The Issue The issue in this case is whether Respondent’s intended award of a contract for telephone systems maintenance and installation services pursuant to Bid #09-005/LH is contrary to Respondent’s governing statutes, Respondent’s rules or policies, or the solicitation specifications.
Findings Of Fact On June 17, 2008, the School Board issued an ITB for telephone systems maintenance and installation services. The ITB was identified as Bid #09-005/LH. Section 2.2 of the ITB described the scope of work as follows: Bids will be requested for the following types of work from the qualified and awarded Contractors: Upgrades and installation of various types of Telephone Systems, including but not necessarily limited to the following: wiring, cabinet, control, and conduit installation and upgrades to existing system components, programming panels/switches, testing telephone systems, installation, replacement of devices and system components, power supplies, all other projects directly related to telephone systems, including new installations (material and labor), at any designated SBBC [School Board] site and certification of various telephone systems. The School Board of Brevard County will have salvage rights if requested for all parts and material that is [sic] removed from each project. All work/materials shall be in accordance with State Requirements for Educational Facilities (SREF), the Florida Building Code, SBBC Facilities Standards and Guide Specifications. Section 2.4 of the ITB set forth the qualifications of the contractor and required the following: 2.4.1 The successful “Telephone System Contractor” shall be a person whose business includes the execution of contracts requiring the ability, experience, science and knowledge, and skill to lay out, fabricate, install, maintain, alter, repair, monitor, inspect, replace, or service telephone systems for compensation, including all types of telephone systems, for all purposes. The business shall be self-proprietary, will provide service with company employees, company owned and insured vehicles and company owned equipment. Subcontracting of Telephone System Services will not be allowed. * * * The bid will be awarded only to responsible bidders that are factory authorized dealers of the systems bid and qualified to do the work specified with manufacturer trained and certified technicians. The successful “Telephone System Contractor” shall have a minimum of two certified/trained technicians for each of the installed system [sic] bid. For systems that are manufacturer discontinued, contractor shall have a minimum of tow [sic] trained technicians, with five or more years of experience in maintaining such systems. Awarded bidder(s) shall be capable of and responsible for testing each wire, landing all wire, mounting all devices, programming panels, trouble shooting and certifying telephone system installations. In addition, the successful bidder(s) must be certified to provide support for existing structured cabling system (SCS) infrastructure. If the SCS has an existing warranty, the successful bidder(s) shall provide warranty coverage on the SCS as defined by the manufacturer. The School Board has existing SCS warranties from either Molex or Siemens[1] certified solutions. The successful bidder(s) must also be qualified and authorized by a manufacturer to design, configure, and maintain an IP telephony multiservice network solution using QoS, Call Control clustering, H.323, MGCP, or SIP signaling protocols and shall be able to integrate legacy TDM Telephone Systems and voice mail systems into an existing data network. Awarded bidder(s) must install telephone systems to meet all State of Florida Department of Education (SREF), NFPA and NEC requirements. The bidder shall submit the following information in ‘Envelope B’: Experience record and proof that bidder is a certified factory trained dealer for the system(s) being bid with at least five (5) years experience in telephone service work. Evidence that all field supervisory employees are certified manufacturer and SCS technicians. List and a brief description of similar work satisfactorily completed with location, dates of contracts, names, phone numbers and addresses of owners. List of equipment and facilities available to do the work. Names and evidence of level of competency of all personnel who will be used in District projects. The District must recognize competency certification and employees (names must appear on invoices with number of hours worked). Name(s) of project manager(s) and evidence of current “Certificate of Factory Training” of system(s) bid. Provide resume of Project Managers. Evidence that bidder’s support team is located within a 75 mile radius of Brevard County. Evidence of ability to supply as-built drawings as needed. Evidence of occupational license (business tax receipt) and State of Florida Low voltage license. Letter from manufacturer stating that you are an authorized dealer/service provider for systems bid. Failure to submit the above requested information (in Envelope ”B” with Price Sheet and Questionnaire) may be cause for rejection of the proposal. (Emphasis in original) The Contractor must complete the enclosed questionnaire which will be used to evaluate capabilities to perform the work during the contract period. The questionnaire must be completed and contain sufficient and specific information which directly responds to the request. The School Board reserves the right to reject bids which do not provide sufficient information to evaluate the qualifications of the Contractor and where information provided does not demonstrate a proven past record (such as negative references, failure to complete projects, etc.). Section 1.2 of the ITB stated: THE INTENT of this bid is to establish a contract for a period of one year from date of award during which time; the successful bidder(s) shall guarantee firm-fixed pricing for telephone system maintenance and materials and firm-fixed labor, equipment and material prices for minor and major installation of the District’s Telephone systems as awarded to him/her as specified in this bid. The bid shall be based on an ‘All-Or-None” format per system manufacturer. This bid will be awarded to a minimum of one contractor for each manufacturer of systems used by the District. In the best interest of the District two or more contractors may be awarded a specified system. The “lowest and best” bid will be the primary contractor and the next “lowest and best” bids will be alternate or secondary contractors. The primary contractor may be requested to perform the maintenance and work required for minor upgrades and installation projects with an estimated cost of $6,000.00 or less. Each project estimated to be over $6,000.00 will be given to all contractors awarded the specific system to quote as specified. At the discretion of The School Board of Brevard County, Florida the contractor providing the lowest quote meeting specifications will be awarded the project. Section 8.1 of the ITB clarified the meaning of “lowest and best bid” as follows: SCHOOL BOARD intends to accept the “lowest” and “best” bid(s) submitted to it. The term “lowest” aforesaid shall be interpreted to mean the lowest “ALL OR NONE” Total Net Bid Price for all required tasks for each system manufacturer. In determining which is the “lowest” and “best” bid received, the SCHOOL BOARD shall also consider and weigh (a) the experience, qualifications and reputation of each BIDDER, and (b) the quality of products and services proposed by each BIDDER. SCHOOL BOARD reserves the right to: reject any and all bids received by it, waive minor informalities in any bid, accept any bid or part thereof that in its judgment will be for the best interest of the School Board of Brevard County, Florida. The ITB listed the following telephone systems for which bids were to be submitted: Hitachi, IWATSU, NEC, Nortel- BCM, Premier, Prostar, Starplus, and Toshiba. Nortel-BCM and IWATSU are systems that are currently supported by the manufacturer. Xeta Technologies had acquired the distribution rights for Hitachi and was providing support for the Hitachi systems. The School Board considered the following systems to be discontinued systems, which were not currently supported by the manufacturer: NEC, Premier, Prostar, Starplus, and Toshiba, collectively referred to as the discontinued systems. Morse and BBTS were among the bidders which submitted bids in response to the ITB. BBTS bid all systems. Morse bid all systems with the exception of Nortel-BCM. Morse was not an authorized/certified dealer for Nortel-BCM systems. BBTS was the low bidder for the IWATSU system. Morse was the low bidder for the discontinued systems and Hitachi. In its bid, BBTS stated that it was a factory- authorized dealer for Hitachi, Nortel Networks, and IWATSU Voice Networks. BBTS submitted a letter from IWATSU stating that BBTS was an authorized IWATSU distributor in good standing. Contrary to the ITB specification 2.4.4J, BBTS did not submit a letter from Nortel stating that BBTS was an authorized dealer/service provider for Nortel. Instead, BBTS advised the School Board to contact Jon Gain, a field channel manager for Nortel, for information regarding the Nortel networks. BBTS provided Mr. Gain’s mailing and e-mail addresses and his telephone number. BBTS submitted a letter from XETA Technologies, which stated: Please be advised that XETA Technologies, Inc., acquired the distribution relationships of Hitachi Telecom (USA), Inc. for the HCX5000/HCX5000® product line, effective May 5, 2006. Per correspondence dated May 11, 2006, Orlando Business Systems was notified of XETA’s assumption of Hitachi’s obligations under their Authorized Distributor Agreement, and Orlando Business Systems remains an Authorized Hitachi Distributor. Kathyrn Arvonio, a telecommunication specialist employed by the School Board for over four years, helped to evaluate the bids submitted in response to the ITB. Ms. Arvonio spoke with a field channel manager from Nortel on July 23, 2008. She was advised by the field channel manager that BBTS could service, maintain, and buy parts necessary for all repairs on Nortel-BCM products. Based on the information provided by Nortel, Morse was authorized by Nortel to service and maintain a Nortel system. Prior to making a recommendation for contract award, Ms. Arvonio called personnel at XETA and was advised that BBTS was also an authorized distributor of Hitachi. Morse included with its bid a letter from IWATSU stating that Morse was an authorized dealer for IWATSU. Morse did not include a letter from either Hitachi or XETA that Morse was an authorized dealer for Hitachi or XETA. BBTS stated in its bid that it had trained/certified technicians for the discontinued systems and had maintained the discontinued systems for 20 years. In its bid, BBTS identified Arthur Love as a technician who had been employed with BBTS since 1992. The bid stated that Mr. Love “has certifications on the Hitachi PBX, Iwatsu Adix, Nortel BCM 1648 and many more. He is trained on the Premier NC616, Prostar Plus, and the Starplus Key Systems.” Included with the bid were certificates from Hitachi, IWATSU, and NEC. In its bid, BBTS identified Doug Chamberlin, who had been employed by BBTS as a technician since 1994, and stated that Mr. Chamberlin “has certifications on the Hitachi PBX, Iwatsu Adix, Iwatsu Enterprise CS (IP System), Nortel BCM, Mitel SX2000 PBX and the Mitel 3300 ICP (IP System), Starplus 616, Prostar and the Toshiba DK280 and many more. He is trained on the Premier NC616, and the NEC 16/48.” The bid included certificates for Mr. Chamberlin from Hitachi, IWATSU, Toshiba, and Starplus. BBTS identified Troy Gaskins in its bid as being employed, as having 11 years' experience as a technician, and as having “certifications on the Iwatsu Adix, Prostar and the Norstar Key Systems.” BBTS stated that Mr. Gaskins was trained on the Iwatsu ZTD, Premier NC616, Starplus, and the NEC 16/48 Key Systems. A certificate from IWATSU was included with the bid. In its bid, BBTS identified Gustavo Beltran as having 12 years' experience in the telecommunications industry. BBTS stated that Mr. Beltran was “certified on the Mitel SX-200ICP (IP PBX).” The bid also stated that Mr. Beltran was trained on the Iwatsu Adix, Prostar, Premier NC616, Starplus, and the NEC 16/48. In its bid, BBTS identified Kevin Krise as having over 28 years' experience in the telecommunications industry. BBTS stated that Mr. Krise was “certified on the Mitel SX-2000, Mitel SX-3300 ICP (IP PBX), Siemens, Telrad, Macro Voice and many others” and that he was “trained on the Iwatsu Adix, Toshiba DK280, Iwatsu ZTD, Prostar, Premier NC616, Starplus and NEC 16/48 Key Systems.” Morse indicated in its bid that Kevin Joyce, Dale Koehler, and Jeff Pitt had successfully completed technical training through IWATSU. Morse stated in its bid that Gary Gage had in-depth knowledge of the Toshiba telephone system. Morse did not establish in its bid that it had two trained technicians with five years' or more experience in maintaining Hitachi, Prostar, Premier, Starplus, Toshiba, or NEC systems. The School Board has eight to ten portable classrooms that have Siemon structured cabling. The remainder of the structured cabling used by the School Board is manufactured by Molex. Molex is the standard for the School Board, and, when the portable classrooms with Siemon structured cabling are moved, the structured cabling will be switched to the Molex brand. The ITB required the bidders to be certified to provide support for existing structured cabling system (SCS) infrastructure and to provide warranty coverage on the SCS for systems under warranty. Clearly based on the ITB, the contractor awarded the contract was to be able to and expected to provide work on the SCS infrastructure when warranty work was involved. Ms. Arvonio interpreted the ITB to mean that the bidder awarded the contract was not to work on the structured cabling, but was to be able to test the SCS and notify the School Board if there was a problem. She also was of the opinion that the ITB did not require the bidders to be certified by Molex or Siemon. According to Ms. Arvonio, if there was a problem with the structured cabling, the manufacturer would be contacted if warranty work was involved, and, if the system was not under warranty, the work would be done by separate contract. No explanation was given why the language requiring certification was included in the bid specifications. In response to the ITB requirement that the contractor be certified to provide support for the School Board’s existing SCS, BBTS stated in its bid: BBTS has been a structured cabling system contractor for 20 years and currently holds installer certifications for the following manufacturers. See attached Installer Certifications. Molex Hubbel Siemons BBTS is not a “Certified Installer” through Siemons, but we do maintain current individual designer/installer certifications for Siemons. BBTS commits to providing the manufacturer’s warranty per the manufacturer’s specifications. BBTS included a certificate with its bid, certifying that BBTS was a certified installer for Molex. Also included with the bid were certificates for four individuals showing that they were certified Molex installers. As part of its bid, BBTS submitted certificates showing that one employee of BBTS had “satisfactorily completed the recertification requirements as a Siemon Cabling System Authorized Designer/Installer” and that another BBTS employee had “completed the required training and satisfactorily met all requirements to become a Siemon Cabling System® Authorized Installer.” Based on BBTS’s response, BBTS had employees who could perform warranty work on the SCS, if required to do so. Morse included with its bid a certificate from Molex certifying that Morse was a Molex-certified installer. Morse also included with its bid a certificate from the Siemon Company that Morse was a certified installer for the design, installation, and administration of Siemon Cabling Systems. Section 3.1.3 of the ITB required the bidders to include a catastrophic failure plan with each bid. The plan was to “provide interim service for totally replacing any system(s) to be maintained if a catastrophe should occur during any applicable maintenance period.” BBTS provided a catastrophic failure plan in its bid, which stated, in part: In the event of a Catastrophic Failure, Brevard Business Telephone Systems, Inc. (BBTS), and Orlando Business Telephone Systems, Inc. (OBTS) are in a position to assist the Brevard County Public Schools in its telecommunications requirements. We currently maintain a system capable of 100 stations and 24 trunks that could be installed in the event of a catastrophic failure. * * * Brevard County Public Schools would identify the sites that are priorities for continued operation of their telephone systems. BBTS would work with Bell South in restoring service to these facilities. All supplies necessary for replacement would be moved inland to OBTS should the need arise in order to maintain the serviceability of the parts. Orlando Business Telephone Systems, Inc. (Orlando Business Systems), and BBTS are separate business entities. Orlando Business Systems did not submit a bid in response to the ITB, and the bid submitted by BBTS was not a joint bid of BBTS and Orlando Business Systems. In its bid, BBTS identified Orlando Telephone Company/Orlando Business Systems as an affiliate of BBTS. In her evaluation of BBTS’s bid, Ms. Arvonio did not consider Orlando Business Systems as part of the bid and made her evaluation on the services which were to be provided by BBTS. BBTS is the current contractor providing telephone maintenance services to the School Board. Based on Ms. Arvonio’s previous experience with BBTS, she was aware that BBTS could maintain a telephone system consisting of 100 stations and 24 trunks during a catastrophic event. On July 31, 2008, the School Board posted an intended award of all systems to BBTS as the primary contractor and an intended award of the IWATSU system to Morse as the secondary contractor. BBTS was the lowest, conforming bidder for all systems. Ms. Arvonio received an e-mail dated August 19, 2008, from Jason Harrison from Nortel. The e-mail concerned the relationship between Nortel and BBTS and stated: Brevard Business Telephone Systems, Inc. is a contracted Nortel Authorized Reseller. They have a long standing relationship with Nortel in [the] Brevard County, FL area with a dedicated Nortel Field and Inside Support Team. When the BCM was launched BBTS was one of the first reseller’s to get fully accredited. As the platform has evolved, Nortel has modified the Accreditation requirements. BBTS is in the process of completing the latest requirements and will be finished with them by August 22nd 2008. If service is required before the completion of the exams, Nortel Support Services may be implemented by BBTS. Nortel Support Services are available to BBTS as part of their contract with Nortel. After the intended award was posted, staff from the School Board met with personnel from Morse to discuss Morse’s protest to the intended award. Personnel from Morse were asked if Morse had trained technicians for any of the discontinued systems. They responded that Morse had trained technicians for Hitachi, but did not provide any support for their claim. At the meeting, Steven Koller, a project manager for Morse, indicated that Morse did have trained technicians for some of the discontinued systems. He did not identify the systems nor did he identify the technicians. At the final hearing, Mr. Koller testified that he had more than five years' experience with systems manufactured by Toshiba, NEC, and Hitachi. He could not identify other technicians at Morse who had more than five years' experience with the discontinued systems and deferred to Michael Costello, the owner of Morse, for that information. At the final hearing, Mr. Costello, who controlled all aspects of the technician side of Morse, testified that he had over five years’ experience with some of the discontinued systems and that he had two or more technicians with over five years’ experience with the discontinued systems with the exception of Hitachi. Mr. Costello further testified that he could not identify the technicians without looking at their resumes. No resumes were produced at the final hearing. Finally, Mr. Costello said that Gary Gage, a long-time employee of Morse, had experience with the discontinued systems. Mr. Costello’s testimony is not credible. As the person in charge of the technician side of Morse, he had very little knowledge of exactly what experience his staff had in working with the discontinued systems at issue. If he had staff with the requisite experience, it would have been very simple for him to submit resumes of those employees in its bid or to attach certificates of training as did BBTS. Morse chose not to do that. Additionally, after the intended award was posted, Morse was given an opportunity at meetings with the School Board to identify personnel with the experience with the discontinued systems, and it failed to take advantage of that opportunity. Petitioner has argued that the School Board and Ms. Arvonio, in particular, were biased toward BBTS. Ms. Arvonio had worked for BBTS for seven years prior to becoming employed by the School Board. No evidence established that either Ms. Arvonio or the School Board was biased in favor of Morse. Ms. Arvonio called companies listed by other bidders to verify the bidders’ credentials. Within the last two years, the School Board has awarded a bid to Morse for structured cabling for over $200,000.00. The School Board staff gave Morse an opportunity after the bids were opened to provide information which would establish that Morse had sufficient trained staff to service the discontinued systems.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing the bid protest filed by Morse. DONE AND ENTERED this 10th day of February, 2009, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 10th day of February, 2009.
Findings Of Fact On September 9, 1985, Petitioner, United Health, Inc. (United, Petitioner), requested a formal hearing regarding certain Medicaid audit adjustments. This request for formal hearing was addressed to Roy McCaslin at the Department of Health and Rehabilitative Services and was sent by certified mail on the morning of September 9, 1985. Although the petition for formal hearing was sent by certified mail, no date of delivery to DHRS was entered on the corresponding return receipt, which was returned to the Petitioner. The return receipt was signed by Gay N. Schwall, a secretary employed in the Office of Audit Services of the Department of Health and Rehabilitative Services. Ms. Schwall had no memory of signing the return receipt and no memory of receiving the request for formal administrative hearing. Although Ms. Schwall testified that the mail was "usually" date- stamped on the same date it was received in her office, she had no recollection of date stamping the request for hearing. She was also unable to recall whether she was actually working on that particular day as opposed to being on vacation and represented that she was unable to recall, without looking at her "time sheet", on what day she had taken vacation time. In any event, she was unable to establish that she was working in her office on the day the request was date stamped as being received in her office. Mr. McCaslin, Ms. Schwall's supervisor in the Office of Audit Services, had no memory of when he actually received the hearing request and had no personal knowledge of when the request wads actually received in his office. Mr. McCaslin was on personal leave for the period of time from September 6 through September 18, 1985. He had no knowledge of whether Ms. Schwall was actually in the office on September 11, 1985, the date the Petitioner maintains the petition was received by the Department as opposed to the date stamped on the face of the petition by Department personnel, which is September 12, 1985, and ostensibly the date of receipt by the Office of Audit Services. According to Mr. Joseph Robinson, the DHRS mail room supervisor, all mail addressed to the Department and to its employees comes through a central mail room. It is distributed from there to the addressee office or individual. Although certified mail is delivered regularly at the DHRS post office, the post office sometimes mistakenly sends certified mail through the regular morning non-certified mail delivery to individual offices. The certified mail can thus erroneously go through the regular mail channels for delivery without being processed as certified mail. All certified letters normally coming through the mail room are signed by either Mr. Robinson or other mail room personnel. Ms. Gay Schwall, secretary in the Office of Audit Services, does not typically sign receipts for certified mail. If, however, certified mail is mistakenly put in the regular mail delivery, then it would likely be signed by a person in the ultimate addressee office instead of in the mail room, which would be the normal practice if the certified mail was properly routed. If a piece of certified mail is delivered to the DHRS mail room, the corresponding certified return receipt is usually taken off before the postman leaves. This is because the postman delivers the certified mail and it is much more convenient for him to stand by briefly while mail room personnel execute the return receipt and hand it back to him for the postal records, rather than possibly requiring a postal employee to make an extra trip to the Department's mail room to pick up return receipts if they had to be routed to the individual addressee offices for signature before the receipt could be returned. Thus, since the certified mail receipt for the instant petition was signed in the addressee office by Ms. Schwall instead of by mail room personnel, it is apparent that the certified mail in question, the petition, did not receive the normal rapid handling accorded certified mail but was rather treated as regular mail. Since the signature on the return receipt in question was signed by Ms. Schwall and not by an employee in the mail room, it is quite likely that this petition was indeed not treated as certified mail, which is normally delivered the same day, but as regular mail, which may go to the addressee office on the same day and, equally, likely might not be delivered until the next day. Indeed, if a piece of certified mail comes into the DHRS mail room after 3:30 in the afternoon, even certified mail is typically not received in the addressee office of DHRS until the following day. Concerning the possibility that a piece of certified mail might not be delivered to the addressee on the same day it is received in the mail room, Mr. Robinson testified: Q: Mr. Robinson, are you aware of any instances where a piece of certified mail has been received in the mail room and then not delivered to the subunit or the sub-office of HRS until the following day? A: Yes, I am aware of that. On at least two occasions during late 1985, the Petitioner filed formal request for hearing with DHRS contesting Medicaid audit adjustments. In both of those instances, the date of receipt stamped on the face of the request for hearing is a later date than the date on the return receipt, which latter date indicates the date the letter was actually received in the DHRS mail room at the agency to which it was directed. In one of those instances, the request for hearing was received by Mr. Robinson, in the mail room, on November 4, 1985, and then was date stamped as received in the subunit of DHRS on November 5, 1985. In another case, the request for hearing was received by Mr. Robinson, in the mail room, on October 25, 1985, and then was date stamped in the office of DHRS to which it was directed or addressed, on October 28, 1985. Mr. McCaslin agreed that it is entirely possible that the petition for hearing herein could have been received in his office on September 11, 1985, in which case it would be timely filed. Indeed, as acknowledged by Mr. McCaslin, receipt in the DHRS mail room of a petition for hearing would be equivalent to receipt by the Department pursuant to Rule 10-2.36, Florida Administrative Code, and certainly if the petition was received in the mail room on September 11, 1985, it would be a timely filed petition. The Petitioner offered, and had received, Exhibit 7, which is a copy of the Office of Audit Services file for G & J Investments Corporation. A review of the pleadings and correspondence in that file reveal that in that past instance, receipt of a petition for hearing by the DHRS mail room was treated as the date of receipt of the petition by the Department. In that case, the nursing home provider received the audited cost reports and notification of its right to request a hearing on March 28, 1983. The resulting request for hearing was received in the Office of Audit Services on April 28, 1983. The Department then advised G & J Investments Corporation that its request for hearing was to be dismissed as untimely and an appeal ensued. Subsequent to the filing of the appeal, it was determined that the request for hearing, in that instance, was actually received in the mail room a day earlier than receipt by the Office of Audit Services, thus it was received in the mail room on April 27, 1983. Because of this determination, the request for hearing was forwarded to the Division of Administrative Hearings by DHRS voluntarily. Petitioner's Exhibits 8, 9 and 10 reveal a similar instance involving Diversicare Corporation, Southern Pines Nursing Center. That situation involved an application for a formal administrative hearing by that entity wherein its request for hearing was received in the office of audit services of the Department on December 12, 1985, more than thirty (30) days after notification of the audit adjustment; that is, notice of intended agency action. The request for hearing filed by Southern Pines Nursing Center, over thirty (30) days from the date of notification, was referred to the Division of Administrative Hearings and is currently pending before a Hearing Officer. If the Petitioner's request for hearing in the instant case is denied, it will lose its ability to contest the audit of its nursing homes which will result in a reduction in the reimbursement paid to the Petitioner under its Medicaid provider contract. The resultant reduction- in payment to the Petitioner could be in excess of $200,000.00.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, the Hearing Officer concludes that the Department of Health and Rehabilitative Services has failed to establish a basis for denial of the Petitioner's request for hearing. Accordingly, it is RECOMMENDED: That Petitioner be granted a formal administrative proceeding, pursuant to Section 120.57(1), Florida Statutes, for the purpose of contesting the Medicaid audit adjustments proposed by the Department of Health and Rehabilitative Services. DONE and ORDERED this 17th day of September 1986 in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 17th day of September 1986. APPENDIX PETITIONER'S PROPOSED FINDINGS OF FACT Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. RESPONDENT'S PROPOSED FINDINGS OF FACT Accepted, but not dispositive of the ultimate issue presented. Accepted, but not dispositive of the ultimate issue presented. Accepted, but not dispositive of the ultimate issue presented. Accepted as to testimony of normal agency practice, but not as establishing the material fact in issue. Rejected as not in accord with the greater weight of the testimony inevident. Rejected for the above reason; for the further reason, that the considerations expressed in this paragraph are not relevant and for the further reason that they do not constitute proposed findings of fact. Accepted as to the first sentence; the remainder constitutes argument as to the import of evidence. COPIES FURNISHED: W. David Watkins, Esquire and Eleanor A. Joseph, Esquire OERTEL & HOFFMAN, P.A. Post Office Box 6507 Tallahassee, Florida 32314-6507 Stephen J. Stolting, Esquire and Theodore E. Mack, Esquire Department of Health and Rehabilitative Services Building One, Room 407 1323 Winewood Boulevard Tallahassee, Florida 32301 William Page, Jr., Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 Steven W. Huss, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
Findings Of Fact On September 12, 1985, the LCSB issued a Request for Proposals ("PEP") for a telephone system to serve its Administrative Complex and Lively Area Vocational-Technical Center Main Campus ("the proposed telephone system"). Subsequently, several addenda and supplemental materials were forwarded to all participating vendors of handwritten portion. The PEP scheduled a vendor's conference for September 19, 1985. It required any "discrepancies, errors, omissions, or ambiguities in the specifications or addenda (if any)" to be reported to the LCSB no later than September 25, 1985. Similarly, the PEP required vendors to "submit written requests for clarification of terminology, if necessary, no later than September 25, 1985." Responses to the PEP were required by the time set for opening the vendors' proposals at 10:00 a.m. on October 4, 1985. The compressed time frames were imposed in an effort to be able to complete the PEP process, award the contract and have a telephone system installed by the first week of January 1986. This target date for installation was established because, although budgetary and other problems delayed the start of the PEP process, the LCSB had decided by September 1985 to change its telephone listings in the December 1985 to December 1986 edition of the Official Telephone Directory For Tallahassee, Florida, in anticipation of a new telephone system. Pursuant to a requirement of the PEP, ten letters of intent to submit proposals were received on or before September 19, 1985, including letters of intent from Petitioner, Telecom Plus of Florida, Inc. ("Telecom Plus"), and Intervenor, Centel Business Systems ("Centel"). Telecom Plus, Centel, and three other vendors submitted proposals on or before the deadline of October 4, 1985. By letters dated October 10, 1985, the LCSB Director of Purchasing notified the five proposing vendors that the Superintendent intended to recommend to the LCSB that the contract be awarded to Centel based on the bid tabulation prepared by the LCSB telecommunications consultants. Attached to those letters was a copy of the evaluation summary (bid tabulation). The letter was written on LCSB stationery on behalf of the LCSB and, under Rule 6g x 37-6.09, Rules of the LCSB, had the effect of announcing the intention of the LCSB to award the contract to Centel. The proposed telephone system will serve two locations, the LCSB Administration Complex and the Lively Area Vocational-Technical Center Main Campus. These two locations are separated by a distance of approximately 4,500 feet. The PEP required the proposed telephone system to provide telephone service to each location, as well as to interconnect the two locations. The cable(s) for the interconnection between the two locations will be housed in a 4,500-foot long, four-inch PVC conduit to be installed as part of the proposed telephone system. To satisfy the needs of the LCSB, the proposed telephone system could be in one of several configurations. At least one Electronic Private Automatic Branch Exchange (EPABX, commonly referred to as a "switch") is necessary to provide for intra- and inter-facility communications and to connect the Administration Complex and Lively Area Vocational-Technical Center Main Campus to the outside world. The PEP indicated that the possible configurations for the proposed telephone system included: (1) a single switch at the Administration Complex with cables extending at least 4,500 feet to each telephone instrument at the Lively location; (2) a single switch at the Administration Complex with remote peripheral equipment ("RPE," means a portion of the single switch which is remotely located) located at the Lively location and connected to the switch by 4,500-foot long cables, and (3) two switches, one at the Administration Complex and one at the Lively location, interconnected by 4,500-foot long cables. Telecom Plus filed a protest after the posting of the bid tabulations on or about October 16, 1985. 2/ In its letter of protest, as further explicated in the Prehearing Stipulation, Telecom Plus raised three basic issues. First, Telecom Plus complained that the RFP specifications were ambiguous and not well enough defined, resulting in comparisons between vendors' systems which were not "apples to apples." Second, Telecom Plus claimed that Centel's Call Accounting System, a required subcomponent of the proposed telephone system, fails to meet the FFP's specifications. Finally, Telecom Plus challenged the subjectivity of the point awards in the equipment evaluation, claiming that the point awards for equipment did not accurately reflect the proposals of Telecom Plus and Centel. The LCSB used a request for proposals to solicit vendors' suggestions on how its proposed telephone system needs could best be met because, in the opinion of the LCSB telecommunications consultants, an invitation to bid setting forth precise specifications for equipment in a given configuration would have eliminated all competition among vendors. While the telephone systems proposed by Telecom Plus and Centel differed in the mechanisms used to meet the LCSB needs, the systems were capable of comparison in an evaluation of whether and the extent to which they met the LCSB needs. Each of the alleged ambiguities raised in the Telecom Plus letter of protest were apparent on the face of the FFP. Telecom Plus did not avail itself of several opportunities to have any such perceived ambiguities in the RFP specifications cleared up. On September 19, 1985, the LCSB conducted a vendors' conference to answer vendor questions concerning the PEP and to clarify the vendors' understanding of the PEP. Representatives of Telecom Plus and Centel, as well as several other vendors, attended the vendors' conference. Notes from the vendors' conference setting forth questions raised and the LCSB's answers were distributed as supplemental material to all PEP specifications. In addition to the clarifications made as a result of the vendors' conference, the PEP included an invitation to vendors to submit written requests for clarification of terminology, if necessary, by no later than September 25, 1985. No such written requests were received by LCSB. The PEP also provided that any discrepancies, errors, omissions, or ambiguities in the specifications, errors, omissions, or ambiguities in the specifications or addenda should be reported in writing to the LCSB by no later than September 25, 1985. No such written notification was received by the LCSB. Despite complaints in its protest that these time frames were inadequate, Telecom Plus acknowledged the time frames in its response to the PEP and neither made objection nor took exception to them. On the merits, the PEP clearly and accurately communicated that no system architecture was "preferred" over another. The LCSB wanted the vendor's to propose their solutions to the peculiar communications problems faced by the LCSB. Neither single switch, double switch nor switch with remote peripheral equipment (RPE) configuration was to be excluded from consideration. Regarding the system features, the PEP required electronic multi-line key sets "providing for combinations of five or more lines and/or programmable feature access buttons." Although it may have been wiser to specify the maximum number of lines and feature access buttons, there is nothing ambiguous about the PEP. It requires a minimum of five lines or feature access buttons. Telecom Plus asserted that the Call Accounting System proposed by Centel did not comply with the RFP specifications in that the Call Accounting System proposed by Centel only provides 40,000 call records. The LCSB indicated in the notes from the vendors' conference that a 60,000 capacity in number of calls recorded was "desired"; no 60,000 capacity was specified in the EFP itself. Even if the desired target of 60,000 call records contained in the vendors' conference notes was considered a specification of the RFP, vendors had the option of adding or deleting items from the system requirements in their proposal as long as the additions or deletions are clearly indicated. Centel clearly indicated that its proposed SUMMA IV Call Accounting System would provide only 40,000 call records, complying with the addition/deletion provision of the RFP. 3/ In recognition of the fewer call records provided by Centel's Call Accounting System, the LCSB telecommunications consultants awarded Centel seven fewer points than possible. Telecom Plus, on the other hand, received all of the available points for its Call Accounting System that exceeded the desired target of 60,000 call records. The RFP described the criteria to be used by the LCSB in evaluating proposals. A maximum of 1,000 points would be awarded to each proposal--300 points for equipment considerations, 300 points for vendor considerations and 400 points for financial considerations. The equipment considerations included the system's fulfillment of the minimum size, feature, capacity and performance characteristics contained in the RFP, as well as the availability and functionality of specified items, such as the availability of features, ease of systems operation, and projected longevity. The vendor considerations included the vendor's capability and qualifications to provided installs and maintain the system, which would involve an evaluation of the vendor's experience (particularly with other installations of comparable size and complexity), available manpower, financial stability, and proposed installation and maintenance plans. The financial considerations included initial and recurring costs of the system, which would involve an evaluation of the cost of lease or purchase, cost of maintenance, cost of future additions based upon an assumed annual average growths cost of insurance, cost of systems administration, and any other determinable costs associated with the acquisition, installations or operation of the proposed system. In evaluating proposals, some effort was made to relate points to a dollar value. Since Centel's proposal would cost a total of $1,164,528 over seven years and Telecom Plus' would cost a total of $1,223,281 over seven years, it was borne in mind that each point in the equipment or vendor categories would relate to roughly $4,000 in the financial category. In other words, if a proposal fell short of optimal in an equipment category, for example, the proposal would receive enough fewer points in the equipment category to correspond to the value in dollars by which the proposal was thereby reduced figured at roughly $4,000 per point. By submitting a proposal in response to the PEP, Telecom Plus signified that it understood and accepted the criteria upon which proposals were to be evaluated and the sole discretion of the LCSB evaluators to determine the bid rankings. 4/ Extensive testimony was received regarding the capabilities and features of both Telecom Plus' proposed NEAX 2400 telephone system and Centel's proposed SL-1N telephone system. In addition, the LCSB telecommunications consultants who performed the technical evaluation of the proposals detailed the relative merits of the two systems in their Evaluation Of Proposals dated October 11, 1985. In the Evaluation Of Proposals, points were awarded as follows: Centel Telecom Plus A. Equipment Proven Reliability (of 40) 40 35 System Architecture (of 40) 39 35 Reliability Considerations (of 40) 37 35 System Capacities (of 40) 32 40 System Features (of 35) 35 33 Instruments (of 35) 28 30 Data Considerations (of 35) 34 30 Call Accounting System (of 35) 28 35 TOTAL 273 273 B. Vendor 292 290 C. Financial 384 366 GRAND TOTAL 949 929 The points awarded in the equipment evaluation were justified with one minor exception. The LCSB consultants based their award of points in the "System Features" category on the assumption that the system proposed by Telecom Plus provided for 100 speed call assignments. Actually, that system provides 200 speed call assignments. Accordingly Telecom Plus should have been awarded an additional point. Since the Telecom Plus system received 20 points overall less than Centel's proposed system, the addition of one point to Telecom Plus' total point award would not change the outcome. Regarding proven reliability of the equipment proposed, Centel's proposed switch was first marketed by Northern Telecom in 1975. The switch was improved and modified over the years, and much of the SL-1N is "backward compatible" (i.e., uses components that could be used in prior versions of the switch) Telecom Plus' proposed NEAX 2400, in contrast, has been on the market only approximately 18 months. This gave Centel's proposal the advantage in this category. Regarding Systems Architecture, Centel's RPE proposal gave it the advantage in solving the peculiar need of the LCSB to provide an EPABX to serve two buildings at least 4500 feet apart (but especially in comparison with the Telecom Plus proposal). Regarding reliability considerations, Telecom Plus did not prove (either by documentation in its proposal or by evidence at the hearing) that its D Term telephone instruments will operate reliably at 4500 or more feet from its single telephone switch, as was proposed to provide telephone service for the Lively building. Telecom Plus did, however, delete from the manufacturer's literature included in its response to the RFP the manufacturer's recommendation that the D Term not be used more than 4500 feet from the switch. All these facts and circumstances result in an advantage to the Centel proposal. In the categories System Capacities, Instruments and Call Accounting System, Telecom Plus' proposal deserved and was given the advantage. Telecom Plus did not prove that its advantage should have been larger. In System Capacities, Telecom Plus' proposal received eight more points (worth roughly $32,000) for being "non-blocking" (i.e., all telephone instruments could be off- hook at the same time) although Centel's proposal met all specifications of the RFP. Centel's Call Accounting System is capable of less-than-desired 40,000 call records; Telecom Plus' has the desired 60,000 call record capacity and was given the maximum 35 points in this category. Telecom Plus did not prove that its Call Accounting System was worth more than seven points (roughly $28,000) more to the LCSB, especially since lack of capacity can be addressed by simply "dumping" call records twice as often. (See also footnote 3 above.) Regarding the financial category, Telecom Plus proved that the LCSB consultants erroneously used the pre-cutover price of $240 instead of the post- cutover price of $281 in figuring the cost of additional telephone sets anticipated to be needed during the first seven years of operation under the Centel proposal. This error deflated the total cost of the Centel proposal by approximately $3,000 over seven years. In light of the actual total cost of the Centel proposal, Centel should have received only 383 points in the financial category instead of 384 points, not enough of a difference to change the outcome of this case.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Leon County School Board enter a final order awarding a contract to Centel Business Systems to install the telephone communications system proposed in its response to the Request For Proposals in this case. RECOMMENDED this 5th day of December 1985, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of December 1985.
The Issue At issue is whether Respondent committed the offenses set forth in the Second Amended Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Stipulated Facts The Petitioner is the State Agency charged with the regulation of the practice of nursing pursuant to Chapters 20,456 (formerly Chapter 455, Part II; see Chapter 2000-160, Laws of Florida) and 464, Florida Statutes. Pursuant to the authority of Section 20.43(3)(g), Florida Statutes, the Petitioner has contracted with the Agency for Health Care Administration to provide consumer complaint, investigative and prosecutorial services required by the Division of Medical Quality Assurance, councils or boards, as appropriate, including the issuance of emergency orders of suspension or restriction. Respondent is Cynthia Chance. Respondent is a Licensed Practical Nurse in the State of Florida, having been issued license No. PN 0855441. On or between March 1997-May 1997, Respondent was employed by Health Force, a nurse-staffing agency. In or about March 1997, Respondent was assigned to work various shifts at Baptist Medical Center-Beaches. In or about March 1997, Respondent submitted time slips to Health Force alleging that she had worked an eight-hour shift on March 18, 1997. In or about March 1997, Respondent submitted time-slips to Health Force alleging that she had worked an eight-hour shift on March 21, 1997. Findings of fact based on the evidence of record Missing Drugs On May 13, 1997, Health Force received a "late call" from Cathedral Gerontology Center (Cathedral) needing a "stat" nurse because one of their nurses had not come to work. Tresa Streeter (now Calfee), administrator for Health Force, called Respondent who reported to Cathedral at 6:50 p.m. Kim Harrell, R.N., a supervisor at Cathedral, was the nurse who stayed until Respondent arrived. Also at 6:50 p.m. on May 13, 1997, Barbara Kelley, R.N., received and signed for a delivery of medications for residents from American Pharmaceutical Services. Included in that delivery was an order of Alprazolam (Xanax) and an order of Diazepam (Valium) for two residents on the floor where Respondent was working that evening. The delivery came with a separate medication or narcotics card for each medication. There were two floors of residents at Cathedral. Each floor had its own medication cart and its own nurse assigned to the floor. Controlled medications have a separate box in the medication cart with a separate key. The nurse on each floor had a key to her own medication cart but did not have a key to the medication cart of the other floor. The Director of Nursing (DON) also had a key to both medication carts in the event of an emergency such as a lost key. After receiving and signing for these drugs, Nurse Kelley locked the medications that belonged to her medication cart in it and inserted the narcotic cards for those medications into the notebook that corresponded to her cart. She then gave the medications and control sheets that belonged to Respondent's medication cart to Respondent, placing them in Respondent's hand. Nurse Kelley told Respondent that these were controlled drugs and instructed Respondent to lock up the medications in Respondent's medicine cart. There is conflicting testimony as to what happened next. Respondent admits to receiving the medications and the control cards. However, Respondent maintains that she placed the medications in the locked drawer of the medication cart and inserted the cards into the notebook in front of Nurse Kelley, whereas Nurse Kelley maintains that she walked away immediately after giving the drugs and cards to Respondent and did not see her place the drugs in the controlled drug lock box or the cards in the notebook. It was a policy at Cathedral for the out-going nurse to count controlled drugs with the on-coming nurse. When Respondent arrived on the night in question, she counted the controlled medications with Nurse Harrell. The narcotics count for both narcotics cards and actual doses was 16. At the end of her shift, Respondent counted the controlled medications with the on- coming nurse, Pamela Schiesser. The number of narcotics cards and tablets or doses was 16, the same as when Respondent came on duty. Nurse Schiesser was scheduled to work a double shift, 11 to 7 and 7 to 3. During the 11 to 7 shift, Nurse Schiesser was the only nurse for both floors of residents and she, therefore, had the key to both medication carts. Sometime during the 7 to 3 shift on May 14, 1997, Nurse Schiesser called the pharmacy to find out about a medication order she had placed for two residents so they would not run out. She was informed by the pharmacy that the drugs had been delivered the evening before and that they had been signed for by Nurse Kelley. She checked the delivery sheets and confirmed that Nurse Kelley had signed for the medications. After determining that there were no cards for the missing drugs and the drugs were not in the cart, she then reported to her supervisor, Kim Harrell, that the medication had been delivered but could not be located. Nurse Schiesser and Nurse Harrell checked the entire medication cart, the medication cart for the other floor and the medication room but did not find the missing medications. Nurse Harrell then notified the Assistant Director of Nursing (ADON), Lu Apostol, and the Director of Nursing (DON), Fely Cunanan, regarding the missing medications. The ADON began an investigation and secured written statements from all of the nurses on her staff who had access to the drugs: Nurses Kelley, Harrell, and Schiesser. She called Nurse Kelley to confirm that she had received the medications from the pharmacy and confirmed that the two missing medications, Alprazolam (Xanax) and Diazepam (Valium), were given by Nurse Kelley to Respondent. The ADON also called Tresa Streeter (now Calfee), the administrator of Health Force for whom Respondent worked to notify her of the missing medications. On May 14, 1997, Ms. Streeter (Calfee) called Respondent and informed her about the missing drugs. On May 15,2000, Ms. Streeter and Respondent went to Cathedral for a meeting. They were informed that the two missing drugs had not been located and they were shown the written statements of the other nurses. Respondent admitted that the drugs had been given to her the night before by Nurse Kelley, but stated that she had locked the drugs in her cart. She denied any further knowledge about the drugs. At Ms. Streeter's suggestion, Respondent took a blood test on May 15, 2000.1 The drug test result was negative thus indicating that the drugs were not in her blood at the time of the test, which was two days after the drugs were missing. No competent evidence was presented as to how long it takes for these drugs to leave the bloodstream. Cathedral had a policy that required that all controlled substances be properly accounted for and secured by each nurse responsible for the drugs. This policy was verbally communicated from the off-going nurse to the oncoming nurse. When Nurse Kelley gave the drugs and drug cards in question to Respondent, she specifically instructed Respondent to lock up the drugs in the narcotics drawer. Respondent maintains that other people had keys to her medication cart and could have taken the drugs after she put them in the locked narcotics box. This testimony is not persuasive. Every witness from Cathedral testified unequivocally that there was only one key in the facility for each medication cart and that key was in the possession of the nurse assigned to that cart. The only other key, which was in the possession of the Director of Nursing, was not requested or given to anyone at anytime material to these events. The persuasive testimony is that Respondent was the only person during her shift with a key to her medication cart. That key was passed to Nurse Schiesser who discovered that the drugs and narcotics cards were not in the medication cart or notebook. The count of the drugs and the cards on hand did not show that anything was missing at the change of shift from Respondent to Nurse Schiesser as the count was 16, the same as when Respondent came on the shift. If Respondent had put the drugs and corresponding cards in the medication cart, the count should have been 18. The only logical inference is that Respondent did not put the drugs or cards in the cart. In the opinion of the two witnesses accepted as experts in nursing and nursing standards, Respondent's failure to properly secure the narcotics and to document the receipt of these controlled drugs constitutes practice below the minimal acceptable standards of nursing practice. Time-Slips While employed by Health Force as an agency nurse, Respondent was assigned at various times to work at Baptist Medical Center-Beaches (Beaches). Respondent submitted time cards or slips for each shift she worked to Health Force so that she would be paid for the work. Respondent submitted time-slips for working at Beaches on March 18 and 21, 1997. When Health Force billed Beaches for these two dates, Anne Hollander, the Executive Director of Patient Services, the person responsible for all operations at Beaches since 1989, determined that Respondent had not worked on either March 18 or 21, 1997. Ms. Hollander faxed the time-slips back to Health Force for verification. She advised Health Force that Respondent was not on the schedule as having worked on either of those dates. She also advised Health Force that the supervisor's signatures on the two time-slips did not match anyone who worked at Beaches. Ms. Hollander is intimately familiar with the signatures of all the supervisors who are authorized to sign time-slips at Beaches and none of them have a signature like the signatures on the two time-slips. Health Force did an investigation and ended up paying Respondent for the two days, but did not further invoice Beaches. Health Force was never able to determine whose signatures were on the time-slips. Health Force did have Respondent scheduled to work at Beaches on March 21, 1997, but not on March 18, 1997. Beaches keeps a staffing sheet for every day and every shift. The supervisors are responsible for completion of the staffing schedules to ensure that the necessary staff is scheduled to work on each shift. These staffing sheets are used for both scheduling and doing the payroll. According to Ms. Hollander, it is not possible that Respondent's name was just left off the staffing sheets. The staffing sheets are the working sheets. If a person works who is not originally on the staffing sheet, the supervisor writes that person's name into the correct column at the time they come to work. Ms. Hollander has been familiar with these staffing sheets for 12 years and does not recall any time when someone's name has been left off the staffing sheet when he or she had worked. The two supervisors who testified, Erlinda Serna and Carol Lee, are equally clear that in their many years of experience as supervisors at Beaches, no one has worked and not been on the staff schedules. Anybody who worked would show up on the schedule. Every shift and every day should be on the staffing schedules. Ms. Serna is unaware of any time in her 10 years at Beaches that someone's name was left completely off the schedules, but that person actually worked. Respondent's name was on the staffing schedule for March 21, 1997, but it was crossed out and marked as cancelled. When agency nurses are scheduled at Beaches, but are not needed, they are cancelled with the agency. If the agency fails to timely notify the nurse and the nurse shows up for work, the agency must pay her for two hours. If the hospital fails to notify the agency timely and the nurse shows up for work, then the hospital must pay the nurse for two hours. In no event is a nurse who is cancelled paid for more than two hours. There are times when a nurse is cancelled and shows up for work, but the hospital has a need for the nurse either as a nurse or in another capacity such as a Certified Nursing Assistant (CNA). If that happens, the nurse's name is again written into the nursing unit staffing schedule. For March 18, 1997, Respondent's name is not on the schedule for Beaches. She did not work in any capacity on March 18, 1997. For March 21, 1997, Respondent's name was on the schedule, but she was cancelled. Even if she had not been timely notified that she was cancelled and she showed up for work, the most she could have billed for was two hours. If she had stayed and worked in a different capacity, her name would have been rewritten into the staffing schedule. Beaches is very strict and follows a specific protocol. No one except the supervisors is allowed to sign time cards. The signatures on these two time cards do not belong to any supervisor at Beaches. Therefore, it can only be concluded that Respondent did not work on March 18 or 21, 1997, at Beaches and that she submitted false time-slips for work she did not do on March 18 and 21, 1997. In June 1997, Respondent was also working as an agency nurse for Maxim Healthcare Services (Maxim). On June 8, 1997, Respondent submitted a time ticket to Maxim and to Beaches indicating that she had worked eight-hour shifts at Beaches on June 2, 3, 4, and 5, 1997. All four days were on the same time ticket and purported to bear the initials and signature of Carol Lee. This time ticket was brought to Ms. Hollander's attention because Beaches had a strict policy that only one shift could appear on each time slip. Even if a nurse worked a double shift, she would have to complete two separate time tickets, one for each shift. Under Beaches policy, no time ticket would ever have more than one shift on it. The time tickets are submitted to Ms. Hollander's office daily with the staffing schedules that correspond. Therefore, a time ticket for a person who is not on the staffing schedule would immediately stand out. When Ms. Hollander was given the time ticket for June 2-5, 1997, she investigated and reviewed the staffing sheets for those days. Respondent was not listed on any of the staffing schedules. Ms. Hollander then showed the time ticket to Erlinda Serna, who was the nursing supervisor on the 3 to 11 shift. Nurse Serna verified that Respondent had not worked on the shift any of those days. Ms. Hollander then showed the time-slip to Carol Lee, the 11 to 7 nursing supervisor. Carol Lee verified that she had not initialed or signed the time ticket and that the initials and signature were a forgery. Nurse Lee would not have signed a time ticket with more than one shift per time ticket because she was well aware of the policy prohibiting more than one shift per time ticket. Nurse Lee verified that Respondent had not been scheduled to work any of those days and that Respondent had not worked on June 3, 4, or 5, 1997. These inquiries to Nurse Serna and Nurse Lee took place within a few days after the dates for which Respondent had submitted this time ticket. Therefore, the matter was fresh in the minds of both nursing supervisors. Both are certain that Respondent was neither scheduled nor worked on June 2-5, 1997. Only nursing supervisors at Beaches are authorized to sign time tickets. Maxim Healthcare has a policy of never working a nurse in excess of 40 hours in one week. The same policy was in effect in 1997. Susan Ranson, the records custodian who also staffs for Maxim on the weekends and assists in their billing, indicated that Respondent was paid by Maxim for working at another facility the same week as June 2-5, 1997. June 2-5, 1997, are a Monday through Thursday. Specifically, Respondent submitted a time ticket to Maxim for another facility showing that she worked 12 hours on Saturday, June 7, 1997, and 13 hours on Sunday, June 8, 1997. Maxim pays from Monday through Sunday. If Respondent had worked 32 hours at Beaches on Monday through Thursday and then 25 hours at another facility on Saturday and Sunday, she would have worked more than 40 hours in one week, which would have violated their policy and would have required Maxim to pay overtime. When Maxim gets a request for a nurse and has no one to send who would not exceed 40 hours in one week, rather than exceed 40 hours, the agency does not staff the job. In the disciplinary document from Health Force dated June 18, 1997, Health Force advised Respondent that it would not be scheduling her based on the complaints they received regarding false billing, the missing drugs at Cathedral, and another incident at Beaches that occurred during this same time. Taken in its totality, the testimony of Respondent is not credible. Respondent's explanation of the discrepancy in the count of drugs and corresponding cards is that during her shift "there was [sic] one or two cards that only had one or two pills on them, so you just throw them away. And that's what made it back to 16." This explanation is unpersuasive. If there had been any pills left in the drawer from cards that Respondent threw away, the count would have been off at the change of shift. Moreover, several witnesses testified as to the care that is taken to carefully account for all narcotics. Respondent's assertion that narcotic pills were simply thrown away is not credible. Nurse Schiesser clearly remembered that there were no cards for the medications in question and there were no medications from this delivery in the medication cart. Respondent has been previously disciplined by the Board of Nursing in the Board's case No. 98-20122.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Respondent be found guilty of one count of violating Section 464.018(1)(h), Florida Statutes, by failing to secure and document receipt of the drugs at Cathedral Gerontology Center; That the Respondent be found guilty of one count of violating Section 464.018(1)(h), Florida Statutes, and of violating Rule 64B9-8.005(1), Florida Administrative Code, by falsifying employment and time records on multiple occasions; and That a penalty be imposed consisting of a fine of $1000 and payment of costs associated with probation, together with a reprimand and a three-year suspension of license to be followed by a two-year probation with conditions as deemed appropriate by the Board of Nursing. Reinstatement of Respondent's license after the term of the suspension shall require compliance with all terms and conditions of the previous Board Order and her appearance before the Board to demonstrate her present ability to engage in the safe practice of nursing, which shall include a demonstration of at least three years of documented compliance with the Intervention Project for Nurses. DONE AND ENTERED this 29th day of December, 2000, in Tallahassee, Leon County, Florida. BARBARA J. STAROS 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 29th day of December, 2000.
The Issue The issue in this case is whether Respondent, Peter N. Brawn, M.D., committed violations of Chapter 458, Florida Statutes, as alleged in an Administrative Complaint filed by Petitioner, the Department of Health, on January 21, 2004, in DOH Case Number 2002-15991; and, if so, what disciplinary action should be taken against his license to practice medicine in the State of Florida.
Findings Of Fact Petitioner, the Department of Health (hereinafter referred to as the "Department"), is the agency of the State of Florida charged with the responsibility for the investigation and prosecution of complaints involving physicians licensed to practice medicine in Florida. § 20.43 and Chs. 456 and 458, Fla. Stat. (2005). Respondent, Peter N. Brawn, M.D., is, and was at the times material to this matter, a physician licensed to practice medicine in Florida, having been issued license number ME 75202. Dr. Brawn is board-certified in pathology. Dr. Brawn has not previously been the subject of a disciplinary proceeding in Florida. Dr. Brawn's address at the times relevant to this proceeding was 525 Caroline Street, Key West, Florida 33040. His telephone number was (305) 292-1917. Dr. Brawn's Prescription Dispensing Log of May 14, 2002. Dr. Brawn's prescription dispensing log for May 14, 2002, indicates that Carisoprodol was dispensed to an individual whose initials are J.T. This individual's name is identical, except for the last letter of his last name, to Patient J.T., the patient at issue in the Administrative Complaint. The last letter of the individual listed in the log is "r" (hereinafter referred to as "J.Tr"), while the last letter of the patient in the Administrative Complaint is a "z" (hereinafter referred to as "J.Tz"). The Events of May 17, 2002. On or about May 17, 2002, Douglas Lee Howard, a police officer with the police department of the City of Tustin, Orange County, California, was serving as a resource officer at Tustin High School. Officer Howard was summoned to the assistant principal's office at approximately noon. When he arrived, he observed a student, J.Tz, who had been removed from his classroom, leaning against the wall, falling asleep. J.Tz is the same individual identified in the Administrative Complaint as Patient J.T. J.Tz was 16 years of age at the time of this incident. Officer Howard told J.Tz to go into the assistant principal's office and sit down. J.Tz complied, running into a lobby counter and the office doorjamb on the way. When he attempted to sit, he sat on the arm of the chair, nearly tipping the chair over. When asked if he had taken any drugs, J.Tz produced a white plastic medicine bottle (hereinafter referred to as the "Medicine Bottle"), from his pants pocket. The permanent manufacturer's label on the Medicine Bottle indicates that it contained 100 350 mg tablets of Carisoprodol, commonly referred to as "soma." This is the same medication which Dr. Brawn dispensed on May 14, 2002, to J.Tr. Carisoprodol is a legend drug which acts as a muscle relaxer and is used for muscle strains. Physiologically, it causes drowsiness, dizziness, and loss of coordination or ataxia, all symptoms that were exhibited by J.Tz on May 17, 2002. The Medicine Bottle also contained a printed label (hereinafter referred to as the "Added Label") which had been pasted onto it which included the following information: Peter Nelson Brawn, M.D. 525 Caroline St. Key West Florida 33040 305.292-1917 1-888-491-4545 Patient Name J[] T[] Date Dispensed 5/14/02 Name & Strength of Drug Directions for Use 1 tablet 4X/day The "Patient Name," "Date Dispensed," and "Directions for Use" had been written in ink on the Added Label. The last name of the patient name written on the Added Label can be read as either J.Tz or J.Tr. Officer Howard confiscated the Medicine Bottle from J.Tz. Officer Howard and a school nurse counted 84 pills remaining in the Medicine Bottle. Officer Howard, after asking J.Tz where he had obtained the pills, called the toll-free telephone number listed on the Added Label, a number listed next to Dr. Brawn's name and his address and phone number of record. He spoke to an individual who identified himself as Peter Brawn. The individual he spoke with indicated that, while he had no record of dispensing any medication to J.Tz, he did have a record of having dispensed Carisoprodol to J.Tr on the date in question. The individual Officer Howard spoke with also indicated that J.Tr had reported his age to be 18. The information disclosed to Officer Howard was medical information which would not have been generally known by anyone other than Dr. Brawn. Officer Howard had never spoken to Dr. Brawn and, therefore, could not have identified the individual he spoke to as Dr. Brawn through voice recognition. Based upon the fact that the phone number Officer Howard called was listed on the Added Label next to Dr. Brawn's name, address, and phone number, the fact that the individual identified himself as "Dr. Peter Brawn," and the fact that the individual disclosed medical information which Dr. Brawn was privy to, it is found that the individual Officer Howard spoke to was in fact Dr. Brawn. Dr. Brawn explained to Officer Howard that he had prescribed the Carisoprodol to J.Tr after being contacted by him through two e-mails. Dr. Brawn admitted that he had not spoken to J.Tr and that he had not confirmed any medical history. Having not spoken to J.Tr, it is found that he also did not perform any physical examination of J.Tr. Finally, given the foregoing, it is found that J.Tr and J.Tz are the same individual. It is, therefore, concluded that the J.Tr Dr. Brawn dispensed Carisoprodol to on May 14, 2002, is the Patient J.T. of the Administrative Complaint. Medical Records. Based upon the admissions against interest made by Dr. Brawn to Officer Howard during the May 17, 2002, telephone conversation Officer Howard testified about, it is found that Dr. Brawn, not having taken any medical history of J.Tr and not having given him an examination, did not make any medical record to support his dispensing Carisoprodol to Patient J.T. Without Dr. Brawn's admissions against interest, the evidence failed to prove that Dr. Brawn did not have medical records relating to the medications he provided to J.Tr. No direct evidence, other than phone conversation, was presented that would support a finding that such records do not exist. On or about February 27, 2003, the Department had served a subpoena on Dr. Brawn, through counsel, requesting the following: All medical records and reports for J[] T[z], DOB . . . including but not limited to, patient histories, examination results, treatments, x-rays, test results, records of drugs prescribed, dispensed, or administered, and reports of consultations and hospitalizations. In the "Application Affidavit for Patient Records Subpoena Without Patient Release" which was used to get permission for serving the subpoena on Dr. Brawn, J.Tz is also referred to as "a/k/a Tr." Despite the Department's awareness of the possibility that J.Tz and J.Tr were the same individuals, the subpoena actually served on Dr. Brawn did not request any medical records or other information relating to J.Tr. By letter dated March 12, 2003, Dr. Brawn, through counsel, informed the Department that he had "no medical records responsive to th[e] subpoena." The Standard of Care. Keith Fisher, M.D., accepted as an expert, testified convincingly and credibly that a reasonably prudent physician, similarly situated to Dr. Brawn, would, before dispensing Carisoprodol, a legend drug: (a) obtain a complete medical history of the patient; (b) make a diagnosis, prepare a treatment plan for the patient, and keep a medical record for the patient; and (c) perform a physical examination of the patient to determine that the patient was truly in need of Carisoprodol. Dr. Brawn failed to take any of the steps Dr. Fisher opined were necessary before dispensing Carisoprodol. Dr. Brawn dispensed the Carisoprodol to Patient J.T. based upon two e-mails he received. He did not conduct any examination of Patient J.T. and he did not obtain a medical history of Patient J.T. These findings, again, are based upon the telephone conversation between Dr. Brawn and Officer Howard. Without those admissions, the evidence in this case failed to prove, however, that Dr. Brawn did not carry out the responsibilities described by Dr. Fisher when he dispensed Carisoprodol to who he believed was J.Tr, but was actually Patient J.T. The Admissibility of Officer Howard's Deposition. Officer Howard's deposition, Petitioner's Exhibit 1, was taken by telephone on July 12, 2002, just over two weeks before the final hearing. Officer Howard's deposition was taken by telephone because he works and resides in California. No order was obtained from this forum or any court to take the deposition by telephone. The Notice of Taking Deposition sent to Dr. Brawn scheduling Officer Howard's deposition indicates that it was to be taken by telephone. It also put counsel for Dr. Brawn on notice of the following: "This deposition is being taken for purposes of discovery, for use at an administrative hearing, or any other purpose for which it may be used under applicable laws of the State of Florida." [Emphasis added]. At no time before or during the deposition was any objection made by counsel for Dr. Brawn to the manner in which the deposition was taken. In particular, no objection was made to taking the deposition by telephone. By his silence, Dr. Brawn gave tacit agreement to the taking of Officer Howard's deposition by telephone. In addition to the foregoing, the Joint Pre-Hearing Stipulation filed by the parties only two days after Officer Howard's deposition was taken does not list Officer Howard as a witness, and the transcript of Officer Howard's deposition is listed as a potential Petitioner's exhibit. Given these facts and the fact that Dr. Brawn was aware that Officer Howard works and resides in California, it is inferred that Dr. Brawn knew or should have known that the deposition would be offered in lieu of Officer Howard's appearance and testimony at hearing. Yet, counsel for Dr. Brawn waited until hearing to raise any objection to the admissibility of Officer Howard's deposition testimony. While part of Officer Howard's testimony constitutes hearsay testimony, in particular, comments made to him by J.Tz, no finding of fact has been based upon such testimony. For example, while Officer Howard testified that J.Tz told him who he obtained the pills from and how, that testimony has not been relied upon to make a finding as to how J.Tz got the pills. During Officer Howard's testimony, he referred to seven photographs which he had taken of the Medicine Bottle. Those photographs were taken by Officer Howard on May 17, 2002. While Dr. Brawn objected during the deposition to their admissibility, he did not state the basis of his objection. At hearing, Dr. Brawn objected to the admissibility of not only the photographs, but also to the entire deposition, suggesting that he had not been able to effectively cross examine Officer Howard about the photographs because he did not have them before him while the deposition was being taken. Officer Howard, however, used the photographs to refresh his memory and described adequately what they depicted. His testimony alone, without regard to any consideration of the photographs, supports the findings made herein. Additionally, the Department's file on Dr. Brawn, which had been provided to Dr. Brawn, contained a single-page copy of an e-mail with all the photographs testified to by Officer Howard. Those smaller photographs, which were available during the deposition, and Officer Howard's description of the Medicine Bottle and its labels, were adequate to eliminate any prejudice to Dr. Brawn.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the a final order be entered by the Board of Medicine finding that Peter N. Brawn, M.D., has violated Section 458.331(1)(m), (q), and (t), Florida Statutes (2001), as described in this Recommended Order; suspending his license for a period of two years from the date of the final order; and requiring that he pay an administrative fine of $15,000.00. DONE AND ENTERED this 2nd day of September, 2005, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 2nd day of September, 2005. COPIES FURNISHED: Patrick L. Butler Ephraim D. Livingston Assistants General Counsel Prosecution Services Unit Office of General Counsel Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Sean M. Ellsworth, Esquire Ellsworth Law Firm, P.A. 404 Washington Avenue, Suite 750 Miami Beach, Florida 33139 Larry McPherson, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Timothy M. Cerio, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Dr. John O. Agwunobi, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701
The Issue The issue in this matter is whether Respondent timely requested an administrative hearing to contest an Administrative Complaint.
Findings Of Fact The Department is the state agency charged with regulating the practice of nursing assistance in Florida. See §§ 20.43(3)(g)8. and 464.201-.208, Fla. Stat. Respondent is a certified nursing assistant (“CNA”) in the State of Florida, having been issued certification number CNA 95701. On June 28, 2017, the Department filed an Administrative Complaint against Respondent’s CNA certificate. The Administrative Complaint alleged that Respondent committed “unprofessional conduct” in April 2017 while working at Titusville Rehabilitation & Nursing Center. On June 29, 2017, the Department mailed the Administrative Complaint to Respondent’s address of record with the Department via Certified U.S. Mail. At that time, Respondent’s address of record was 844 Faull Drive, Apartment A, Rockledge, Florida 32955. On August 2, 2017, the Administrative Complaint was returned to the Department as “unclaimed.” On both August 24, 2017, and September 5, 2017, the Department attempted to personally serve the Administrative Complaint on Respondent at the 844 Faull Drive, Rockledge, Florida, address. The service by hand was not successful. Thereafter, the Department published a Notice of Action in Brevard County, Florida, in the Florida Today newspaper for four consecutive weeks beginning on October 2, 2017. On November 8, 2017, Respondent called the Department. He reached Kristen Summers. Ms. Summers is the Department attorney assigned to Respondent’s case and works in the Department’s Prosecution Services section. During the call, Respondent expressed to Ms. Summers that he had not received the Administrative Complaint. Respondent also apprised Ms. Summers that he had a new mailing address of 1946 Otterbein Avenue, Apartment 604, Cocoa, Florida 39296. That same day, November 8, 2017, Ms. Summers arranged for the Department to mail the Administrative Complaint, together with an Election of Rights form, to Respondent at his new address of 1946 Otterbein Avenue, Apartment 604, in Cocoa, Florida. At the final hearing, Respondent admitted that he received the Administrative Complaint, as well as the Election of Rights form, on November 20, 2017. The Administrative Complaint included a NOTICE OF RIGHTS, which stated: A request for petition for an administrative hearing must be in writing and must be received by the Department within 21 days from the day Respondent received the Administrative Complaint, pursuant to Rule 28-106.111(2), Florida Administrative Code. If Respondent fails to request a hearing within 21 days of receipt of this Administrative Complaint, Respondent waives the right to request a hearing on the facts alleged in the Administrative Complaint pursuant to Rule 28-106.111(4), Florida Administrative Code. The Election of Rights form included a provision, which stated: In the event that you fail to make an election in this matter within twenty-one (21) days from receipt of the Administrative Complaint, your failure to do so may be considered a waiver of your right to elect a hearing in this matter, pursuant to Rule 28- 106.111(4), Florida Administrative Code, and the Board may proceed to hear your case. Based on the receipt date of November 20, 2017, 21 days after Respondent received the Administrative Complaint was December 11, 2017. At the final hearing, Ms. Summers conveyed that she further communicated with Respondent between November 20, 2017, and December 11, 2017. During their conversation, Ms. Summers notified Respondent that the Department had not received his Election of Rights form. She also stressed to Respondent that, in order to contest the Administrative Complaint, he must submit a written request to the Department before the expiration of the 21-day deadline. In response to Ms. Summers’ remarks, Respondent claimed that he had faxed an Election of Rights form to the Department. Thereafter, Ms. Summers “never looked harder” to locate a fax from Respondent. After a thorough search, however, she concluded that the Department had not received Respondent’s Election of Rights form, or any other document requesting an administrative hearing, on or before December 11, 2017. Despite the fact that she had no record that Respondent had timely submitted an Election of Rights form by December 11, 2017, Ms. Summers magnanimously agreed to extend the deadline for Respondent to file a written request for a hearing. At the final hearing, Ms. Summers explained that during her communications with Respondent, he expressed his desire to contest the Administrative Complaint. However, for some reason his attempt to do so had been unsuccessful. Therefore, in December 2017 (but after December 11, 2017), Ms. Summers told Respondent that, if he still wished to dispute the allegations against him, she would accept his Election of Rights form. Ms. Summers did not give Respondent a specific deadline in which to comply. By March 2018, however, after waiting approximately three months, Ms. Summers still had not received Respondent’s Election of Rights form. She determined that she could not extend the deadline any longer. Therefore, on March 20, 2018, Ms. Summers sent a letter to Respondent at all of his known addresses via Certified U.S. Mail. In her letter, Ms. Summers wrote that the Department’s records indicated that Respondent had received the Administrative Complaint on November 20, 2017. However, the Department still had no evidence that he had submitted the Election of Rights form, or any other responsive pleading, contesting the Administrative Complaint. The letter then specifically instructed Respondent to return the Election of Rights form to Ms. Summers’ office “via mail, fax, or electronic mail within ten days of the mailing of this letter.” Ms. Summers concluded her letter by warning Respondent that “[f]ailure to return the Election of Rights form within this period of time will result in your case being forwarded to the Board of Nursing for determination of waiver and entry of a final order.” Ten days from the date of Ms. Summers’ letter was March 30, 2018. With her letter, Ms. Summers included another copy of the Administrative Complaint and the Election of Rights form. Both the letter and the Election of Rights form included Ms. Summers’ address, telephone number, and fax number at the Department. On March 28, 2018, Respondent received, and signed for, Ms. Summers’ letter at his address on 1946 Otterbein Avenue in Cocoa, Florida. On April 11, 2018, 22 days after the date of Ms. Summers’ letter (and 14 days after Respondent signed for the letter), the Department received, in the mail, an Election of Rights form completed by Respondent. On the form, Respondent indicated that he disputed the allegations of material facts contained in the Administrative Complaint. Respondent also wrote: I have been cleared from [the Department of Children and Families] and a settlement has been reached [with] Titusville Rehabilitation and Nursing Center. I have been going thru some [sic] much and I’m so anxious to get back [to] my profession and what I love to do. I was with this company for 10 1/2 years. I’ve suffered enough humility and false allegations. With his Election of Rights form, Respondent included a letter, dated December 22, 2017, entitled ACKNOWLEDGMENT OF RECEIPT OF SETTLEMENT CHECK (the “Acknowledgment Letter”). The body of the Acknowledgment Letter, which was prepared by a law firm, recorded that Anthony Chambers (Respondent) acknowledged receipt of a check to settle the matter of “Anthony Chambers (SEIU-1199) v. Fl-Titusville Rehabilitation and Nursing Center.” At the final hearing, Respondent fervently declared that he is innocent of the underlying allegations of misconduct at the Titusville Rehabilitation & Nursing Center. Respondent professed that the Florida Department of Children and Families has cleared him of all wrongdoing. Therefore, he was extremely frustrated that the Department continues to pursue this matter, which is preventing him from returning to work as a CNA. Respondent testified that he sent proof to the Department before April 2018 that he did not commit the alleged unprofessional misconduct. At the final hearing, Respondent explained that his proof was the Acknowledgment Letter. As stated above, the Acknowledgment Letter was dated December 22, 2017. When confronted with this fact at the final hearing, Respondent conceded that he did not provide this letter to the Department until after that date. However, he insisted that he submitted it before Christmas via Certified Mail. Respondent did not offer evidence to support this statement. Conversely, Ms. Summers maintained that the Department did not receive any documents from Respondent in December 2017. More importantly, Ms. Summers testified that the Department did not receive an Election of Rights form from Respondent until April 11, 2018. Respondent did not dispute Ms. Summers’ representation that the first time he submitted his Election of Rights form was in April 2018. Based on the evidence set forth at the final hearing, the Department established that Respondent did not file a petition requesting administrative review within 21 days of receipt of the Administrative Complaint. Further, Respondent did not prove that he may circumvent the filing deadline based on the defense of equitable tolling. Therefore, Respondent’s petition for an evidentiary hearing must be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Health enter a final order dismissing Respondent’s request for an administrative hearing as untimely filed. DONE AND ENTERED this 13th day of February, 2019, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 13th day of February, 2019.
Conclusions Mr. Klein had a duty to operate the van he was driving on the day of the accident with reasonable care. See ss. 316.183(1), 316.1925(1), F.S. Mr. Klein breached that duty when he was distracted by a cellular phone call at or around the time of the accident or otherwise not paying full attention to the road at the time of the accident. Mr. Klein’s negligent operation of the van was a proximate cause of the accident that resulted in Angelica’s death. Mr. Klein was acting within the course and scope of his employment at the time of the accident. Therefore, the County is responsible for Mr. Klein’s negligence. Angelica violated s. 316.130(10) and/or (11), F.S., when she attempted to run across SR 436 in the middle of the block rather than at a cross-walk and, as a result, Angelica’s own negligence contributed to her death. The percentage of fault allocated to Angelica by the jury -- 39 percent -- is reasonable under the circumstances. Ms. Wagner’s failure to supervise Angelica on the night of the accident was, in my view, irresponsible and unreasonable. Ms. Wagner knew or should have known that Angelica might cross SR 436 based upon prior instances of her crossing the road without permission. Furthermore, it is irresponsible and unreasonable for Ms. Wagner to allow an 11-year-old child to be unsupervised and to stay out on her own until 9:00 p.m., which was after dark. Ms. Wagner’s negligent supervision of Angelica contributed to her death because if she had been supervised she would not have gone across SR 436 in the first place. Thus, notwithstanding the jury verdict on this issue, I find that a portion of the fault for Angelica’s death should be apportioned to Ms. Wagner and, in my view, a figure of 10 percent is reasonable. In summary, I conclude that liability for Angelica’s death should be apportioned as follows: 51 percent to the County; 39 percent to Angelica; and 10 percent to Ms. Wagner. As to the damages, I find the amounts awarded by the jury -- $8,000 in funeral expenses and $1.4 million in non-economic damages -- to be reasonable. The amount of the claim bill should be reduced to reflect a set-off of the $8,000 received by Ms. Wagner from another source (i.e., Angelica’s uncle) to pay the funeral expenses and to reflect the allocation of a portion of the fault to Ms. Wagner. As adjusted, the claim bill should be for $652,080, which is calculated as follows: $1,408,000 (verdict) x 51% (County’s revised share of liability) = $718,080 + $42,000 (taxable costs) - $100,000 (partial satisfaction by County) - $8,000 (set-off for funeral expenses paid by uncle). ATTORNEY’S FEES AND LOBBYIST’S FEES: The claimant’s attorney provided an affidavit stating that that attorney’s fees will be capped at 25 percent in accordance with s. 768.28(8), F.S. The attorney’s fees will be $163,020 if the bill is approved at the amount recommended. The lobbyist’s fees are in excess of the 25 percent attorney’s fee, and according to the contract between the claimant’s attorney and the lobbying firm, the lobbyist’s fees will be an additional 5 percent of the final claim. Thus, the lobbyist’s fees will be approximately $32,604 if the bill is approved at the amount recommended. The bill, as filed, provides that payment of attorney’s fees, costs, and lobbyist’s fees are limited to 25 percent of the final claim. If that language remains in the bill and the claim is paid in the amount recommended, the claimant will receive $489,060 and the balance of $163,020 will go towards attorney’s fees, costs, and lobbyist’s fees. If that language was not in the bill, the claimant would receive only $456,456. LEGISLATIVE HISTORY: This is the second year that this claim has been presented to the Legislature. Last year’s bill, SB 62 (2007), was not referred to committee. RECOMMENDATIONS: For the reasons set forth above, I recommend that Senate Bill 26 (2008) be reported FAVORABLY, as amended. Respectfully submitted, T. Kent Wetherell Senate Special Master cc: Senator Gary Siplin Faye Blanton, Secretary of the Senate House Committee on Constitution and Civil Law Counsel of Record
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the app.ellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE / , I CERTIFY that a true and correct_.sgpy of this Final Order was served on the below-named 7 persons by the method designated on this c..,i,.y of 2012. ru Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Facilities Intake Unit (Electronic Mail) Finance & Accounting Revenue Management Unit (Electronic Mail) Nelson E. Rodney Office of the General Counsel Agency for Health Care Administration (Electronic Mail) Jeffrey Jones American Staffing, Inc. 601 North Congress Avenue, #113 Delray Beach, Florida 33445 (U.S. Mail) Stuart M. Lerner Administrative Law Judge Division of Administrative Hearings (Electronic Mail) 2
