placement units which CARE could apply for. Shortly after Z3248 was doubled in December, 1988, Mr. Faughn approached Mr. Spradlin and recommended that the contract be doubled a second time. The second recommendation to increase Z3248 was denied by Mr. Spradlin. Mr. Spradlin declined approval because he thought that there were certain costs incurred by contractors which did not increase as the number of participants increased. Therefore, as the number of participants increased, the amount of a contractor's profit per participant increased. Mr. Spradlin did not believe this was appropriate. Mr. Faughn was upset with Mr. Spradlin's denial of the second request to increase Z3248. Mr. Spradlin, who indicated that most contract managers tend to support the contractors of the contracts they manage, was surprised at the level of Mr. Faughn's interest in the increase. The weight of the evidence proved that Mr. Faughn's actions in recommending the second increase in Z3248 were inconsistent with the proper performance of his public duties. Although it was not inconsistent for a contract manager to recommend that a contract be increased, Mr. Faughn's reaction to Mr. Spradlin's decision not to approve the second increase coupled with Mr. Faughn's motive for benefiting CARE and Mr. Wood supports a conclusion that Mr. Faughn did not recommend the second increase as part of the performance of his public duties. Instead, Mr. Faughn's recommendation to increase Z3248 was made corruptly. The Performance of Mr. Faughn's Duties: Review of Training Hours. The contract for Z3248 (Respondent's Exhibit 5) contained the following relevant provisions concerning training required by CARE: CARE was to provide Employability Skills Training, Occupational Skills Training and On-the-Job Training (hereinafter referred to, respectively as "EST", "OST" and "OJT"). As is normally the case with these type contracts, it was contemplated in the Z3248 contract that EST would be completed before participants began unsubsidized employment: Upon completion of training, participants will then put their skills to practical use by searching for jobs and having actual personal contact with employers. . . . [Emphasis added]. Page 6, Respondent's Exhibit 5. It was contemplated in the contract that OJT would require 8 to 10 weeks to provide: While some training may be limited to the minimum of two weeks, it is anticipated that clients will require between 8-10 weeks of training. Page 7, Respondent's Exhibit 5. Customized training was also a possibility under the contract: This training may be used for the needs of the employer with a written commitment from an employer to employ the trainee after successful completion of training. The predominate activity will be on-the-job training, but could include classroom training. Page 7, Respondent's Exhibit 5. Finally, the contract provided that "[t]he average length of training for OST/EST/OJT should average 235 hours for each participant." Page 12, Respondent's Exhibit 5. It is to a contractor's advantage to report higher training hours. As part of its contract with LES, CARE was required to forward LES Form 104 to Mr. Faughn each time a participant was placed in employment. (Stipulated Fact). This form was used as an invoice for payment for the placement of a participant in 30 days unsubsidized employment. CARE was also required to file LES Form MIS 2. Form MIS 2 was to be used to report, among other things, each participant's date of enrollment, any change in status and the date of termination. The contract also required that "[i]f the contractor is the OST training agency, the participant's total training hours for EST and OST and/or OJT (whichever applies) must be written on the bottom of the MIS 2 Form for termination." Page 13, Respondent's Exhibit 5. CARE filed MIS 2 Forms for its participants and reported the enrollment and termination date for each participant and the hours of EST, OST and OJT (although the training hours information was not included at the bottom of the page). See Advocate's Exhibit 7. CARE also filed an LET 104 Form for its participants. On the LET 104 CARE was to report, among other things: Block 6: The date that the participant began unsubsidized employment. Although it is possible that training can continue after this date, this date is usually a date after all training has ended. It would be very unusual and unlikely that training continued after the date unsubsidized employment began. Block 8: The starting and ending date for OJT. Block 11: The "Total Hours Trained." There was conflicting testimony as to what the information contained in this part of the form signifies. Based upon the weight of the evidence (primarily the testimony of Carol Marks of LES's Bureau of Job Training Compliance and Mr. Chilcote), more information concerning a contract is needed to determine what the information means. Blocks 13 and 15: Finally, the date the form is signed. This date should be at least 30 days after the date unsubsidized employment began. The purpose of the LET 104 was to certify that a participant had completed the required 30 days minimum of unsubsidized employment. Meeting this requirement entitled CARE to payment of $2,317.29 per participant. To determine if CARE was entitled to payment, the date the LET 104 was signed had to be at least 30 days after the starting date of unsubsidized employment reported in block 6 of the LET 104. Each LET 104 and MIS 2 is filed with the contract manager. The contract manager must review each MIS 2. The contract manager must also review each LET 104 to determine if the contractor is entitled to payment. If so, the LET 104 Form is reviewed by the contract manager's supervisor, is then sent to the Bureau of Financial Management and then goes to the Comptroller for payment to the contractor. Participants usually are required to train 40 hours a week. Although it is possible to train for more than 40 hours, it is unlikely that more than 40 hours would be expended by any participant. Based on the Total Hours Trained reported on the LET 104's filed by CARE for Z3248 and the period of time of OJT reported on the LET 104's, CARE participants were investing from 61 to 129 hours a week in OJT. When the Total Hours Trained reported are compared with the period of time from the enrollment date reported on the MIS 2's to the date unsubsidized employment began, although participants spent fewer hours per week, most of them still allegedly were spending more than 40 hours a week in training: from 33.5 to 70.5 hours per week. Mr. Faughn, after reviewing the LET 104's and MIS 2's filed by CARE on Z3248, did not raise any question about the number of training hours being reported by CARE. The testimony concerning whether Mr. Faughn should have noticed and raised some question concerning the Total Hours Trained reported by CARE, was conflicting: Mr. Geier, from the Office of the Inspector General of LES, divided the Total Hours Trained by the number of days of OJT reported in the LET 104's and by the number of days between each participant's enrollment date from the MIS 2's and the date unsubsidized employment began. His calculations, which are contained on Advocate's Exhibits 7 and 8, respectively, indicate that most participants may have been receiving more than 40 hours a week of training. See Finding of Fact 52. Mr. Geier believed that Mr. Faughn should have at least raised a question about the numbers reported as Total Hours Trained. Mr. Chilcote, Mr. Faughn's immediate supervisor, disagreed with Mr. Geier's conclusion: Mr. Chilcote pointed out that contract managers have to review several LET 104's a day (LET 104's were delivered in stacks of 20 to 30 and involved more than 1 contract and, on average, Mr. Faughn reviewed 8 to 10 a day). Mr. Chilcote also explained that contract managers do not have the time to make the calculations that Mr. Geier made. In order to make the calculations Mr. Geier made, it was necessary for Mr. Geier to count the number of possible days of training and then divide the Total Hours Trained by the number of days. Although not a difficult calculation, the evidence failed to prove that the calculation is one that contract managers normally make. Additionally, Mr. Geier had to obtain some of the relevant information necessary to make the calculations from the LET 104's and from MIS 2's. If block 11, Total Hours Trained, was only for OJT hours, Mr. Chilcote agreed that Mr. Faughn should have been alarmed. Block 11, however, was being used to report all training hours: EST, OST and OJT. Mr. Faughn should have been aware that CARE was reporting all of its alleged training hours in block 11 and not just OJT. Therefore, Mr. Faughn did not believe that Block 11 was intended to represent just OJT. Mr. Chilcote did not believe that lumping the hours of EST, OST and OJT was unusual. The Total Hours Trained reported on the LET 104's were not the significant information that contract managers were supposed to review. The purpose of the LET 104 is for contractors to certify that a participant has completed, in this case, 30 hours of unsubsidized employment. Therefore, the most important information on the LET 104 is the date unsubsidized employment began and the date the form was signed. Mr. Faughn initially rejected one payment and wrote to CARE when the information concerning when unsubsidized employment began and the date the form was signed for one participant did not indicate that the participant had been through 30 days of unsubsidized employment. See Respondent's Exhibit 8. Based upon the weight of the evidence, it is concluded that the evidence failed to prove that Mr. Faughn should have questioned the hours being reported as Total Hours Trained by CARE on the LET 104's. In light of the fact that the Total Hours Reported included all hours of training, not just OJT, the fact that Mr. Faughn was aware that the contract required EST, OST and OJT, and the fact that the LET 104's were primarily used to receive payment for 30 days of unsubsidized employment, dividing the Total Hours Trained by the number of days of OJT was not something Mr. Faughn would be expected to do as part of his job. The results of dividing the Total Hours Trained by the number of days from enrollment to the beginning of unsubsidized employment (Advocate's Exhibit also does not support a conclusion that Mr. Faughn should have questioned the information because the results of this computation do not show as great a discrepancy and the evidence failed to prove that Mr. Faughn should have been comparing the information contained on the LET 104's with the information contained on the MIS 2's necessary to make this computation. The Performance of Mr. Faughn's Duties: CARE's Match. CARE was required to provide "Match" on Z3248. "Match" is a requirement that a contractor provide a certain specified amount of time, equipment or 50% of OJT costs. In the case of Z3248, CARE was required to provide 50% of OJT Costs. CARE was required to report the amount of its match monthly on line 7 of a "Report of Monthly Cumulative Matching Contribution-Summary." CARE did in fact file such reports and, according to its reports, provided the required match. The evidence failed to prove that CARE failed to fulfill this requirement. In April, 1989, Ms. Marks and James Harris from LES's Bureau of Job Training Compliance made a site visit to CARE. The Bureau of Job Training Compliance was responsible for auditing contractors to determine whether they were complying with the requirements of their contracts. Ms. Marks and Mr. Harris spent approximately one-half of a day on the visit to CARE. Mr. Harris, who monitored fiscal matters, attempted to find documentation in the form of OJT agreements and time sheets to verify CARE's match of $6,398.00 reported for March, 1989. Mr. Harris was not successful and requested these documents from Mr. Wood. Mr. Wood informed Mr. Harris that the documentation for the $6,398.00 of March, 1989, Match was not available. Mr. Harris told Mr. Wood that the $6,398.00 would have to be removed and Mr. Wood informed Mr. Harris that it would be. Mr. Harris informed Mr. Faughn of the problem concerning the $6,398.00 of unsupported match. Mr. Harris also told Mr. Faughn that Mr. Wood had indicated that the $6,398.00 would be removed from CARE's reported Match. On June 26, 1989, a letter was sent to Mr. Wood from Ron Rigby, LET Supervisor, Bureau of Job Training of LES, stating, among other things, the following: In regard to the finding as noted in the fiscal review, documentation submitted is inadequate to support matching contributions of $6,398 for employer's OJT costs. You are requested to submit employers' OJT agreements and participants' time sheets which may be used to adequately document the matching contributions. We recommend that if adequate documentation is not submitted, the match contributions of $6,398 be deleted from the match report. A copy of the June 26, 1989, letter to Mr. Wood was provided to Mr. Faughn and Mr. Chilcote with a note from Mr. Spradlin which stated: What action will this require if enacted, i.e. are they already short of match or would they be without this etc. Pls track this along with the Gretna thing until resolution. Although there was some dispute over who had the ultimate responsibility for following up on the documentation for the $6,398.00 match, the weight of the evidence proved that while ultimate responsibility may have rested with the monitors of the Bureau of Job Training Compliance, Mr. Faughn had the responsibility to follow up on this matter also. Mr. Faughn had the responsibility as the contract manager and because he was directed by Mr. Spradlin to follow up until resolution. Although there was conflicting testimony concerning whether the documentation was ever provided, it is concluded that it was not. Mr. Faughn's testimony was disputed by other witnesses and, throughout the proceeding, was less than candid. Although the disappearance, and reappearance a few years later, of a file in which the documentation might have been kept and the fact that Mr. Harris left employment with LES in July, 1989, at the time of these events raises some question about whether the documents were provided, ultimately, Ms. Gloria Barton's testimony that the documentation was not provided was persuasive. Ms. Barton took over responsibility for the matter after Mr. Harris left LES. Ms. Barton asked Mr. Faughn about the documentation twice and made a note on August 8, 1989, to this effect. Ultimately CARE reported that it provided more match than it was required to provide. The weight of the evidence failed to prove that it did not meet its match requirement. Although the lack of documentation for a part of the reported match raises a question in the undersigned's mind concerning the accuracy of the other reported match, no evidence was presented to indicate that the required match was not ultimately provided. Nor was any evidence provided that anyone at LES also had such a concern. The weight of the evidence failed to prove that Mr. Faughn's actions with regard to whether CARE's match constituted some act or omission inconsistent with the proper performance of Mr. Faughn's public duties. The evidence, therefore, failed to prove that Mr. Faughn acted corruptly by not following up on the $6,398.00 of match questioned by Mr. Harris. J. The Performance of Mr. Faughn's Duties: Z3458. In March, 1989, Mr. Faughn approached Lucy Shepard, who acted as liaison between DHRS and LES on Z3458, and Carol Ann Breyer of FAEH and recommended that CARE and Mr. Wood be considered as a service provider. (Stipulated Fact). On April 29, 1989, Mr. Faughn held a barbecue at his home for the purpose of getting CARE together with DHRS and FAEH. Ms. Shepard, Charis Wickers of FAEH and Mr. Wood, among others, attended the barbecue. (Stipulated Fact). Mr. Faughn was very enthusiastic in his recommendation that CARE be awarded a contracted from FAEH. It was unusual for a contract manager to suggest service providers. As the contract manager of the ultimate contract from LES, Ms. Shepard, Ms. Breyer and Ms. Wickers were all influenced by Mr. Faughn's recommendation. Although Ms. Shepard, Ms. Wickers and Ms. Breyer all had reservations (based upon the fact that they had not heard of CARE as a provider of mental health services) about entering into a contract with CARE, they ultimately went along because of Mr. Faughn's recommendation and because the contract with CARE was performance based: if CARE did not perform, CARE would be paid nothing. After the contract was entered into with CARE, invoices were submitted. Ultimately, invoices for at least 100 placements were submitted. Ms. Shepard, Ms. Wickers and Ms. Breyer all raised questions with Mr. Faughn about their suspicions and concerns over whether CARE was performing the work it was reporting. Ms. Wickers complained more than once that CARE was not keeping sufficient contact with FAEH. Ms. Breyer questioned CARE's ability to perform as it was reporting. Although Mr. Faughn was not the contract manager of the contract to FAEH, Mr. Faughn and FAEH representatives knew that DHRS and Florida Community College were "pass-thrus" and that the most significant parties were FAEH and LES. Whenever Mr. Faughn was informed of the concerns of Ms. Shepard, Ms. Wickers and Ms. Breyer, Mr. Faughn would assure them that everything was okay, that CARE would perform and he would tell them not to worry. The invoices submitted by CARE were suspicious because they reported employment that mentally handicapped individuals normally do not obtain and some of the telephone numbers and addresses of employers were very similar. Eventually, Ms. Breyer took her concerns about the invoices to Mr. Kemp of LES. She did not go to Mr. Faughn because of his enthusiasm in recommending CARE and his lack of attention to her previous complaints. CARE was not paid any amount by FAEH. The weight of the evidence proved that Mr. Faughn's actions in recommending CARE for Z3458 and in ignoring the complaints against CARE were acts or omissions inconsistent with the proper performance of Mr. Faughn's public duties. But for his relationship with Mr. Wood and his desire to benefit himself indirectly through CARE and Mr. Wood, it is concluded that Mr. Faughn would not have supported CARE as a contractor in the manner that he did and that he should have taken the complaints against CARE more seriously. Therefore, the evidence proved that Mr. Faughn acted corruptly.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission on Ethics enter a Final Order and Public Report finding that John Daniel Faughn violated Section 112.313(6), Florida Statutes. It is further RECOMMENDED that the Commission suspend Mr. Faughn without pay for one month and demote him to a position in which he will not have direct or indirect responsibility for public funds. If Mr. Faughn cannot be demoted to such a position, it is recommended that the Commission suspend him without pay for a period of two months. DONE and ENTERED this day of June, 1992, in Tallahassee, Florida. LARRY J. SARTIN 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 day of June, 1992. APPENDIX The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Advocate's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection A. 1 1. 2 2. 3 5. 4 6. B. 1 7. 2 8. 3 9. 4 Not relevant. See 10. C. 1 11. 2 12 and 21. 3 12 and 14. 4 13. 5 37. Hereby accepted. Not supported by the weight of the evidence. 8 18 and 21. 9 18. 10 19. 11 21. 12 80. D. 1 22-23. 2 24-25. 3 26. 4 27. 5 28-31. 6 31. 7 34. 8 33. 9 31 and 34. 10-14 34. 15 34-36. E. 1 37 and 39. 2 40. 3 41. 4 Not supported by the weight of the evidence. 5 45. 6 48. Hereby accepted. But see 55. See 52 and 54. 51. The Respondent did not have the burden of proving that over 40 hours of training per week was provided. The burden of proof was on the Advocate. See 48. 11 47-48. 12 51. 13 The burden of proof was on the Advocate to prove that participants did not receive training after being placed in unsubsidized employment. Although the evidence raised doubt about whether such training was provided, the evidence did not prove this fact. 14 See 54-55. 15 44. Hereby accepted. But see 55. See 55. Except for the first sentence, this proposed finding of fact is not supported by the weight of the evidence. 18 65. 19 58 and 60. 20 56. 21 63-64. 22-25 66. Not supported by the weight of the evidence. See 67. 69 and hereby accepted. 28 70. 29 71. 30 73 and 76. 31 21 and 73. 32-33 75 and 77. 34 78-79. 35 Not relevant. 36 79. 37 80. 38 33-36. The last paragraph is not supported by the weight of the evidence. Mr. Faughn's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1. 2 2. 3 5. 4 5 and 50. 5 12-16. 6 17, 45 and 49. 7 38. 37 and hereby accepted. Not supported by the weight of the evidence. The evidence failed to prove whether CARE fulfilled its obligations or whether it failed to fulfill its obligations. The evidence failed to prove that Mr. Faughn's performance "was exactly as it should have been." See 22, 45 and 47. The third sentence is hereby accepted. 11-12 Not supported by the weight of the evidence. 13 18, 20 and 69. 14 70. 15 Not supported by the weight of the evidence. 16 21 and 71. Not supported by the weight of the evidence. See 75 and 77. Not supported by the weight of the evidence. See 73 and 76. Not supported by the weight of the evidence. See 81. 33 and See 34-36. The evidence failed to prove that the sole purpose of the $4,500.00 check was for materials. Not supported by the weight of the evidence. See 35- 36. See 55. Not supported by the weight of the evidence. See 42 and 81. 24 See 6, 65 and 68. COPIES FURNISHED: Virlindia Doss Assistant Attorney General Department of Legal Affairs The Capitol, Suite 101 Tallahassee, Florida 32399-1050 Ronald L. Jones, Esquire 1020 East Lafayette Street, Suite 108 Tallahassee, Florida 32301 Bonnie J. Williams Executive Director Commission on Ethics The Capitol, Room 2105 Post Office Box 6 Tallahassee, Florida 32302-0006
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 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.
