The Issue Whether Respondent engaged in an unlawful employment practice with regard to Petitioner because of Petitioner's asserted disability.
Findings Of Fact At the time of the hearing, Ms. Hays was 36 years of age and was unemployed. During times pertinent she lived in Chattahoochee, Florida. The Hospital in Chattahoochee, Florida, is a large residential mental health facility operated under the auspices of the Department. The Hospital also administratively supports employees of the Agency for Persons with Disabilities. The Hospital is an employer as that term is defined in Subsection 760.02(7), and thus subject to the Florida Civil Rights Act of 1992. Ms. Hays, prior to her employment with the Hospital, worked for various employers in clerical and secretarial positions. She began working at the Hospital in 2000. She was employed in a temporary position in Unit 25 as a Clerk Typist Specialist. After two weeks on the job, she was moved to Unit 14 and worked as a Human Service Worker I. This was also a temporary position. In this latter position, she took care of elderly residents. She bathed them, fed them, and otherwise helped them with their daily needs. She also escorted them to off-campus appointments. She received a "Review and Performance Planning" document signed by her on June 19, 2000, which indicated that she was performing in a satisfactory manner. She was hired in a full-time position as a Human Service Worker I in August 2000 in Unit 31/32. In this position her duties included assisting nurses in the medical unit of the Hospital. A "Review and Performance Planning" document signed by Ms. Hays on January 30, 2001, stated that she achieved standards and included some complimentary remarks. In July 2001, she was moved to Unit 29 as a Human Service Worker I. Unit 29 is also known as the Mentally Retarded Defendant Program (MRDP) or MRDP 29. She received a "Review and Performance Planning" document that she signed on March 29, 2002. She received an overall evaluation of "3.81." A performance rating of "4" means that she consistently met and often exceeded expectations. A "5" is the highest rating one can obtain at the Hospital. Her next rating for the period March 2002 until July 2002, resulted in a grade of "4." During the period July 20, 2002, until March 1, 2003, she did not receive a rating because she was not working at the Hospital during the evaluation period. Nevertheless, Annette Bates, Ms. Hays' supervisor, noted that she was a good worker and an asset to MRDP 29. Ms. Hays was injured on November 27, 2001, while exiting the "big blue bus." She slipped on wet steps, and her lower back and neck impacted the steps. A physician, Dr. K. W. Richardson of Chattahoochee, reported that the injury sustained was a broken tail bone. He noted this in a "First Report of Injury or Illness" dated November 28, 2001. Ultimately the diagnosis was changed to two bulging disks. Pain medication was prescribed, but she never required surgery. Wages paid to her, by the Hospital, $751.63 bi-weekly, terminated on December 4, 2001. Subsequently, she was paid workers' compensation benefits. She was informed she could work, but could not lift more than ten pounds and could not have contact with patients. She was authorized to work only at a desk job. Ms. Hays returned to work at the Hospital on January 18, 2002. She was placed on light duty and assigned to the Medical Records Section at MRDP. She filed documents and did other tasks as assigned. Her supervisor was a Ms. Lawrence. On July 18, 2002, her light-duty status expired and because the Hospital could not accommodate her restrictions, she was sent home and provided workers' compensation benefits. She continued to receive workers' compensation benefits until December 2004, when she reached maximum medical improvement. In December 2004, she was contacted by Tracy Wallace and as a result, Ms. Hays met with Margaret Forehand. Ms. Forehand, at that time, was the Hospital's Workers' Compensation Coordinator. She told Ms. Hays that a position was available in MRDP, Unit 29, and invited her to apply for it. Ms. Hays completed a State of Florida Employment Application. She was thereafter employed as a "clerk typist specialist - F/C" at a salary rate of $754.24, which was, on a bi-weekly basis, $39.70 less than she was receiving before her injury. (The designation F/C means forensic corrections.) Ms. Hays' Letter of Acceptance, dated December 7, 2004, and accepted by Ms. Hays on December 7, 2004, informed her that her position was probationary for 12 months. The letter was written on Department stationery, but was signed by David English, Program Operations Administrator, who worked for the Agency for People with Disabilities. He has the ultimate hiring authority for the employees of MRDP. Although termed a "demotion," the lower pay was actually the result of Hospital policy that was applied to all employees who returned from an absence subsequent to being placed on workers' compensation. This job was not preceded by an interview. The person who became her supervisor, Shellie Owens, was not involved in Ms. Hays' hiring process. Ms. Hays' ultimate employer was the Department. Ms. Hays' duties as a "clerk typist specialist- F/C" included filing, typing, and answering and referring calls. She filed ward charts, "thinned charts," and ensured that ward charts and central files were maintained in accordance with Hospital policies, among other tasks. Her duties were set forth in a "Career Service System Position Description." Her section was denoted "MRDP." She was physically able to perform these duties without an accommodation. Her daily work was not in the least affected by any injury or disability. The evidence indicates that both Ms. Hays and Ms. Owens' ultimate employer was the Agency for Persons with Disabilities. Ms. Owens was aware that Ms. Hays had been on workers' compensation for a time. Ms. Owens knew that Ms. Hays could not lift more than ten pounds and was aware that the job did not require lifting more than ten pounds. No evidence was adduced indicating that Ms. Owens perceived Ms. Hays as disabled. Because entries are frequently entered in patients' ward charts, they would grow quite large if not managed. It is necessary for some of the information to permanently remain in ward charts, but a substantial portion may be stored elsewhere. The portions of the charts that are not required to remain in the ward are permanently stored in the Medical Records Office. The process of removing designated matter from the ward charts is called "thinning." Thinning was an important part of Ms. Hays' job. She had to "thin" in accordance with a schedule. Some documents would be left in ward charts for three months, some would be kept if they were only the most recent of a type, and some were kept as long as needed. Some were permanent and, therefore, never removed. It was important also, as part of the process, that Ms. Hays ensure that documents in ward charts were arranged in the proper order. For the rating period December 7, 2004, until March 1, 2005, Ms. Owens evaluated Ms. Hays as a "3." In the written portion of the evaluation, Ms. Owens noted that Ms. Hays had a pleasant personality and was willing to assist others. Ms. Owens' job title is Health Information Specialist Supervisor. In addition to Ms. Hays, during times pertinent, Ms. Owens supervised from three to four other people. On April 19, 2005, approximately six weeks after receiving her evaluation, Ms. Hays was counseled by Ms. Owens. Ms. Owens told her she needed to improve in some areas and that her desk was not tidy. She provided Ms. Hays with a schedule of daily assignments designed to help Ms. Hays improve. Ms. Owens memorialized her discussion with Ms. Hays in a memorandum dated April 19, 2005. In the memorandum, she noted that Ms. Hays had been provided with the MRDP Worksite Orientation Requirement Worksheet on February 25, 2005, and that Ms. Hays understood her duties and acknowledged that by signing it. The memorandum recited that Ms. Hays' work was backed up and that her desk had food and drink on it that could have been spilled on documents which were on the desk. The memorandum also reminded Ms. Hays that she was a probationary employee. Ms. Owens also gave Ms. Hays a "daily schedule" that had an effective date of April 25, 2005. Ms. Hays and Ms. Owens both signed it. The "daily schedule" informed Ms. Hays exactly what she was to do every day of the week. In Ms. Hays' opinion, she followed "every word" of the schedule, and Ms. Owens did not indicate that there was any problem with her work immediately subsequent to the implementation of the "daily schedule." Ms. Owens conducted an audit of the charts maintained by Ms. Hays on May 20, 2005, and reduced the results to writing. The information developed in the audit caused Ms. Owens to conclude that Ms. Hays' work was not improving. Ms. Owens believes that medical records are extremely important and keeping them in good order is a necessity. Her audit found that Ms. Hays was not keeping them in good order. She found her work to be unacceptable. She discussed the matter with Les Smith, the Residential Services Director of Forensic Corrections. He was her immediate supervisor. Ms. Owens then talked to Amy Bryant the Hospital's Employee Relations Counselor with regard to procedures to be followed in terminating an employee. She wanted to comply with procedures. Ultimately a meeting occurred attended by Ms. Owens, Les Smith, David English, and an attorney for the hospital, Amy Tillman. During this process, the decision to offer Ms. Hays the opportunity to resign in lieu of being fired, was finalized. On May 24, 2005, Ms. Hays was ordered by Ms. Owens to report to Mr. Smith's office. Mr. Smith is Ms. Owens' supervisor. When she arrived, she was given the choice of resigning or being fired. If she had not resigned, she would have been fired immediately. Ms. Hays was surprised when she was informed of this choice. She resigned in a handwritten letter dated May 24, 2005. This was her last day of work at the Hospital. As a probationary employee, she had no right to appeal what amounted to a discharge. Bernice King worked at the Hospital with Ms. Hays. She was a Human Service Worker II in MRDP 29. She had an opportunity to observe Ms. Hays' work. Ms. King used the charts maintained by Ms. Hays, and she found them to be in good order. Danielle Rene Shaw worked at the Hospital with Ms. Hays. She was a Human Service Worker II in MRDP 29. She had an opportunity to observe Ms. Hays' work. Ms. Shaw used the charts maintained by Ms. Hays, and she found them to be in good order. She thought Ms. Hays was a hard worker. Mark Flodin, M.D., worked as a physician in MRDP 29 when Ms. Hays was working there, and he had an opportunity to observe her performance. He noted that she was a hard worker and had a professional attitude. He said she maintained the ward charts in an orderly fashion. He was surprised when she was terminated. Ms. Hays' position was filled by Ms. Ryan Smith, who came to the Hospital from another state agency. She was paid at the rate of $828.17 bi-weekly. Ms. Hays applied for over a hundred jobs with the State of Florida using the state's website, MyFlorida.com. She also sought employment with 15 private employees. She was interviewed twice, but received no job offers. She was never offered an interview at the Hospital. She received unemployment compensation for about six months after she left the Hospital. Subsequent to her departure from the Hospital, and her inability to secure other employment, she had to have her depression medicine, Zoloft, increased, but she still feels depressed and worthless. She is also taking Chlonzpam, an anti- anxiety drug, and Wellbutrin. Ms. Hays' mother works at the Hospital, as a licensed practical nurse, and her husband was once employed there also. Her father is retired from employment at the Hospital, and her grandmother and grandfather worked there.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations dismiss the Petition of Alicia Hays. DONE AND ENTERED this 25th day of July, 2007, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 25th day of July, 2007. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Carolyn Dudley, Assistant Staff Director Department of Children and Family Services 1317 Winewood Boulevard Building 1, Room 101F Tallahassee, Florida 32399-0700 Sharon L. Ray, Esquire Agency for Persons with Disabilities 3700 Williams Drive Marianna, Florida 32446 Erika E. Bush, Esquire Marie A. Mattox, P.A. 310 East Bradford Road Tallahassee, Florida 32303 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether Petitioner's request for an exemption from disqualification from employment in a position of special trust should be granted.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: This case involves a request by Petitioner, Bobby Jones, for an exemption from disqualification from employment in a position of special trust. If the request is approved, Petitioner would be allowed to return to work as a unit treatment rehabilitation specialist in a unit for developmentally disabled adults at Florida State Hospital (FSH). Respondent, Department of Children and Family Services (DCFS), is the state agency charged with the responsibility of approving or denying such requests. In a preliminary decision entered on an unknown date, a DCFS committee denied the request. Petitioner is now barred from doing such work because of a disqualifying offense which occurred on June 4, 1989. On that date, Petitioner was arrested for the offense of "battery- domestic," a misdemeanor under Section 784.03(1)(a), Florida Statutes (1987). According to Petitioner, the victim in the incident was his former wife. Thus, the offense constituted domestic violence as it subsequently became defined in 1994 by Section 741.28, Florida Statutes. Petitioner entered a plea of guilty to the charge of "battery" on August 10, 1989. He was fined $75.00, and he was placed on probation for a period of "up to 9 months." In addition, the court retained jurisdiction "to [o]rder rest[itution]," and Petitioner was required to complete a mental health counseling program. Petitioner successfully completed all terms of his probation, including the counseling course which lasted around "six to nine months." In October 1989, Petitioner began working at FSH as a human services worker in a unit for developmentally disabled adults. Eventually, he attained the position of unit treatment rehabilitation specialist, a position involving supervision of developmentally disabled adults. Due to a change in the law, in 1996, he was required to undergo a background screening. That screening uncovered his 1989 offense, and on July 14, 1997, he was disqualified from working in a position of special trust with developmentally disabled adults. Petitioner was then offered a temporary assignment effective July 24, 1997, without any "direct care duties." Most recently, however, he has been employed at a Wal-Mart store in Tallahassee, Florida. Because of his desire to return to his former position, he has applied for an exemption from disqualification. Since the disqualifying incident in 1989, Petitioner worked continuously at FSH for almost eight years. Since leaving FSH, he has been steadily employed by Wal-Mart. Petitioner was described by a former supervisor at FSH as being "dependable," "very good" with residents, and someone who got along well with other staff. Three former co-workers echoed these comments. A present co-worker at Wal-Mart also described Petitioner as friendly, helpful, and courteous with customers. Except for the fact that a former wife was the victim, the circumstances surrounding the incident for which the exemption is sought are not of record, and the "harm [if any] caused to the victim" is unknown. Despite the glowing comments of other workers, the adverse testimony of a former supervisor at FSH must be taken into account. In December 1995, she found Petitioner engaged in a verbal confrontation with another worker. She then directed that Petitioner report to her office. On the way to the office, he told her that the other employee was "going to make [Petitioner] put a board on his ass." At the ensuing meeting, Petitioner became extremely upset and told the supervisor that he wished she were dead, that she would get killed in a traffic accident on the way home, and that he would "spit on her grave." Petitioner subsequently received a written reprimand for using "Threatening and/or Abusive Language" towards his supervisor. In another incident that occurred on May 22, 1997, Petitioner was observed by the supervisor "horseplaying with another employee" in the dining room. When told by the supervisor that such conduct was inappropriate for the workplace, Petitioner stated in a loud, hostile manner, in the presence of both co-workers and clients, that he "would choke the motherfucker out." For this conduct, he received another written reprimand for "Threatening and/or Abusive Language," and he was suspended from work for three days. According to the same supervisor, Petitioner has an "explosive" temper, and she would not want him returning to her unit. Given this testimony, it is found that Petitioner has failed to demonstrate by clear and convincing evidence that he will not present a danger if continued employment is allowed. Besides the disqualifying offense, Petitioner has a long string of misdemeanor convictions beginning in 1979 and continuing through 1992. The specific crimes are described in Respondent's Exhibits 1-7 and 9-31 received in evidence. Petitioner himself acknowledged that he has been convicted of passing worthless bank checks approximately thirty times. Most recently, he was convicted for the offense of disorderly conduct in November 1992. In addition, he was convicted for the offense of simple battery on a former wife in October 1990. These convictions, by themselves, are not disqualifying offenses, and many are so old as to be arguably remote and irrelevant. They do, however, establish a continuing pattern of misconduct, especially since Petitioner has at least eight convictions for various misdemeanors since the disqualifying offense in 1989. Given these circumstances, it is found that Petitioner has failed to demonstrate sufficient evidence of rehabilitation since the disqualifying event. This being so, his request for an exemption should be denied.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Children and Family Services enter a final order denying Petitioner's request for an exemption from disqualification for employment in a position of special trust. DONE AND ENTERED this 3rd day of March, 1998, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 1998. COPIES FURNISHED: Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Pete Peterson, Esquire Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Ben R. Patterson, Esquire Post Office Box 4289 Tallahassee, Florida 32315-4289 John R. Perry, Esquire Department of Children and Family Services 2639 North Monroe Street, Suite 252A Tallahassee, Florida 32399-2949
The Issue Whether the Division of Administrative Hearings has jurisdiction to conduct a formal hearing under the provisions of Sections 120.569 and 120.57(1), Florida Statutes, if the Petition for Relief was not timely filed pursuant to Section 760.11(7), Florida Statutes. Whether the Division of Administrative Hearings has jurisdiction to conduct a formal hearing under the provisions of Sections 120.569 and 120.57(1), Florida Statutes, if the Florida Commission on Human Relations fails to send a copy of the Charge of Discrimination to Respondent within five days of the complaint being filed, as required by Section 760.11(1), Florida Statutes.
Recommendation Based on the foregoing facts and conclusions of law, it is RECOMMENDED that a final order be entered dismissing with prejudice the Petition of Manuel Pedraza in DOAH Case No. 02-0238, and FCHR Case No. 99-1636, for failure to timely file his Petition for Relief. DONE AND ENTERED this 21st day of June, 2002, in Tallahassee, Leon County, Florida. ___________________________________ DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of June, 2002. COPIES FURNISHED: Susan K. W. Erlenbach, Esquire Erlenbach Law Offices, P.A. 2532 Garden Street Titusville, Florida 32796 Toby Lev, Esquire Egan, Lev, & Siwica, P.A. Post Office Box 2231 Orlando, Florida 32802 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether or not Petitioner may be presumed, pursuant to Rules 22A- 7.0l0(2)(a) and 22A-8.002(5)(a)3 F.A.C. to have abandoned her position and resigned from the State of Florida Career Service System.
Findings Of Fact Petitioner started working for Florida State Hospital, a residential facility owned and operated by HRS, on August 8, 1986. On June 22, 1987, Petitioner was assigned to Unit 14, at Florida State Hospital, a unit which treated geriatric mentally ill patients. In that assignment, Petitioner's immediate supervisor was Senior Registered Nurse Supervisor Shirley Greggly. It is an established policy at the HRS facility in question for employees who will be absent to notify their supervisors as soon as possible when they know they will be absent. During her employment, Petitioner had received printed copies of this general policy and of the State rules governing the presumption of abandonment of position in cases where an employee is on unexcused leave for three consecutive workdays. During her employment, Petitioner had been a less-than-exemplary employee with regard to absenteeism, tardiness and timely notification and had been counselled prior to April 1989 that she should make contact with the Hospital within seven minutes of the time she was due on shift if an absence was necessary. Only after review of such contact initiated by an employee can a superior determine to approve or disapprove the requested leave. If no contact were initiated by the employee, it was Ms. Greggly's standard procedure to attempt to initiate contact herself with the missing employee. Failure of an employee to notify Ms. Greggly or delayed notification of Ms. Greggly by an employee creates great hardship for the patients who may receive delayed care as a result, and also it creates considerable administrative turmoil for Ms. Greggly in rounding up a substitute employee. Petitioner had been disciplined with a ten-day suspension in September 1988 for failure to notify. She had received a prior written reprimand for absence without authorized leave in June 1988 and an oral reprimand for excessive absenteeism in December 1987. Petitioner had been frequently counselled in regard to these shortcomings. During the first few months of 1989, Petitioner was absent from work due to a work-related injury and, if not already filed, a workers' compensation claim pursuant to Chapter 440 F.S. was at least imminent. Petitioner's primary treating physician was Daniel Bontrager, D.C. By April 1989, Dr. Bontrager had determined that Petitioner could return to light duty work. On April 7, 1989 and again on April 13, 1989, Dr. Bontrager orally informed Petitioner that she could return to light duty work as of April 17, 1989. On April 13, 1989, Ms. Hobbs stated that she would not return to work. Dr. Bontrager communicated his advice to the Hospital. The best diagnostic evidence obtainable by Dr. Bontrager indicated that there was no valid medical reason why Petitioner could not return to work. Ms. Greggly expected Petitioner back at work on April 17, 1989. From that date until April 28, 1989, when Petitioner was deemed to have abandoned her position, Petitioner initiated no contact with her employer or Ms. Greggly, and therefore no leave was authorized for her. On the dates between April 17, 1989 and April 28, 1989, inclusive, Petitioner neither appeared at work nor informed the hospital that she was going to be absent. This period constitutes in excess of three consecutive workdays of absence without approved leave.
Recommendation Upon the foregoing Findings and Fact and Conclusions of Law, it is recommended that the Department of Administration enter a Final Order ratifying its previous presumption that Petitioner has abandoned her position and resigned from the Career Service. DONE and ENTERED this 4th day of January, 1990, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of January, 1990. APPENDIX TO RECOMMENDED ORDER The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF: None filed. Respondent' PFOF: 1-3, 8, 10, 12-14 Accepted. 4-5 Immaterial. 6-7, 9 Accepted as modified; unnecessary argument and detail is rejected as such. 11 Modified to reflect the record; rejected where it is not true to the record. COPIES FURNISHED: Larry D. Scott, Esquire Department of Administration Office of the General Counsel 435 Carlton Building Tallahassee, Florida 32399-1550 Ms. Clara Hobbs Route l, Box 186B Sneads, Florida 32460 John R. Perry, Esquire Department of Health and Rehabilitative Services Suite 200-A 2639 North Monroe Street Tallahassee, Florida 32303-4082 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Aletta L. Shutes, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr. General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
Findings Of Fact The Petitioner, Florida Hospital, is a tertiary care hospital located in Orange County, Florida, and consisting of three different campuses, with a total of 1,075 licensed beds. It is the second busiest and biggest hospital in Florida. T2. 9,20. Florida Hospital submitted its original FY 1984 budget to the Hospital Cost Containment Board (HCCB) on October 31, 1983. Petitioner's Exhibit 5. The FY 1984 budget was revised at least once through informal negotiation with HCCB staff before it was considered by the HCCB, and these revisions were accepted by the staff of the HCCB. T1. 54, 104. These changes were not placed in evidence. The HCCB reviewed Petitioner's FY 1984 budget at its meeting on April 19, 1984. T1. 54; Petitioner's Exhibit 4. The budget was accepted and not selected for public hearing, and the HCCB found that Petitioner's hospital had one of the top three highest case mixes in the state. Petitioner's Exhibit 4. Petitioner's 1984 fiscal year ran from January 1, 1984 to December 31, 1984. T1. 52. Although the budget was not considered by the HCCB until April, 1984, the budget was effective for all of fiscal year 1984. T1. 54. By letter dated October 11, 1984, but received October 15, 1984, Florida Hospital submitted an amended FY 1984 budget to the Hospital Cost Containment Board. T1. 54; T2. 51; Petitioner's Exhibit 6. The amendment thus was submitted 289 days after the beginning of Petitioner's 1984 fiscal year, using the date of receipt as the date of submission, and 77 days from the end of the fiscal year. By letter dated February 11, 1985, the HCCB staff notified Florida Hospital that its amended 1984 budget would not be accepted because it was received less than 90 days before the end of Florida Hospital's 1984 fiscal year. T1. 54-55; Petitioner's Exhibit 2. Florida Hospital is not aware of any analysis made by the staff of the HCCB with respect to the merits of the proposed amendment. T1. 56. In the fall of 1984, the HCCB applied the 90 day policy to all hospitals which submitted proposed budget amendments. T1. 7, 13. The policy was initiated in late summer or early fall, 1984. T1. 6,7. The HCCB did not provide the Petitioner with any other reason for the proposed denial of its amendment. T1. 23. The HCCB has now abandoned its policy of refusing to accept budget amendments within the last 90 days of the fiscal year, and that issue is not present in this case because the HCCB does not rely upon it to deny the amendment proposed by the Petitioner. T1. 11, 27. Effective May 18, 1984, the Legislature substantially amended the Health Care Cost Containment Act of 1979, section 395.501, et seq., Fla. Stat. Chapter 84-35, Laws of Florida (1984). Historically, there was no practice or policy of the HCCB or its staff to either encourage or discourage amendment of budgets after submission to the HCCB, and although such amendments were not required by law, amendments were routinely allowed. T1. Under prior law, the HCCB had no regulatory authority over hospital budgets, and could not require a hospital to revise its budget or to abide by its budget. T1. 40. The HCCB only had the power to subject the hospital to a public hearing. Id. It often occurred that hospitals would revise a budget under the former law, after preliminary staff analysis and recommendation, and it is inferred that often such amendments were prompted by the possibility that the unrevised budget would trigger a public hearing. T1. 39. In fiscal year 1984, ninety-nine hospitals submitted amendments or other changes to their budgets after initial budget Submission to the HCCB. Petitioner's Exhibit 1. Sixty-five of those amendments were accepted by the staff of the HCCB or the HCCB and became a part of the hospital's 1984 budget. Id. At least fifteen or twenty of the attempts to amend the FY 1984 budget set forth above were filed after the particular fiscal year had already begun. T1. 70. The majority of these fifteen or twenty were changes or amendments submitted prior to the time that the particular budget was submitted to the board of the HCCB. Id. In most eases, these fifteen or twenty amendments were accepted by the HCCB. T1. 71. Thus, it was common for the HCCB to accept amendments to the FY 1984 budget after the beginning of that fiscal year. There is no evidence, however, that any of these amendments accepted by the HCCB had the effect, under the amended 1984 law, of reducing the variance between a 1984 budget as originally filed and 1984 audited actual experience to diminish or entirely avoid the base year adjustment required by section 395.509(11), Fla. Stat. (1985). On March 6, 1984, Kissimmee Memorial Hospital submitted an amendment to its FY 1984 budget after the beginning of that fiscal year. Its fiscal year was calendar year 1984. This amendment was accepted by the HCCB in April, 1984, and was effective retroactively and prospectively, for the entire fiscal year. T1. 71-77; Petitioner's exhibit 7, worksheets C-3, C-4 and X-4. Of the fifty FY 1984 files reviewed at the HCCB by Scott Miller, witness for the Petitioner, one contained an amendment to a budget which was accepted by the HCCB after the HCCB had approved the budget. T1. 77. That hospital was Central Florida Regional Hospital. Id. The fiscal year for Central Florida Regional Hospital was calendar year 1984. T1. 79. The HCCB accepted the budget during their June, 1984, meeting. T1. 79; Petitioner's Exhibit 8. Subsequently, by letter dated September 21, 1984, Central Florida Regional Hospital submitted a proposed amendment to its FY 1984 budget. T1. 79-80. The proposed amendment was received by the HCCB on September 24, 1984, and sought an amendment due to receipt of favorable prior year Medicare settlements. Petitioner's Exhibit 8, letter of September 21, 1984, and worksheets C-2 and X-4; T1. 81. This was 22 days before the HCCB received the amendment proposed by the Petitioner in this case, and was more than 90 days from the end of the 1984 fiscal year. Apparently the amendment proposed by Central Florida Regional Hospital was subjected to the same 90 day amendment policy as Petitioner's amendment, but since the amendment of Central Florida Regional Hospital was submitted with more than 90 days left in the fiscal year, the amendment was not precluded by application of that policy. T1. 7, 13. The amendment proposed by Central Florida Regional Hospital related to past and future periods, and was proposed to be effective for the entire fiscal year. T1. 136, 81. The amendment was concerned solely with actual experience, the receipt of a Medicare settlement, which was a single unusual revenue event. The HCCB accepted the amendment, T2. 69, and the amendment became effective for the entire 1984 fiscal year. T1. 80-81; T2.69. (Specifically, staff of the HCCB accepted the amendments, the amendments were entered into the HCCB computer, this was deemed to be acceptance by the HCCB itself, and the amendments were averaged on the computer for the entire 12 month period. T2. 67, 69-70.) The effect of the amendment was to increase net revenue per adjusted admission by about $180, and this increase was too small to have any impact upon the issue of whether Central Florida Regional Hospital would be subject to a base year adjustment pursuant to section 395.509(11), Fla. Stat. (1984). T1. 61-62. The policy described in finding of fact 8 above was never promulgated by the HCCB as a rule. T1. 9, 12. No general written notice was given to hospitals potentially affected by the policy. T1. 13. The first notice given to hospitals of the existence of the policy was when staff of the HCCB notified a particular hospital in response to proposed fiscal year 1984 budget amendments. Id. Florida Hospital first learned of the existence of the policy when its attempted budget amendment was rejected by the HCCB staff on February 11, 1985. T1. 54-55. The amendment proposed by the Petitioner to its FY 1984 budget included a reduction of about 21,000 patient days, and a reduction of about 1900 admissions from the original budget. T1. Additionally, the amendment sought to increase revenue amounts which resulted primarily from a change in case mix. Id. Finally, there were increases in expenses for malpractice insurance and data processing software. Id. Revenues respond quite directly to increases or decreases in case mix. T1. 68. Case mix is a mathematical expression of the intensity of services provided to the patient, T2. 16, which correlates to the degree of illness of the patient. Id. The average case mix is 1.0. T2. 17. In the summer and early fall of 1983, when the Petitioner prepared its original budget for 1984, case mix standards did not exist, T1. 61, and the 1984 budget was not based upon a case mix. Id. Case mix data for fiscal years 1982 and 1983 became available in January, 1984. T1. 135. Florida Hospital's case mix, and its revenues, increased in fiscal year 1984 primarily due to the introduction of the Medicare prospective payment system on October 1, 1983. T1. 59, 65, 96. Additionally, in the market served by Florida hospital there was increased activity from health maintenance organizations and preferred provider organizations. T1. 59. The Medicare prospective payment system was a major change in the reimbursement system. T1. 119. These changes in the health care market caused Florida Hospital to experience a decrease in length of stay and an increase in the intensity of services rendered to sicker patients. This occurred because the new Medicare System, as well as HMO's and PPO's, were intended to reduce hospital stays and treat less sick patients outside the hospital. T1. 59. The budget of Florida Hospital was initially prepared and submitted in October, 1983, with virtually no actual experience under the new Medicare prospective payment system. T1. 95-96. See also findings of fact 2 and 19, supra. Florida Hospital hired two consultants to assist it in trying to predict the impact of the new Medicare program. T1. 95. Florida Hospital receives many of its patients on referral from other hospitals which cannot provide services to such patients. T2. 18, 33-34. Thus, Florida Hospital is relied upon by the surrounding area to treat sicker patients. T2. 25. It is hard to predict trends in such referrals, and consequently, it is difficult to predict the impact of other market changes, such as the Medicare changes and the success of health maintenance organizations described above, since Florida Hospital must rely on referrals. Health maintenance organizations in the first year of operation in the surrounding community were able to substantially reduce days of care, and this success was not predictable by Florida Hospital when it formulated its FY 1984 budget. T2. 14- Additionally, the Orlando area in the last two years has experienced significant unpredictable increases in population, which added to the foreseeability problems of Florida Hospital. T2. 18-20. Over the several years preceding fiscal year 1984, Florida Hospital experienced a trend of increasing open heart surgical procedures. T1. 60. In 1984, Florida Hospital originally budgeted for a significant increase over 1983, to its maximum capacity using a 5 day week. Id. But the demand continued, and in 1984, Florida Hospital began doing open heart surgery on weekends. T1. 61. This decision, coupled with a decrease in length of stay per surgery, resulted in an increase in open heart surgeries greater than originally predicted in the 1984 budget. Id; T1. 110-111. Florida Hospital might have anticipated using weekends when it prepared its 1984 budget, but did not do so because weekend work is not a normal practice. T1. 112. In the fall of 1983, the national trend for open heart surgery was showing a decrease in such procedures. T1. 135-36. Additionally, Florida Hospital experienced a shift of less complicated surgeries, such as cataract surgeries, from inpatient to outpatient procedures, resulting in an overall increase in intensity of the remaining surgical procedures. T1. 62-63. The Hospital has no control over this choice, since it is made by physician and patient and is affected by reimbursement policies of insurance and governmental programs. Id. Florida Hospital monitors its budget on a monthly basis, but does not have specific criteria for evaluating the meaning of trends. T1. 86-87. A change of 5 percent would cause concern to Florida Hospital but other circumstances would be evaluated. T1. 87. In the first two months of the first quarter of FY 1984, Florida Hospital experienced a slight increase of admissions over budget estimates. T1. 85-88. In a letter to the HCCB dated March 23, 1984, Florida Hospital noted that the intensity of its case mix for Medicare patients had increased about 50 percent since 1979, and that the length of stay had dropped 0.2 days from 1983 to 1984. Intervenor's Exhibit I. At the time the letter was prepared, the Hospital had no way of knowing if the non-Medicare case mix was the same. T1. 109. The data further showed a trend away from psychiatric patient days, which produce less revenue per day, toward more intense forms of care, which produce more revenue per day. Id. The letter was sent to provide information requested by staff of the HCCB, and to explain changes to the budget as originally submitted. Id.; T1. 104. While March and April of 1984 showed some signs of a change from predictions in the budget, it was not until June, 1984, that Florida Hospital experienced a significant decline in patient days. T1. 97-98. Even then, it was determined that the June, 1984, experience was not a good trend indicator, but was an anomaly. Id. This was shown to be the case when June, 1984, was compared to June, 1985. Id. Moreover, these were only gross trends in patient days and admissions, and were not specific for case mix. T1. 99. In fact, Florida Hospital finished the fiscal year at about the gross revenue level it had predicted in its 1984 budget; the problem was an increase in intensity of case mix, with lower patient days generating higher revenue per adjusted admission. Id. In June, 1984, Florida Hospital received a Medicare settlement for two or three prior years. The settlement was $10 million, and the timing of the receipt of such settlements was not within the control of Florida Hospital. T1. 63, 93. Significant variances were first noticed by Florida Hospital in revenue per adjusted admission in July, 1984. T1. The variances were cumulative from April, 1984. T1. 100. The vice president for finance at Florida Hospital, Scott Miller, was first aware of the amendments to the Hospital Cost Containment law, chapter 84-35, Laws of Florida (1984), establishing a base year adjustment for fiscal year 1984 based upon actual experience in 1984, in June, 1984. T1. 100. Section 395.509(11), Fla. Stat. (1984), requires comparison of the 1984 budget for net revenues per adjusted admission filed with the HCCB with the audited actual experience of each hospital for such revenues. The bulk of the work in preparation of the proposed amendment to its FY 1984 budget, Petitioner's Exhibit 6, was done in August, 1984, based upon data to June 30, 1984. T1. 92, 83. One of the reasons for submitting the amended budget was to diminish the base year adjustment described in finding of fact 30 above. T1. 100. Since the potential loss to Florida Hospital is over $10,000,000, it is likely that this was a major cause for the amendment. Additionally, the proposed amendment was submitted to more honestly reflect changes in the predicted budget. T1. 102. From a purely fiscal point of view, without consideration of regulatory consequences, there is an incentive to underestimate revenues and overestimate expenses. T2. 26-27. During the preparation of the proposed budget amendment, Florida Hospital did not consult the Florida Hospital Reporting System Manual, and did not talk with any employee of the HCCB for advice with respect to the proposed amendments. T1. 130. The proposed budget amendment submitted in October, 1984, dealt with the entire fiscal year 1984, and did not distinguish between portions of the year which already had been completed and the remainder of the fiscal year. T1. 131-132. As set forth in finding of fact 16, the basis of the proposed amendment was actual experience in fiscal year 1984, T1. 139-140, and contained revenues actually received that were substantially greater than originally predicated. With respect to future periods, the budget was a projection. Due to seasonal variances, unpredictable receipt of lump sum payments, and variations in changes in admissions for various types of cases, it is not practicable to prorate the budget of Florida Hospital, as proposed to be amended, in daily, monthly, or quarterly segments, T1. 133, and the proposed amended budget does not contain a method for such proration. A budget can be defined as a projection for a future time of expenditure and revenue, and it reflects anticipated goals. T1. 127, 131. There is no evidence in the record to suggest that Florida Hospital has ever attempted to avoid a public hearing by underestimating revenue, and there is no evidence in the record to suggest that Florida Hospital's original FY 1984 budget contained intentional underestimations of revenue or intentional overestimations of reductions from gross revenue. As found in findings of fact 18 through 31, Florida Hospital's original FY 1984 budget was based upon the best information then available. It took six months to prepare, T. 127, and was reasonable at the time submitted. Florida Hospital submitted amendments to its budgets in FY 1982 and 1983. Petitioner's Exhibit 1. In years prior to 1984, Florida Hospital had submitted amendments to budgets after the beginning of its fiscal year. T1. 134. Florida Hospital has claimed in previous years that it offers services not offered by other hospitals in its group. T2. 72-73. Through discussions with the staff of the HCCB, it was agreed between Florida Hospital and the staff of the HCCB that Florida Hospital could delete from its FY 1984 budget revenues and expenses associated with kidney transplant, employee housing, pathologist laboratory fees, sales of gasoline to employees, and a laundry. T2. 73-74. See Petitioner's Exhibit 10, attachment 2 and 3. The effect of deletion of these items from the FY 1984 budget was to delete a predicted $3,231,000 in revenue. Petitioner's Exhibit 10, attachment 1. When Florida Hospital filed its audited actual experience for 1984, the HCCB had a new staff analyst assigned to review the budget of Florida Hospital, and the new analyst concluded that the items described in finding of fact 40 should be included in the actual report initially, Petitioner's Exhibit 10, attachment 4, but that these items would be "pulled back out" for purposes of analysis later. T2. 75. However, Respondent's Exhibit 1 did not implement this agreement. Instead, the items described above were deleted from the FY 1984 budget but were included in the FY 1984 actual experience figures on this exhibit. Id. The total amount of revenue actually received for these items in FY 1984, which should be deleted from the FY 1984 actual experience of Florida Hospital pursuant to the understanding with staff of the HCCB, is $4,074,415. If this amount is not deleted, Florida Hospital's base year adjustment pursuant to section 395.509(11), Fla. Stat. is larger by nearly $3 million. T2. 76. Respondent's Exhibit 1 computes the FY 1984 net revenue per adjusted admission for Florida Hospital for the following: FY 1984 original budget; FY 1984 budget as proposed to be amended; FY 1984 budget if the proposed amendment is allowed for only the last 77 days of the fiscal year; and the 1984 actual experience. T2. 51-53. As discussed in finding of fact 41, the figure for 1984 actual experience does not delete the items discussed in that finding. Respondent's Exhibit 2 computes the adjustment to base year if the proposed amendment is not accepted, and if the items described above in findings of fact 40 and 41 are not deleted from actual experience. T2. 56-58. The amount of this adjustment would be $13,771,310 which is $344.52 per adjusted admission for FY 1986. Respondent's Exhibit 2. Respondent's Exhibit 3 computes the adjustment to base year if the proposed amendment is accepted for the 77 days remaining in the fiscal year, and if the items described above in findings of fact 40 and 41 are not deleted from actual experience. T2. 59-60. The amount of this adjustment would be $10,476,400, which is $262.09 per adjusted admission for FY 1986. Respondent's Exhibit 3. If the proposed amendment is not accepted, but the items described in findings of fact 40 and 41 are deleted from actual experience, the adjustment to base year would be $10,871,303, which is $271.97 per adjusted admission for FY 1986. Petitioner's Exhibit 9. If the proposed amendment is accepted for the 77 days remaining in the fiscal year, and if the items described in findings of fact 40 and 41 are deleted from actual experience, the adjustment to base year would be $7,760,747, which is $190.15 per adjusted admission for FY 1986. Petitioner's Exhibit 9. If the proposed amendment is accepted by the HCCB to be effective for the entire FY 1984, the budgeted net revenue per adjusted admission for Florida Hospital is $4,008.70. Respondent's Exhibit 1. Assuming that the deductions from actual experience in 1984 are not made (see findings of fact 40 and 41), the net revenue per adjusted admission actually experienced by Florida Hospital in 1984 was $4,346.66. Id. Since the difference between these two figures is less than 10 percent above the budgeted amount, $4,008.70, the base year of Florida Hospital would not be adjusted pursuant to section 395.509(11), Fla. Stat., if the proposed amendment were accepted for the entire fiscal year. This result would occur even though the deductions from revenue described above are not made.
Recommendation It is therefore recommended that the Hospital Cost Containment Board enter its Final Order approving the proposed amendment to the FY 1984 budget of Florida Hospital only for the last 77 days, and, as a result, calculating the adjustment pursuant to section 395.509(11), Fla. Stat. (1985), in the following amounts: subtraction of a total of $7,760,747 net revenues from FY 1986 budget, which is subtraction of $190.15 net revenues per adjusted admission for the FY 1986 budget. DONE and ENTERED this 7th day of February, 1986, in Tallahassee, Florida WILLIAM C. SHERRILL, JR. 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 7th day of February, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 85-0747H Rulings upon Proposed Findings of Fact. Pursuant to section 120.59(2), Fla. Stat., the following are specific rulings upon all proposed findings of fact submitted by the parties. The numbers herein correspond to the numbers of each proposed finding by party. Findings of fact in this recommended order are indicated by the abbreviation "FF". Findings of Fact Proposed by the PETITIONER, Florida Hospital. Adopted, FF 1. Adopted, FF 2. law. law. Adopted, FF 3. Adopted, FF 4. Adopted, FF 6. Adopted, FF 7. Adopted, FF 8. Adopted, FF 9. Rejected because the proposed finding is a question of Rejected because the proposed finding is a question of Adopted, FF 10. Adopted, FF 11. Adopted, FF 12. Rejected because of insufficiency of evidence that this categorical, all inclusive finding of fact can be mode. There is a marked distinction between amendments submitted by Hospitals before acceptance of the budget by the HCCB, and amendments submitted after the budget has been accepted by the HCCB. See FF 10, 11, 12, 13, and 14. Further, of the ninety-nine instances of amendment, the Petitioner presented only one occasion when an amendment was accepted after the budget had been approved by the HCCB and was accepted for the entire fiscal year, some of which had already been executed. See FF 14. Through 19. Adopted, FF 13. 20. Through 28. Adopted, FF 14. Adopted, FF 8 and 14. Adopted, FF 15. Adopted, FF 8. Adopted, FF 15. Adopted, FF 15. Adopted to the extent found in FF 11 end 12, and the remainder rejected for lack of evidence. Adopted, FF 8. Rejected because irrelevant since the basis for the 90 day incipient policy is not at issue because the policy is not at issue. Adopted, FF 7 and 8. Adopted, FF 8. Adopted, FF 15. Adopted, FF 8. True, but irrelevant and therefore rejected. Rejected because not supported by the evidence. As found in FF 17 through 31, Florida Hospital was aware of the amended law, effective May 18, 1984, that subjected hospitals to a potential base year adjustment resulting from FY 1984 budget data, but as also found in those findings, Florida Hospital could not prepare its proposed amendment any sooner due to lack of data. The delay in filing the amendment, on this record, occurred due to lack of data, not lack of notice concerning the 90 day policy. Adopted, FF 39. Adopted in part, FF 39. However, the purpose of prior year amendments cannot be a portion of this finding of fact because there is insufficient evidence. Without evidence as to the nature of such prior year amendments, and given the reverse incentive in those years to understate revenues to avoid public hearing, it cannot be concluded that the motives for such amendments were to "present a fair document to the HCCB." Adopted, FF 8. and 48. Adopted, FF 16. and 49. through 51. Adopted, FF 17. 52. and 53. Adopted, FF 18. 54. and 55. Adopted, FF 19. 56. and 57. Adopted, FF 20. 58. and 59. Adopted, FF 21. 60. and 61. Adopted, FF 22. Adopted, FF 21. Rejected. It is unclear from the evidence whether volume of patient days and admissions "magnifies" the impact of changes in market conditions. It could be statistically true that a greater volume produces more reliable predictions due to a larger base pool of data, which averages out small anomalies in data. Adopted, FF 19. through 69. Adopted, FF 23. 70. and 71. Adopted, FF 24. Adopted, FF 38. Adopted, FF 29. Adopted, FF 31. Adopted, FF 28. and 77. Adopted to the extent modified in FF 38. To the extent not adopted in the modified language, it is rejected for lack of evidence. Adopted, FF 33. Since there were no other definitions given in the record, adoption of this finding as proposed would be misleading. T1. 127-128. Thus, it is rejected as phrased. Adopted, FF 37, except this is the same definition, not "another" definition. Rejected as phrased. There is not evidence in the record that the budget which is the subject of testimony at T1. 129 was prepared or used in any manner with respect to past time in the budget year. Adopted in the introduction, but not, strictly speaking, a finding of fact. Adopted, FF 42. and 86. Adopted, FF 43. and 87. Adopted, FF 44. 88. and 89. Adopted, FF 14. Adopted to the extent relevant in the introduction. Adopted, FF 40. Rejected as unnecessary and cumulative to FF 40. Adopted, FF 40. through 96. Adopted, FF 41. Adopted, FF 45. Adopted, FF 46. Findings of Fact Proposed by the RESPONDENT, HCCB. The first sentence is adopted, FF 9. The next two sentences are rejected as issues of law, not fact. The next sentence is adopted, FF 7 and 9. The last sentence, also a matter of law, is rejected because not fact. Adopted only to the extent in FF 8, and remainder is rejected as unnecessary and irrelevant since the policy is not used by the HCCB to deny amendment in this ease. Adopted, FF 5 and 7. Adopted, FF 8, except the last sentence, which is not relevant as discussed above. The first two sentences are adopted as modified in FF The next sentence is adopted in FF 16. The next sentence is adopted as modified in FF 26. The last sentence is adopted as modified in FF 27 and 29. The first sentence is adopted in FF 16, the second sentence is adopted in FF 19, the last two sentences are adopted in FF 23. The first sentence is adopted in FF 3. The last sentence is true, T2. 51, but not relevant. Adopted, FF 32 and 34. Adopted, FF 35. Adopted, FF 40. The first sentence is rejected for the reasons stated in FF 40 and 41. The second sentence is rejected as an issue of law, and also rejected because irrelevant: there does not appear to be any statute allowing or prohibiting the HCCB to "disregard" any portion of a budget. But as found in FF 10, there is apparently some discretion afforded the HCCB, discretion that is exercised frequently. Adopted, FF 14 and 8. Findings of Fact Proposed by the INTERVENOR, The Public Counsel. Adopted, FF 1. Adopted, FF 9. Adopted, FF 2. Adopted, FF 2, 3, and 4. Adopted as modified in FF 16. and 7. Adopted as modified in FF 16, but there is not enough evidence to show a "trend." Adopted, FF 3 and 4. Adopted, FF 7. Adopted, FF 16. Adopted, FF 31. Adopted, FF 19. Adopted, as modified in FF 27 and 29. Adopted, FF 30. Adopted, FF 30. Adopted, FF 32. The record contains no evidence that the subject matter of the proposed amendment is incorrect, or false, and thus the motive for such amendment is largely irrelevant. For this reason, this finding is rejected. Adopted, FF 34. Rejected because the record citation does not support the proposed finding. Rejected because misleading. The proposed amendment does not relate to a specific future time, but in fact relates to the remaining days of the fiscal year, since that was all that was left of the budget year when the amendment was filed. Adopted, FF 35. Adopted as modified, FF 35. Adopted as modified, FF 36. Adopted as modified, FF 36. Adopted as modified, FF 35. Adopted, FF 36. Adopted, FF 26 and 36. Adopted as modified, FF 35 and 36. Adopted as modified, FF 35 and 36. Adopted, FF 19 and 20, except the last sentence, which is cumulative and unnecessary. Rejected because irrelevant. Rejected as irrelevant and cumulative to FF 20. Adopted, FF 20. Rejected as irrelevant and cumulative to FF 20. Adopted, FF 19. Rejected as irrelevant. See FF 18 and 20. The record supports only one conclusion regarding the prospective payment system: no one knew what massive changes would occur in the market place prior to actual implementation of that system for a number of months. Awareness that PPS was on the way, without knowing what it would do, is irrelevant. Adopted as modified, FF 30. Rejected as irrelevant. See FF 15 through 31, which conclude that the Petitioner acted in a timely manner to prepare and submit its proposed amendment. Adopted, FF 37. Adopted, FF 38. Adopted, FF 10. Adopted, FF 3 and 10. Adopted, FF 12. Adopted as modified, FF 12. Adopted as modified, FF 12. Further, the point is irrelevant. Rejected because the proposed finding is an issue of law. Rejected because inextricably mixed with the issue of law contained in proposed finding 46. Rejected because inextricably mixed with the issue of law contained in proposed finding 46. COPIES FURNISHED: Curtis Ashley Billingsly, Esquire Hospital Cost Containment Board 325 John Knox Road Building L, Suite 101 Tallahassee, Florida 32303 David Watkins, Esquire Oertel & Hoffman, P.A. 2700 Blairstone Road, Suite C Tallahassee, Florida 32301 Jack Shreve, Public Counsel Office of Public Counsel 202 Blount Street Tallahassee, Florida 32301 T. L. Trimble, Esquire 2400 Bedford Road Orlando, Florida 32803 James Bracher, Executive Director Hospital Cost Containment Board 325 John Knox Road Tallahassee, Florida 32303
The Issue The issue to be resolved in this proceeding concerns whether the Respondent, Florida State Hospital, is an "employer" as statutorily defined at Section 760.02(7), Florida Statutes (2007).
Findings Of Fact Behavioral Health Solutions LLC is a private business entity (BHS). The Petitioner was employed by BHS as a clerk- typist beginning on October 6, 2006, and until February 6, 2007, when she was terminated. BHS and the Department of Children and Family Services/Florida State Hospital entered into a contract on September 16, 2006, whereby BHS was to be responsible for providing staff for various positions for the provision of services to residents of Florida State Hospital. One of those positions was that occupied by the Petitioner, at times pertinent to this proceeding. The contract provided that BHS would be responsible for hiring, transferring, promoting, discipline, and discharge/termination of BHS staff. BHS was also responsible for providing its staff with salaries, benefits, compensation packages and training. BHS has its own organizational structure which was not integrated into that of the Respondent Florida State Hospital's organizational structure. The Respondent Florida State Hospital was charged with supervising BHS's staff and with recommendations where required, for disciplinary action or removal from the work site. BHS had the final authority to reassign, discipline or terminate BHS staff, however, by the terms of the contract. The Petitioner was hired by BHS as of October 6, 2006. The offer of employment which she accepted came from BHS. The Petitioner was told later that she was terminated in February 2007 by Angie Burge, the BHS Human Resources Manager. The Petitioner's date of employment were October 6, 2006, through February 6, 2007. The testimony of Angie Burge and Amy Bryant establishes that BHS employees such as the Petitioner, were trained by BHS. Ms. Bryant established through her testimony, as the Operations and Management Consultant for the Department of Children and Families (Department) that neither the Department nor Florida State Hospital had controlling responsibility over employee relations matters regarding BHS's staff/employees, such as the Petitioner. Although she and Florida State Hospital worked in conjunction with Ms. Burge and BHS on employee training requirements, BHS employees, including the Petitioner, were trained by BHS and its staff. BHS and the Respondent Florida State Hospital had a contract for BHS to provide staff for the forensic unit at Florida State Hospital, where the Petitioner was employed by BHS and the contract included the requirement that BHS operate that unit. At orientation, BHS provided its employees or new hires, including the Petitioner, all polices and procedures of BHS and trained them as to such policies and procedures. Ms. Burge, a BHS staff member, provided that training. BHS had authority to hire employees or to terminate them or discipline them and to make final decisions on the performance of the duties of the staff it hired, including the Petitioner. Florida State Hospital and the Department did not have final authority on such matters but could only recommend to BHS. The salary and benefits plan of BHS was very different from that of Florida State Hospital. It was based upon the parent company's pay and benefits scheme, the parent company being Lakeview Center, Inc. The administrators of Florida State Hospital did not have any decision-making authority in employee regulation, discipline, hiring, and termination decisions. Ms. Burge, the BHS Human Resources Manager, made the decision and informed the Petitioner of her termination. The Petitioner has not presented persuasive evidence that Florida State Hospital had sufficient control over the terms and conditions of the Petitioner's employment, or the employment of other BHS staff members, so that such staff members, including the Petitioner, could be deemed employees of the Respondent.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and the arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief in its entirety due to lack of jurisdiction. DONE AND ENTERED this 5th day of March, 2008, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of March, 2008. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Corrine Hamilton 440 South Cone Street Quincy, Florida 32351 Jacqueline H. Smith, Esquire Department of Children and Family Services Post Office Box 1000 Chattahoochee, Florida 32324-1000
Findings Of Fact Cilla McCray, is a resident of Gadsden County. The parties have stipulated that on December 3, 1977, she was admitted to the Tallahassee Memorial Hospital in an emergency medical condition, and that the treatment performed by the hospital was of an emergency nature. The parties have further stipulated that the Tallahassee Memorial Hospital is a regional referral hospital within the meaning of Section 154.304(4) , Florida Statutes (1977). Cilla McCray was admitted to the Tallahassee Memorial Hospital on December 3, 1977, and was discharged on January 9, 1978. The total bill for her services amounted to $8,753.80. The Hospital submitted a bill to Gadsden County in the amount of $1,521.48 for the services. This latter amount is the maximum allowed to be billed in accordance with the Florida Health Care Responsibility Act. Gadsden County has refused to pay the bill, contending that the patient was not indigent. The patient has not paid the bill. Cilla McCray is married to Lawrence McCray. They have three children but only two of them reside at home. The oldest child is not supported by his parents. During the six months preceding the hospitalization of Cilla McCray her husband had average earnings of $80.00 per week as a logger. Mrs. McCray had earned a total of $732.60 for employment during the six months prior to her hospitalization. The McCray's thus had average monthly earnings during that period in excess of $450.00 per month.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED: That a final order be entered rejecting the bill submitted by the Tallahassee Memorial Hospital for medical services performed for Cilla McCray. RECOMMENDED this 16th day of June, 1978, in Tallahassee, Florida. G. STEVEN PFEIFFER, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: John Shaw Curry, Esquire Post Office Box 706 Quincy, Florida 32351 John D. Buchanan, Jr., Esquire Post Office Drawer 1049 Tallahassee, Florida 32302 Chairman Board of County Commissioners Gadsden County Courthouse Quincy, Florida
Findings Of Fact The Respondent, Barbara Barlow, is a licensed practical nurse holding License No. 41347-1 issued by the Florida State Board of Nursing. During the month of November, 1978, Respondent was employed as a licensed practical nurse at West Florida Hospital, Pensacola, Florida. Prior to November, 1978, Respondent underwent a formal orientation program given by the hospital, which program included medication procedures for West Florida Hospital. Subsequent to that formal orientation program, Respondent received additional orientation with respect to medication procedures from Carrie Miller, an experienced licensed practical nurse working at West Florida Hospital on the same shift as the Respondent. Respondent was additionally counseled by Beverly Everitt, Respondent's head nurse, regarding medication procedures. Respondent's explanation for the errors alleged in Paragraphs 1(c) and 1(d) of the Administrative Complaint was vague and uncorroborated by either live testimony or the patients' medical records, which were received into evidence. Further, Respondent's explanation failed to withstand cross-examination. Respondent was terminated from her position at West Florida Hospital for having committed an excessive number of medication errors.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Board enter its final order finding Respondent, Barbara Barlow, guilty of unprofessional conduct based upon each and every allegation contained in the Administrative Complaint and placing the license of Respondent to practice nursing in the State of Florida on probation for a period of one year with the specific term and condition of said probation being that Respondent, during the period of probation, enroll in and successfully complete a course in the administration of and charting of medications by a nurse. RECOMMENDED this 20th day of May, 1980, in Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Julius Finegold, Esquire 1107 Blackstone Building 223 West Bay Street Jacksonville, Florida 32202 Joseph L. Hammons, Esquire 412 West Gregory Street Pensacola, Florida 32501 Ms. Barbara Barlow Route 2, Box 129 Milton, Florida 32570 Ms. Geraldine B. Johnson, R.N. Supervisor I, Office of Investigations Region II Florida State Board of Nursing 111 East Coastline Drive Jacksonville, Florida 32292 Ms. Nancy Kelley Wittenberg, Secretary Department of Professional Regulation The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301
