Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Since on or about September, 1980, the Petitioner has been a full-time employee of the Florida State University System, and up until the 1987-88 academic year a participant in the state of Florida health insurance program offered through the Florida State University by the Respondent, Department of Administration. During the 1987-88 academic year, the Petitioner was granted an unpaid leave of absence so that he could pursue a teaching assignment in the National Republic of China. Since the 1983-84 academic year, the Petitioner had been a participant in the Capital Health Plan Health Maintenance Organization (HMO) offered in Tallahassee, Florida under the Respondent's insurance program. Since the Petitioner could not avail himself of the benefits of the HMO in which he was enrolled in Tallahassee, Florida during the time he anticipated being in the National Republic of China, at or about the time the Petitioner commenced his unpaid leave of absence, he notified the personnel office at Florida State University that he wished to discontinue his participation in the HMO. During the 1987-88 academic year, the Petitioner did not make payments to continue his coverage during his period of leave of absence in the HMO. Immediately upon his return to employment on or about August 4, 1988, the Petitioner inquired of the personnel office at Florida State University of the steps to be taken to obtain coverage under his previous HMO for the 1988-89 academic year. The Petitioner was given certain forms to complete and return to the Florida State University personnel office. Petitioner completed and returned those forms as instructed but was informed that he could not reenroll since no open period of enrollment was available to him at that time. By letter dated July 8, 1988, Ronald G. Meyer, representing the United Faculty of Florida , FTP-FEA, corresponded with Mr. Carl Ogden, Director, Division of State Employees' Insurance, concerning a group of university faculty members who would not be on campus during the open enrollment period effective June 22, 1988 through July 15, 1988, and the need for a special open enrollment period upon them returning to their respective campus. By letter dated July 19, 1988, Mr. Ogden responded to Mr. Meyer's letter of July 8, 1988 and informed Mr. Meyer that the employees identified in his letter would be accommodated, and set out the procedure for that to be accomplished. The group of employees referred to in Mr. Meyer's letter and addressed by Mr. Ogden are those employees referred to as being "employed less than year round" and identified in Rule 22K-1.054(7), Florida Administrative Code, but does not include an employee such as Petitioner who was on an authorized leave without pay during this open enrollment period. The employees covered by the memorandum dated August 12, 1988 from Harriette A. Hudson, Manager, Insurance and Benefits, Florida State University, advising the "salaried Faculty Off Summer Payroll" of the special open enrollment period does not include employees such as Petitioner who was on an authorized leave without pay until August 4, 1988. Additionally, there was no evidence that this "open enrollment period " was designated by the Department of Administration or that the Department of Administration had authorized Florida State University to designate this open enrollment period. There was no open enrollment period available to Petitioner during August 1988. The first open enrollment period available to Petitioner after returning to work in August 1988 was in December 1988, at which time he reenrolled and became eligible for benefits on March 1, 1989. Only the Secretary of the Department of Administration has authority to determine an open enrollment period which is accomplished by numbered memorandum.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED that Respondent enter a Final Order denying Petitioner's request for coverage under the state of Florida Health Plan and any costs he may have incurred as a result of not being covered under the state plan. RESPECTFULLY submitted and entered this 29th day of March, 1989, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of March, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-0277 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Specific Rulings on Proposed Findings Submitted by Petitioner 1.-2. Adopted in Findings of Fact 2 & 4, respectively. Immaterial to the conclusion reached herein. Adopted in Finding of Fact 5. 5.-6. Subordinate to facts actually found in the Recommended Order. 7. Adopted in Finding of Fact 10. Specific Rulings on Proposed Findings Submitted by Respondent 1.-6. Adopted in Findings of Fact 1 - 6, respectively. 7.-8. Subordinate to facts actually found in the Recommended Order. 9. Adopted in Finding of Fact 10, but modified. 10.-11. Immaterial to the conclusion reach herein. 12. Rejected as being a conclusion of law rather that a finding of fact. COPIES FURNISHED: Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikins, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Ronald G. Meyer, Esquire MEYER, BROOKS AND COOPER, P. A. P.O. Box 1547 Tallahassee, Florida 32302 William A. Frieder, Esquire Department of Administration 440 Carlton Building Tallahassee, Florida 32399-1550
The Issue The issue is whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Petition for Relief filed by Petitioner in September 1999.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Because of a "gut feeling that something was wrong" when he was not hired, Petitioner, Ausbon Brown, Jr. (Petitioner), an African-American male born on April 25, 1943, filed a complaint alleging that Respondent, Department of Children and Family Services (Department), unlawfully refused to hire him for any one of four positions he applied for on account of his race, gender, and age. The Department denies the allegation and contends that it hired the most qualified employee in each instance. After a preliminary investigation was conducted by the Florida Commission on Human Relations (Commission), which took over twenty months to complete, the Commission issued a Determination: No Cause on August 18, 1999. Although not specifically established at hearing, it can be reasonably inferred from the evidence that Respondent employed at least fifteen employees for each working day in each of twenty or more calendar weeks in the current or preceding year and thus is an employer within the meaning of the law. Petitioner received a Bachelor of Science degree in biology in 1965 from Florida A&M University, a Master of Science degree in wildlife and fisheries science in 1978 from Texas A&M University, and a doctorate in wildlife and fisheries science in 1991 from Texas A&M University. Petitioner's job applications reflect that from June 1965 until April 1994, he worked in various positions for the U. S. Department of Commerce, National Marine Fisheries Service, including as a "survey statistician," "operations research analyst," "chief turtle headstart," "fisheries biologist," "fisheries technician," and "equal opportunity employment counselor." Petitioner then apparently retired from federal service. Beginning on July 28, 1995, and continuing for several years, he was employed as a child support enforcement case analyst with the Florida Department of Revenue (DOR). His current employment is not of record in this case. Although Petitioner says he applied "continuously" for at least fourteen positions with the Department after leaving federal service, only four applications are in issue here. They involve positions 012123, 10081, 60287, and 60288. Position 012123 was a Management Review Specialist in the Department's Tallahassee district office ; position 10081 was an Operations and Management Consultant II at the Northeast Florida State Hospital in Macclenny; position 60287 was an Operations and Management Consultant II in the Department's Daytona Beach district office; and position 60288 was an Operations and Management Consultant II at the Department's central office in Tallahassee. Position 60287 was originally assigned to the Family Safety and Preservation Program in District 12 and required that the applicant have experience in child neglect and foster services. It was first advertised through a Job Opportunity Announcement (JOA) published on December 24, 1996. Because it was a "highly responsible" position that more closely fit within District Administration, the position was later "pulled" from the Family Safety and Preservation Program and transferred to District Administration. On January 8, 1997, Jane Miller (Miller), a black female and at that time a Program Administrator for the Family Safety and Preservation Program, submitted an interoffice memorandum requesting that she be given a 2-step demotion from pay grade 25 to 23, so that she could fill the position. It can be inferred from the evidence that her request for a demotion was due to a legislatively-mandated reorganization in 1997 that eliminated or transferred a number of positions. Because it was in the best interest of the Department, and Miller was fully qualified to assume the position, the Department decided to fill the slot through a demotion rather than from the applicant pool, and Miller's request was granted. After the position was transferred to District Administration, however, she demoted into another position involving day care licensure, rather than 60287. In response to the JOA, Petitioner timely filed his application. On January 14, 1997, he received a letter from the Department which advised that the position was being "filled by an employee who has taken a voluntary demotion with the department to assume this role." Although this ultimately turned out not to be true, when the letter was sent, the Department did in fact intend to fill the position through Miller's demotion, and thus it was an accurate representation at that time. The undersigned rejects the contention that the above letter, without a second letter to applicants explaining what actually occurred later, proves that there was discrimination. As noted above, after the January 14 letter was sent, the position was transferred to District Administration. A short time later, the reorganization of the Department was implemented, and Betsy Lewis (Lewis), a female whose age and race are unknown, filled the slot through a lateral reassignment that became effective on October 27, 1997. Prior to her reassignment, Lewis had held a similar position and was fully qualified. There was no evidence that the Department accepted Miller's demotion, then transferred the position to District Administration, and then laterally reassigned Lewis in order to deny Petitioner employment on account of his age, race, or gender. Position 60288, also an Operations and Management Consultant II, was located at the Department's central office in Tallahassee, Florida. Under current record retention requirements for that office, the Department purges "all records for employment received from individuals seeking employment but [who] were not hired" two years after the application deadline. Because more than two years have gone by since the application deadline, all of the records pertaining to the applicants who sought that position have been purged; therefore, a complete file relating to this position was not available at the final hearing. Position 60288 involved the compilation, analysis, and reporting of substance abuse data for the Department's substance abuse program. After he filed his application, Petitioner was given a telephone interview by Dr. L. E. Stivers, Program Administrator for Policy Integration & Information Systems. Although Petitioner says he had a "congenial interview" with Dr. Stivers, he was not considered because of a lack of proficiency in substance abuse language. Because Petitioner did not believe that knowledge of substance abuse was a prerequisite for a computer-related job in the substance abuse program, he asserted that Dr. Stivers was biased towards him, was "stretching for a reason to eliminate [him]," and used the lack of proficiency in drug abuse language as a pretext for not hiring him. These assertions have been rejected as not being credible. Of the candidates interviewed for the job, only three names were submitted to the Assistant Secretary for Substance Abuse for further consideration. Petitioner was not one of the three. Ultimately, a male (Robert Morrell) whose age and race are unknown, was hired for the job. That individual had direct experience in performing substance abuse data collection in the same department where the position was located, and he was the most qualified candidate. Position 10081, an Operations and Management Consultant II, was assigned to the Northeast Florida State Hospital in Macclenny, Florida. According to the vacancy announcement, the position's duties included "the support, consultation and guidance of the Unit Treatment and Rehabilitation Directors in the development and implementation of policies and procedures in the multi-discipline treatment and rehabilitation of mentally and physically ill residents in the area of Unit Operations." Thus, the position required that the individual have a working knowledge of the treatment of mental health patients and preferably a background in mental health. Petitioner met the minimum qualifications stated in the job announcement document and, along with seven other candidates, was given an interview. All candidates were asked the same questions. Petitioner contended that none of the questions asked were relevant, and most dealt with the "treatment of patients." This is hardly surprising, however, since the facility treats the mentally ill. A contention that the questions were unfair and were framed so as to exclude all "external" candidates has been rejected. The position was ultimately filled by Mary Jane Hartenstein (Hartenstein), a white female who was younger than Petitioner, and who received the highest score of all the applicants. At the time she was hired, Hartenstein served as a Unit Treatment Rehabilitation Director at the facility and was familiar with the treatment of mental health patients. She was the most qualified applicant because of her prior experience. The final position was 012123, a Management Review Specialist in the Tallahassee district office. The position called for familiarity with "planning, information resource planning, legislative budget requests, performance of needs assessment and knowledge of health and human services." John Girvin (Girvin), a white male whose age was the same as Petitioner, was ultimately selected for the job. Girvin had prior experience as a deputy secretary and assistant division director for the Department of Commerce and also served with the Historical Preservation Society. The evidence supports a finding that he was the most qualified person for the job. Notwithstanding the foregoing, Petitioner pointed out that when he had previously submitted his qualifications to his former employer (DOR) in 1996, he received a letter from DOR indicating that DOR "felt" that he qualified for a number of positions within the agency, including a Management Review Specialist. Therefore, Petitioner contended that this affirmation of qualifications by DOR also qualified him for the same type of position with another state agency, including the Department's position 012123. Assuming this to be true, it merely means that Petitioner met the minimum qualifications for such a position; it does not mean that he was the best qualified person for the job. As noted above, a more qualified individual was selected for the position. Petitioner further contended that nothing in the basic job announcement for position 10081 indicated that skills in "psychosocial" services were needed. That document, however, merely identified the minimum qualifications, and further details concerning the specific job requirements could have been obtained from the hospital's human resources office. Petitioner has also contended that existing employees of an agency have an advantage over "external" candidates since they can more easily obtain direct experience in the desired area as well as information about "vital criteria" for the job. Even if this is true, it does not equate to a discriminatory practice within the meaning of the law. Moreover, the evidence here shows that the most qualified person was hired in each instance. Finally, Petitioner asserts that the Department violated various Department of Management Services rules in the hiring process, such as failing to timely notify him after Wilson did not actually demote into position 60287, and ignoring the generic minimum qualifications which apply to similar positions in all agencies. The latter claim has been rejected, but even if a technical error occurred, such as the Department failing to send a second letter regarding position 60287, such action was harmless and was not taken with discriminatory animus. In summary, there was no credible evidence that the Department "chang[ed] classifications and var[ied] conditions of employment" in an effort to deny Petitioner employment, or that the Department's actions were a pretext for discrimination, as alleged in the Petition for Relief. Further, there is no evidence that the employment decisions were grounded on discriminatory animus in any respect, or that a discriminatory reason motivated the Department in its actions.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing, with prejudice, the Petition for Relief. DONE AND ENTERED this 13th day of April, 2000, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (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 13th day of April, 2000. COPIES FURNISHED: Ausbon Brown, Jr. Post Office Box 289 Daytona Beach, Florida 32636 Kevin E. Hyde, Esquire Natasha A. Garrison, Esquire Foley & Lardner 200 Laura Street Jacksonville, Florida 32202 Daniel T. Medved, Esquire Department of Children and Family Services 210 North Palmetto Avenue, Suite 412 Daytona Beach, Florida 32114-3269 Sharon Moultry, Clerk Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
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 Whether Respondent falsified employment papers by stating no previous arrest, while employed by the School Board was adjudicated guilty of possession of drug paraphernalia, and subsequent to a dismissal made threats against school board personnel.
Findings Of Fact Respondent was employed by the Pinellas County School System on May 17, 1988 as a plant operator at the South Ward Elementary School in Saint Petersburg, Florida. On the date he was employed Respondent signed a document as part of his application entitled Notice to All New and Rehired Employees. That document directed Respondent to list all prior arrests. Respondent wrote "no" on the document and signed it. (Ex 2). Although Respondent denied the signature on Ex 2, is his signature, this document was presented from the personnel file of Respondent and Respondent's contention that someone from the school system forged his signature on this document is not credible. Respondent was arrested in 1983 on charges of kidnapping, aggravated assault and battery, was brought to trial and found not guilty of all three charges. Accordingly, his denial of arrest on Ex 2 is false. In May 1988, shortly after his employment with the School system commenced, Respondent was charged with possession of drug paraphernalia, was tried and found guilty of this offense. During the investigation of the charges brought to light when a background check was done on Respondent as a result of an unrelated matter and the criminal proceedings came to light, Respondent was offered three options: 1) to resign, 2) be terminated, or 3) receive a written reprimand and agree to random drug testing four times during the next year at Respondent's expense. (Ex. 7). Respondent rejected the first and third options and told the personnel officer to "terminate me". On September 14, 1993 Respondent went to the Pinellas County Courthouse and demanded to see the Board of County Commissioners to complain about the actions of the School Board. When told the commissioners were not present, Respondent nevertheless went to the Commission Chambers. When he returned to the receptionist he remarked he guessed he would have to go back to the School Administration Building and shoot the place up. During a telephone conversation with Ted Pafundi, Supervisor of Employee Benefits at the School System, the person who identified himself as Respondent, in an agitated condition told Pafundi that he was coming down to get you all. "I'll blow up the building." When the amended charging letter was sent to Respondent by certified mail it was refused by Respondent and returned to the sender. (Ex. 5).
Recommendation It is recommended that a Final Order be entered confirming the termination of Henry Lee Jackson as an employee of the Pinellas County School Board. DONE AND RECOMMENDED this 5th day of November, 1993, in Tallahassee, Leon County, Florida. K. N. AYERS 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 5th day of November, 1993. COPIES FURNISHED: Keith B. Martin, Esquire Post Office Box 2942 Largo, Florida 34649-2942 Henry Lee Jackson 311 Pennsylvania Avenue Clearwater, Florida 34615 J. Howard Hinesley, Ed.D. Superintendent Pinellas County Schools 301 4th Street Southwest Post Office Box 2942 Largo, Florida 34649-2942 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399-0400
Findings Of Fact Respondent, Mary-Claire Chapman, M.D. (Dr. Chapman) is now, and at all relevant times was licensed as a physician in the State of Florida, having been issued license number ME 0049241. From May 1989 until May 1992, Dr. Chapman was the chief health officer at Charlotte Correctional Institution (CCI), a prison in the Florida correctional system, in Punta Gorda, Florida. Patient A.J. Inmate A.J. arrived at CCI on August 9, 1989, with no apparent medical complaints. From August 1989, until March 1990, he attended sick call or clinic with complaints related primarily to digestive disorders; the treatment given to him during that period is not at issue. A.J.'s first noted complaints of headaches was on March 8, 1990, when he was seen at Doctor's Clinic at CCI by staff physician, Dr. DeCespedes. He was given Motrin. On March 10, A.J. completed an inmate medical request seeking to have his eyes checked as he stated he was getting daily headaches for three weeks. He was seen in sick call on March 12, with complaint of "severe migraine headache" for two weeks. He was given Motrin and was referred to the senior nurse, who saw him on March 13. The nurse noted his complaint of severe pounding headache and stuffy nose and ears "like on an airplane". He was given Dimetapp and Ibuprofen. A.J. appeared at sick call again on March 16 complaining of headaches that affected his vision. He was referred by the nurse to Dr. DeCespedes, who examined him and noted no acute distress, supple neck and 20/20 vision. Dr. DeCespedes gave him Ibuprofen and suggested return in ten days for follow up. On March 18, A.J. completed an inmate request form to medical: Doc I have been having headakes real bad ones, every day for three weeks now. On 3/17/90 I started to have trouble seeing. I can not fockus with both eyes open but can with one open at atime. Can you pleas help me quickely. thank you (Pet. Ex. #1, p. 15) The form is stamped received on March 19, 1990, "Medical, Charlotte Correctional Institution". That same date A.J. sent an "emergency grievance" to the assistant superintendent stating that the pain was very bad, that he was walking into things and stating that he needed medical assistance as soon as possible. Dr. Chapman examined A.J. on March 20; fundoscopy, temperature and neck movements were normal. Dimetapp was given, and a staff optometry appointment was scheduled for April 2. The staff optometrist examined A.J. and found no problems with his retina or vision but ordered glasses to help with the focusing. The optometry note in A.J.'s medical record states that the patient needs to be reevaluated by the M.D. because of the headaches. A.J. saw the nurse in the clinic on April 8 with complaints of continued, unchanged headache. He was given Ibuprofen and an appointment to see the doctor on April 10. Dr. DeCespedes' notes of examination on April 10 reflect normal findings and an order of an X-ray for sinuses. The X-rays, taken on April 12, reflected sinusitis. Dr. Chapman reviewed the file on April 10 and April 13; she found the work-up for headaches adequate and ordered Keflex for the sinusitis. Dr. Chapman examined A.J. at the clinic on April 17, when he reported feeling bad and unable to go to work. He refused a "lay-in" because he did not want to lose gain time and said, "my boss understands." The examination revealed normal findings. Dr. Chapman added Dimetapp to the Keflex already being taken and advised A.J. to keep his follow-up appointment with Dr. DeCespedes. A.J. appeared at the clinic several time on April 24. In the morning he reported, "I think I'm dying", stated his headache was much worse, held one eyelid half-shut and complained of blurred vision, tinnitis and photophobia. He said his sinuses no longer caused pain. The nurse gave him Ibuprofen and told him he had a doctor's appointment on the next day. The nurse noted he had lost 22 pounds since the end of November and 31 pounds since August. That same day, later in the afternoon A.J. reported to the clinic again, stating that he had gotten up to get a drink of water, blacked out and came to with someone holding him up. He said the Motrin provided no relief from his severe headache. His throat was slightly inflamed with some swelling on the right side. He was referred to the staff physician who observed the patient in distress and hyperventilating. He was given Darvocet; Dr. DeCespedes was consulted; and another sinus X-ray was ordered. On April 26, Dr. DeCespedes admitted A.J. to the infirmary after he had reportedly passed out in his bunk. The sinus X-rays reflected the sinusitis was resolved. From April 26 through April 30, A.J. continued to complain of headaches and loss of vision. A CT scan and bloodwork were ordered. Nursing notes from the infirmary reflect that A.J. was "looking" at TV with no apparent blindness. He was examined on April 30, by Dr. DeCespedes and by the optometrist, who found abnormal fundi (swelling of the optic nerve). The optometrist recommended an opthomologist (MD) consultation as soon as possible. Dr. Chapman examined A.J. at 6 p.m. on May 1. By then he was lethargic, unable to get up without assistance and had difficulty swallowing. Dr. Chapman noted the swelling of the optic nerve and ordered A.J. transferred to the local hospital. Laboratory work on admission showed elevated white blood count which had not been revealed in laboratory findings earlier. Other tests, CT scan and MRI, were initially normal, but brain edema appeared after the third day. Similarly, spinal taps indicated elevated spinal fluid which was clear at first, but, after the fourth hospital day tested positive for streptococcus. The diagnosis after several days was cryptococcal meningoencephalitis. A.J. lapsed into a coma and died at the hospital on May 8, 1990. Patient J. D. J. D., aged fifty-one, entered the Florida Department of Corrections system at the South Florida Reception Center on January 30, 1990. He had a history of peripheral vascular disease (PVD), diabetes and hypertension, and had undergone vascular surgery. In February 1990, under the auspices of the Department of Corrections, J.D. underwent further surgery to repair a prior graft. The patient had a bypass graft performed from the left groin to the right groin using an interposition graft at the left common femoral position, and a 6mm cross-over graft placed from the interposition graft to the right superficial femoral artery. J. D. was transferred to CCI around May 2, 1990. On arrival, he was evaluated by staff physician, Dr. DeCespedes, who noted his history, including the recent surgery. He was given a pass for no prolonged standing, was placed on a low cholesterol diet and was given a lower bunk assignment. Thereafter, J.D. was reevaluated by the staff physician on May 16, 1990; July 10, 1990; October 23, 1990; and February 21, 1991. February 21, 1991, is the first day that a complaint of pain by the inmate was noted. On February 21, 1991, Dr. DeCespedes' clinic notes reflect complaint of pain in J. D.'s legs and a mass in the left inguinal area. Dr. DeCespedes gave J.D. a light duty pass for a few days. On March 5, 1991, J.D. sent this inmate request to Dr. Chapman: Dr.Chapman. I am in the need of help. I have hardening and blood clots in the arteries. I had surgery at So. Fla. Reception in Feb. of last yr. at Larkin Hospital. For the past month I have been experiencing severe pain in my legs. More in the right leg and foot than the left. I saw Dr. DeCespedes last week and told her of the pain and numbness. I also told her that I was having trouble walking to the mess hall and back. She said "you have to walk" and didn't even look at my legs! Dr. I'm really afraid if I don't get some attention soon I may lose my leg. Inmate Logan Ward told me that you are familiar with this type of illness. Would you please call me to see you as soon as possible. I am really scared. My right foot is red and cold and numb most of the time. I have a lot of pain. Thank you. (Pet. #3, p. 169) An inmate request of similar urgency was sent by J.D. to the assistant superintendent the same day. Dr. Chapman responded by setting an appointment for J.D. to see her on March 29. On March 8, J.D. came to clinic reporting a medical emergency. The nurse noted left toes were purplish and cool; the right ankle and foot were cold and dark red and "unable to appreciate peripheral pulses". J.D. complained of pain behind his left knee and severe pain on slight touch to the right leg. He was referred to Dr. DeCespedes, who admitted him to the infirmary for observation. On examination, Dr. DeCespedes noted pulses and no edema. Dr. Chapman examined J.D. in the infirmary on March 13. She could not detect pulses in his lower extremities. She continued current medications and added Trental, a medication to increase blood flow. She ordered a Doppler pulse check and noted that the inmate should sign a medical release for records so that his prior hospital records could be obtained. Dr. Chapman also noted that the inmate should sign a consent sheet for peripheral vascular testing. On March 14, J.D. requested discharge from the infirmary, stating he felt better. He had complained early that morning that he could not sleep in the infirmary. Pulses were present but his lower extremities were cold. Dr. Chapman examined J.D. on March 29 and noted his severe peripheral vascular disease with leg pain. J.D. complained that he had been unable to get to the dining hall and guards were bringing him bagged lunches at times or a wheelchair. Dr. Chapman ordered a quad cane and crutches until the quad cane could be provided. She noted that he should have extra time to get to meals, but should not be given a wheelchair or bagged meals. She noted that she completed a consultation request for peripheral vascular testing by a vascular surgery consultant. For some reason unknown by Dr. Chapman and undisclosed by the record of this proceeding, J.D. was sent to a cardiologist, not a vascular surgeon. He was seen by Robert B. Garrett, M.D. on April 3. That same date, Dr. DeCespedes noted in J.D.'s clinical record that the cardiologist reported severe ischemia in the patient's legs, that J.D. needed special tests and he should be in a wheelchair, but twice daily he should walk 50 to 100 feet to exercise his legs. On April 10, J.D. sent an inmate request to the superintendent complaining about his medical treatment, stating he had pain and trouble walking, that he was given a wheelchair but that it was taken away, even though the specialist had recommended it. Dr. Chapman's response states that J.D. had a quad cane and was to be encouraged to be active. Further, the response states that J.D. had an appointment with her after his next specialist appointment. On April 11, 1991, Dr. Chapman reviewed Dr. Garrett's report and immediately requested a vascular surgery consultation. At some point, J.D. was transferred to administrative confinement, as requested by Dr. Chapman, so that he could have his meals delivered. J.D.'s vascular surgery consultation was scheduled for April 22, but was cancelled by security personnel and was rescheduled for May 9. CCI staff physician, Evidio Tornin, examined J.D. on April 30. He noted "no acute distress", but found a ischemic ulcer, nickel-sized, on J.D.'s right lower leg. He found severe circulatory insufficiency and was unable to detect pulses in J.D.'s extremities. The physician's notes acknowledge that J.D. had a vascular specialist appointment scheduled. Dr. Sweeney, the vascular surgeon, saw J.D. on May 9, 1991. His notes of the examination reveal he found a large ulceration on the right leg and a smaller ulceration on the left Achilles' tendon. Dr. Sweeney's impression was that the bypass grafts had occluded. Dr. Chapman's notes dated May 13 acknowledge the consultation with Dr. Sweeney, including Dr. Sweeney's concern that both legs would likely be lost if surgery were not done within the next two weeks. Dr. Chapman also noted that same date she had informed the regional utilization review nurse of the seriousness of the situation and the nurse agreed to an emergency admission to Southwest Florida Regional Medical Center under Dr. Sweeney's care. An arteriogram was scheduled for May 21, 1991, but was postponed for a day because of hospital equipment problems. After the test was done, Dr. Sweeney concluded that J.D.'s prior grafts were completely blocked and collateral vessels were supplying the only blood to his legs. Dr. Sweeney performed surgery to remove the infected grafts on May 28, 1991. After surgery, J.D.'s status deteriorated; his legs became non-viable and his temperature elevated to 103. On June 7, 1991, J.D. was taken to the operating room where Dr. Sweeney performed bilateral above the knee amputations. The Standard of Care CCI was a new prison when Dr. Chapman was hired to become its chief health officer. Originally built to house 700 inmates, it double-bunked to a maximum capacity of 1488 inmates by August 1989, and approximately 1400 inmates were housed there while Dr. Chapman was chief health officer. CCI was a close custody, medical grade IV institution. That is, it contained the most violent criminals with a full range of medical problems. Medical grade IV includes the sickest population in the correctional system, as well as all of the less serious medical grades. Dr. Chapman provided overall supervision to approximately 45 employees and direct supervision to approximately 10 employees. She held weekly and monthly staff meetings and was expected to review five sick call charts each day, Monday through Friday. There is ample evidence that Dr. Chapman periodically reviewed the files of both inmates at issue here. She was directly involved in their treatment and examined them personally on occasion. She was also responsible for their care as the supervisor of Dr. DeCespedes and the other staff physicians. Dr. Chapman's job was difficult, if not impossible, as conceded by the agency's expert witness. However, she violated the appropriate standard of care as to inmates A.J. and J. D. by failing to adequately supervise the treating physicians and by failing to obtain appropriate and timely consultations. The ultimate tragic outcomes of the two inmates' cases are plainly not the basis for this conclusion. Cryptococcal meningitis is a difficult disease to diagnose. And, there is a possibility J.D. would ultimately have lost his legs as a result of his persistent smoking, according to the warning of the cardiologist. Yet, in both cases there were increasingly urgent complaints by the subject inmates. Those complaints were deferred by punctilious observance of hollow routine, at best , and misplaced scepticism, at worst. In A.J.'s case, the treatment for sinusitis was appropriate, but the continued complaints of headaches and progressive loss of vision should have alerted the staff to a more pernicious cause. In J.D.'s case, although Dr. Chapman contends that his prior medical records were not obtained until several months after the amputations, the medical staff was well aware of his recent surgery and his history at the time he was received at CCI. The clues, in subjective complaints and in such objective physical signs as weak or non- existent pulse and ischemic ulcers, should have prompted a more immediate evaluation of his peripheral vascular status. In making the above findings of violations, substantial weight has been accorded the opinion of the agency witness, C. A. Rosenberg, M.D., who was appointed by the Federal District Court in 1983 after his nomination by the Department of Corrections, to serve on a three-physician survey team to monitor settlement of a case involving medical care in the Florida correctional system. Dr. Rosenberg's testimony was clear, competent and credible. He was not biased against the system, and was experienced in the role of a supervising physician. His analysis of the records he reviewed was incisive; that is, he distinguished convincingly between medical care that was appropriate and what was not. He acknowledged the difficulty of providing medical care under the circumstances experienced by Dr. Chapman and he confined his criticism to discrete, specific areas where action could have been taken, but was not. In that sense, although he articulated a standard of care that is the same standard imposed on a physician outside of an institutional setting, it is plain that he considered the conditions and circumstances under which Dr. Chapman labored in framing his opinion. Just as it is appropriate to consider these conditions and circumstances in determining whether a violation occurred, it is also appropriate to consider them in recommending an appropriate penalty. From her own testimony and those who have worked with her, Dr. Chapman is a caring physician and is well-respected. No evidence of other past discipline or cause for discipline appears in the record of Dr. Chapman's public service presented in this proceeding.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That the Board of Medicine enter its final order finding that Respondent violated section 458.331(1)(t), F.S. and establishing a penalty of two years probation and $2000 fine. DONE AND RECOMMENDED this 3rd day of March, 1995, in Tallahassee, Leon County, Florida. MARY CLARK 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 3rd day of March, 1995. APPENDIX The following constitute specific rulings on the findings of fact proposed by the parties as required by section 120.59(2), F.S. Petitioner's Proposed Findings Adopted or adopted in substance: Paragraphs #1-5, 7-8, 10-19, 21-25, 29- 35, 38-39, 42-52, 54-59, 61-67, 69-76, 81-84. Rejected as unnecessary: Paragraphs #9, 20, 26-28, 36-37, 40-41, 53, 78- 80. Rejected as unsupported by the weight of evidence: Paragraphs #60, 68, 77. Rejected as a conclusion of law, rather than finding of fact. (Moreover, the standard applied here is described in section 458.331(1)(t), F.S.): Paragraph #6 Respondent's Proposed Findings Adopted or adopted in substance: Paragraphs #1-3, 10-15, 17-21, 23-36 (with exception of final sentence), 37-48, 50. Rejected as unnecessary: Paragraphs #4-9, 16, 49. Rejected as unsupported by the weight of evidence: Paragraphs #22 (as to nursing notes being inconsistent with the blindness complaint), 27, 36 (final sentence-At least some evidence indicates he could not sleep in the infirmary and that is why he wanted to leave), 51-53. COPIES FURNISHED: Dr. Marm Harris Executive Director Board of Medicine Agency for Health Care Administration 1940 North Monroe Street Tallahassee, Florida 32399-0792 Tom Wallace, Assistance Director Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303 Brett Thomas, Esquire Agency for Health Care Administration Legal Section 1940 North Monroe Street Tallahassee, Florida 32399-0792 Anthony D. Demma, Esquire Meyer and Brooks, P.A. Post Office Box 1547 Tallahassee, Florida 32302
Other Judicial Opinions A party who is adversely affected by this final order is entitled to judicial review pursuant to Sections 120.68 and 766.311, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original of a notice of appeal with the Agency Clerk of the Division of Administrative Hearings and a copy, accompanied by filing fees prescribed by law, with the appropriate District Court of Appeal. See Section 766.311, Florida Statutes, and Florida Birth-Related Neurological Injury Compensation Association v. Carreras, 598 So. 2d 299 (Fla. 1st DCA 1992). The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.
Findings Of Fact There are presently three state-owned facilities to which forensic patients are committed, when so ordered, by the judiciary. They are South Florida State Hospital (SFSH), near Hollywood, Florida North Florida Evaluation and Treatment Center (NFETC), Gainesville and Florida State Hospital (FSH) Chattahoochee. SFSH has 150 forensic beds, NFETC has 200 forensic beds and FSH has 396 forensic beds. In 1978, SFSH was directed by the courts to reduce its forensic beds from 270 to 150. Sixty of those beds were reallocated to FSH. In 1974, the Legislature authorized the selection of a site in South Florida to replace the antiquated facility at SFSH. In 1976, money was appropriated for a site and construction of a replacement facility. Legislation also required the closing of SFSH in July, 1980. Numerous sites were investigated and selected however, when local zoning authorities were asked for zoning modifications necessary to construct facilities for forensic patients, those requests wore denied. One or two sites for which zoning was obtained were unacceptable because of extensive site preparation costs. When it became apparent that an appropriate site with the required zoning could not be obtained in South Florida in time to have a replacement facility ready by July, 1980, the Legislature extended the time for closing SFSH until September 1, 1982, and removed the restriction that the replacement facility be constructed in South Florida. Nevertheless, the search for a site in South Florida continued along with a search for sites throughout Florida. Appropriate sites in Volusia and DeSoto Counties were located, but local zoning authorities again refused to permit construction of a mental institution on those sites. With time running out in which to construct replacement facilities for SFSH before September 1982, the available sites became limited to that presently occupied by FSH at Chattahoochee. The site was already zoned, and sufficient area was available to construct the replacement facilities. In 1978, prior to the reduction of 120 beds at SFSH, there were 915 beds for forensic patients in Florida. Presently there are 855 such beds statewide. The reduction of 150 at SFSH and the addition of Use proposed 200 at FSH will still leave less beds available in 1982 than existed in 1978. Forensic patients are comprised of those who, for mental reasons, are judged (1) incompetent to band trial, (2) not guilty by reason of insanity, and (3) sex offenders. The growth in the number of forensic patients in the early 1970's exceeded the State's rate of population growth, but in recent years the forensic population has grown less than the overall population. This is attributed to changes in the laws related to sex offenders and a better working relationship between the courts, HRS and the Department of Corrections. The overall effect has been that the need for beds is closely related to population. Other programs have been proposed to reduce the need for forensic beds such as community treatment facilities for patients who are not a danger to themselves or to others and psychotropic treatment in jails to reduce the forensic bed needs of those found incompetent to stand trial. While these programs, if fully implemented, would reduce the need for forensic beds, the Legislature has not provided funds for these programs and communities resist the activation of facilities to carry out community treatment programs. No credible evidence was presented that the future need for forensic patient facilities will be reduced or that they will not continue to increase in direct proportion to population increases. Despite the leveling-off of demand, there remain some 40 to 60 patients confined in jails awaiting the availability of a bed at a state forensic facility. The average wait in jail for these prisoners is in excess of 45 days. There is a current need for 200 forensic beds to replace the 150 beds to be lost at SFSH September 1, 1982, and for those in jail awaiting a bed. With continued increases in the State's population, additional forensic beds will be needed by the mid-1980's. Due to the time requirements for replacement of SFSH and the fact that the need requirement is statewide, Respondent requested the Florida Panhandle Health Systems Agency (FPHSA) to conduct an expedited review of their application for a certificate of need. In compliance with this request, FPHSA issued the notice, held a public hearing, and submitted their report to HRS recommending the granting of the requested certificate of need without first referring the application to the Sub-area Council for their review and recommendation. South Florida counties of Monroe, Dade and Broward produce a higher number of forensic patients per unit of population than most of the other counties. Some 20 percent of the patients now at the forensic facility at FSH are from these counties. Costs associated with transporting patients from and to the South Florida courts, from which they are committed, will be greater at Chattahoochee than they would if the forensic facility is located in South Florida. Likewise, the costs of providing security during these trips will be increased. The cost of the former will be borne principally by the counties that were unable or unwilling to provide a site for a replacement facility for SFSH. The latter cost may be borne by the State if the counties are unable to provide. Testimony was presented that treatment of the patient in a familiar environment with family and friends is preferred over institutionalized treatment far away from family influences accordingly, the replacement facility would better serve the patients if located in South Florida from whence a large portion of the forensic patients originate. While this evidence was not rebutted, it is noted that wherever the SFSH replacement facility is located it will provide institutionalized care with strict security. Under these circumstances family visits are limited and it appears their influence would be lessened. When an accused is ordered to a forensic facility by the Court, the determination of the facility to which the patient will be committed is made by the HRS office at Tallahassee. If there is no bed available at SFSH for a South Florida patient, he (or she) is assigned to one of the other two facilities rather than remain in jail pending the availability of a bed at SFSH. Since the commitment is handled on a statewide basis, the need for facilities must also be considered on a statewide basis. Long-range plans for facilities for mental patients in Florida include the replacement of SFSH in 1982 and the addition of an additional 200 beds in 1985-86. This latter facility was planned for a North Florida location. When it became apparent that no site could be found in South Florida in time to complete construction by September, 1982, it was decided to build the facility needed in 1982 at FSH and the 1985 facility in South Florida. Approximately one week prior to the hearing the City of Miami rezoned a downtown area to allow the construction of facilities for forensic patients. If funds are appropriated forthwith and no injunctions are granted to stay construction, a facility at this location could be operational in 1985. Staffing for the facility at FSH will present some problems with respect to the employment of psychiatrists, psychologists and nurses due to state pay scales and nation- wide shortages in these professions. No credible evidence was presented that a replacement facility in South Florida would not have the same or worse staffing problems than would the proposed facility at Chattahoochee.
Findings Of Fact In April, 1987, DOA submitted recommendations to the Florida Legislature which included proposed changes in the state employees' group insurance program. Among the recommendations was a proposal that would require the Department to competitively bid HMO contracts in the state health program on the basis of cost, service area, plan benefits, and accessibility. The stated objective of the recommendation was to: encourage HMOs in a geographic location to structure their premiums to reflect actual cost experience and to provide the lowest possible cost for the state and state employees, while at the same time changing the current concept of the state's contributions to HMOs..." At the time of the DOA legislative recommendation, existing state law provided that persons eligible to participate in the state group health insurance program had the option to elect membership in any qualified HMO engaged in providing basic health services in the HMO service area where the employee resided in lieu of participating in the state self-insurance plan. Section 110.123(3)(d), Florida Statutes, Rule 22K-1.1003(21), F.A.C. A "qualified" HMO was defined as an entity qualified under the federal Public Health Service Act, 42 U.S.C. 300e-9, or certified under Part II of Chapter 641, Florida Statutes, which had entered into a contract with the State, and had achieved a designated level of participation by state employees. Rule 22K- 1.1003(21), F.A.C. Effective October 1, 1987, Chapter 87-156, Laws of Florida (now codified as Section 110.123(3)(d), Fla. Stat.) was amended to add the following: (3) STATE GROUP INSURANCE PROGRAM. -- * * * (d) * * * 2. Effective January 1, 1988, the Department of Administration shall, by rule, contract with health maintenance organizations to participate in the state group health insurance plan through the competitive bid process based on cost, service area, plan benefits, and accessibility. Effective January 1, 1988, all employees participating in the state group health insurance plan, irrespective of whether or not the member participates in a health maintenance organization, shall be subject to the same total premium, regardless of the state or employee's share. THE REQUEST FOR PROPOSALS Dennis Nye, then the DOA Director of the Office of State Employees Insurance and administrator of the state health insurance program, was directly responsible for implementing the new legislation regarding the HMO contracts. He initially determined that procurement of HMO contractual services was governed by Section 287.057, Florida Statutes. The Request For Proposals For Health Maintenance Organization Coverage was issued on July 31, 1987, as "Bid No. 88-05." It scheduled a presubmission conference on August 12, 1987, and established the deadline for receipt of proposals of August 28, 1987, with a contemplated date of award of contract on September 14, 1987, and an effective contract date of January 1, 1988. The Department clearly set forth the general purpose of the RFP in Section II as requiring each proposal to meet the benefit objectives and to provide high quality benefits and services to state employees. More specific objectives were as follows: A proactive approach to cost containment, including an emphasis on aggressive claims management, utilization review and superior statistical reporting Quality medical care which encourages health promotion, disease prevention, early diagnosis and treatment. Stability in the financial structure of offered health plans. Professional, high quality service in all administrative areas including claims processing, enrollment, membership services, grievances, and communications. Competitive premium rates which take into account the demographics and, if appropriate, the claims experience of State employees. DOA stated other objectives to be as follows: Have each county or contiguous group of counties be considered one service area. Award no more than two contracts per service area; however, the awards will be based on the HMO's ability to respond to the needs of employees and on accessibility by employees. Have reciprocal agreements between locations, if an HMO has multiple service areas. For example, an employee covered in Miami with a covered dependent living in Gainesville, should be provided similar services. Enter into a two year, non-experience rated contract. A provision will be included tying renewal action at each of the two renewals to the Consumer Price Index (CPI) for Medical Care Services. This will become part of the contract. Section III of the RFP stated that to be considered as a "qualified" HMO, the proposer must be licensed by the Department of Insurance pursuant to Part II of Chapter 641, Florida Statutes. Each proposer was required to submit the following: Form PUR 7033, properly completed and signed. The completed Questionnaires Requirements Section (Please answer questions in the same order as they appear in that Section; do not reformat). The completed Cost Proposal forms (Please use the enclosed form on page 43 and 44; do not reformat). The completed Statement of Compliance on page 47. Documentation in support of the above. Section III further provided in part as follows: Proposals are to be submitted only on the forms and formats provided in this RFP. All exhibits requested must be submitted with your proposal along with answers to all questions contained in this RFP. Section IV of the RFP provided that each contract would be for a 24 month term, beginning January 1, 1988. The Department reserved the right to renew the contracts on the same terms and conditions of the initial contract for two additional one-year periods. Section VI of the RFP, concerning "Required Benefits and Services," listed the minimum benefits that must be provided, and also required that a complete list of all other intended services for each service area be provided. Section IX specified the following criteria for evacuation of the proposals: Premium Cost Extensiveness of Service Areas by County and/or contiguous Counties. Note: The State's objective is to award no more than two contracts per services (sic) area; however, the awards will be based on the HMO's ability to respond to the needs of employees and on accessibility by employees. Plan Benefits as follows: Covered services Limitations and exclusions Co-payments, deductibles and co-insurance features Range of providers including specialists and number of hospitals Out of service area coverage Grievance procedures Acessibility as follows: Reciprocal agreements Provider locations Number of primary care physicians and specialists, in relation to membership Completeness of proposals The RFP did not provide information on DOA's evaluation of the legislatively required criteria concerning the importance of price and other evaluation criteria. The Department weighed cost equal to benefits plus accessibility and determined accessibility was a part of the plan benefits. Section X was a questionnaire with forty-nine questions for the proposers to answer including questions regarding the proposer's license status, corporate structure, reserving practices, reinsurance contracts, service area, employee membership and staff, hospitals and other care facilities, participating physicians, utilization review, and other information regarding the proposer's case management, control mechanisms, statistical reporting, and the like. Each proposer was directed to submit audited financial statements for the last two fiscal years, together with financial statements for the first quarter of 1987. Section XI dealt with cost proposals and provided a form for completion as to proposed premium rates. In an undated addendum to the RFP, the Department added Question 50 to the RFP to provide information for use in a brochure which would allow state employees to compare the benefits offered by the various HMOs. In the pre-submission conference held on August 12, 1987, and attended by representatives of the HMOs, the participants were informed by Mr. Nye that the two criteria of cost and benefits would be weighted on an equal basis. He also advised that the State would enter into a two year, non-experience rated contract, subject to renewal which would tie rate increases to the Consumer Price Index for Medical Care Services. Proposers were told to quote a specific rate for the first year of the contract, and a percentage increase or decrease for each of the following three years. However, he noted that the State would evaluate cost solely on the basis of the premium for the first year. He indicated that two HMOs per service area would be awarded contracts based on the highest number of points received in the bid evaluation process, and not based upon the type of HMO, such as an individual practice association (IPA) or staff model. Then asked whether some factors would be weighted higher than others, Mr. Nye responded that benefits and cost would be weighted higher. THE PROPOSERS 15. Twelve HMOs submitted proposals to the Department for the South Florida area (Dade, Broward, and Palm Beach Counties) in response to the RFP by the deadline, and several of those submitted more than one proposal. There was, however, no prohibition on submitting multiple proposals, and prospective bidders were told that they had that option. In this proceeding, proposals were received from Health Options, Heritage, and Humana to serve Dade, Broward, and Palm Beach Counties, and a proposal from Gulfstream to serve Palm Beach County. Health Options is a for profit subsidiary of Blue Cross and Blue Shield of Florida, and is an individual practice association (IPA) model HMO. Health Options offers HMO services in Dade, Broward, and Palm Beach Counties. It has a total membership of 23,074 members, of which 517 are state employees and dependents. Heritage is a subsidiary of Heritage Health System, Inc., for profit Delaware Corporation, and is an IPA model HMO. Heritage offers HMO services in Dade, Broward, and Palm Beach Counties, and has a total membership of 12,500 members, including 10 state employees and dependents. Humana is a for profit subsidiary of Humana, Inc., and is a combination staff/IPA model HMO. Humana offers HMO services in Dade, Broward, and Palm Beach Counties, and has a total membership of 91,217 members, including 3,273 state employees and dependents. Gulfstream, at the time its proposal was filed, was a limited partnership whose general partner was Equicor Holding Company and whose limited partner was H.C.A. Care of Florida, Inc. The limited and general partners were wholly owned subsidiaries of Equicor, Equitable H.C.A. Corporation, which is owned by Hospital Corporation of America and the Equitable Life Assurance Society of the United States. On January 1, 1988, Gulfstream converted to corporate form, and is now known as Equicor Health Plan of Florida. Gulfstream offers services in Palm Beach County and has a total membership of 12,335 members, including 933 state employees and dependents. THE EVALUATION PROCESS The evaluation of the proposals submitted by HMOs throughout the state for the seven service areas was initially accomplished by employee evaluation teams made up of employees in Dennis Nye's office. He was assisted in his selection by Marie Walker, a benefits analyst in his office. Dennis Nye and Ms. Walker decided which employees could best evaluate the proposals based on the criteria established in the law, including familiarity with benefits and the request for proposal process. The employees selected for these duties had varying degrees of knowledge concerning health plan benefits, HMOs, and bid evaluations. After the initial evaluation was completed, the Department determined that inconsistent methods had been used to score the proposals and further directed Dennis Nye to continue the evaluation process based upon an objective scoring system which limited subjectivity to the maximum extent possible. As Secretary, I was concerned with the financial soundness of each bidder and instructed Dennis Nye to keep that aspect in mind when making his final recommendation. The second or "final evaluation" of the proposals was solely based on the five criteria contained in the RFP, i.e., premium cost, extensiveness of service area, plan benefits, accessibility, and completeness of proposals. In his memorandum of October 6, 1987, Mr. Nye initially recommended that contracts be awarded in the Jacksonville, Pensacola, and Gainesville Service Areas to the two HMOs in each area that had received the top rankings. 1/ However, in the South Florida Service Area, he recommended awarding four contracts based on the need to provide one staff model and one IPA model HMO in each county in the service area. It was Mr. Nye's belief that federal law required that one HMO of each type be offered in each service area, if available. I was concerned about this issue and asked DOA's General Counsel, Augustus Aikens, to review it. He informed me that the federal requirement was not applicable because a state was not included within the definition of "employer" under the applicable federal law. On the bass of this legal advice, directed Mr. Nye to review his previous recommendations as they related to the need to retain one IPA model and one staff model HMO in each service area. In his memorandum of October 26, 1987, Mr. Nye recommended that contracts be awarded to Health Options and to Heritage on the bases that they were "the lowest, best bids for (the) service area." In his memorandum of October 30, 1987, he again recommended that contracts be awarded to Health Options and Heritage. Throughout the entire bidding process, it was my desire to avoid awarding a contract to an HMO which was not in compliance with state law or the rules of the Department of Insurance. I had written to the Department of Insurance seeking its assistance to determine the ability of each bidder to comply with the state law and to meet the needs of the state employees. By letter of October 23, 1987, the Department of Insurance informed DOA that it had approved the rates of Health Options and Heritage. EVALUATION OF THE PROPOSALS Premium Costs The Department specifically designed the RFP to require each proposer to list separate costs in categories of "employee only" and "family" for active employees and retired employees under sixty-five. Required rates for Medicare recipients were to be shown separately listing rates for retirees, retiree and spouse (both on Medicare), and retiree and spouse (one with Medicare, with or without other eligible dependents). A fixed premium cost was required for calendar year 1988 and a percentage of that rate was to be shown for the successive three years. Rates for those last three years were to be "established as a percentage of the first year's premiums" with the maximum increase "limited to the increase, if any, in the overall medical portion of the Consumer Price index." (RFP, Section XI) The rates bid by each HMO were as follows: 2/ A. Heritage (low bid): Employee Only Family Dade, Broward, 66.46 166.15 and Palm Beach B. Health Options (low bid) Dade and Broward: 78.00 195.00 Palm Beach: 75.00 185.00 C. Humana, Dade: 85.02 206.01 Broward: 83.01 199.22 Palm Beach: 77.44 185.86 D. Gulfstream, Palm Beach: 78.92 197.28 (The instructions provided that the total cost of the "family plan" shall not be greater than 2.5 times the total cost of the "employee only" plan.) DOA evaluators computed a "mean" premium cost by adding the premiums for all bidders, dividing by three, and comparing each premium to the "mean," which was then given five points. A premium above the mean gave a bidder less than five points while a premium below the mean gave the bidder more than five points. The same method was used for the "employee only" plan, the "family" plan and the three Medicare retiree groups. Based on the Department's estimate that active employees constituted 90 percent and retirees 10 percent of an HMO membership, the final point calculations were: A. Heritage (low bid): Combined (Dade, Broward and Palm Beach) 9.35 B. Health Options (low bid) Dade and Broward: 7.75 Palm Beach: 9.1 Combined (Dade, Broward and Palm Beach) 8.17 C. Humana Dade: 5.72 Broward: 6.26 Palm Beach: 8.65 Combined: 6.57 D. Gulfstream Palm Beach: 6.61 The Hearing Officer evaluated the above process and found that the Department's action was reasonable even though "the cost proposals were evaluated solely on the basis of premium for 1988." He based his conclusion on: First, Nye announced at the pre-bid conference that proposals would be evaluated solely on that basis. Second, premium costs in succeeding years were limited to the lower of the cost proposed or the future and presently unknown Consumer Price index for Medical Care Services. Accordingly, no meaningful evaluation could have resulted from a consideration of premium costs for succeeding years. (R.O., page 17) Extensiveness of Service Area At the pre-submission conference, proposers were told that they should designate their service areas and that bids would be awarded on the basis of the entire service area. DOA's evaluators awarded two points for each full county and one-half point for each partial county and proposers received 2, 4, or 6 base points depending on whether their proposal was being evaluated on one, two, or three county service area. Heritage submitted one proposal, and designated its service area as Dade, Broward, and Palm Beach Counties. Its proposal was evaluated on a composite or combined basis. Health Options submitted one proposal and designated its service area as Dade, Broward, and Palm Beach Counties. Its proposal contained two separate premium costs: one for Dade and Broward Counties, and one for Palm Beach County. The Department evaluated Health Options' proposal as it related to the individual counties of Dade, Broward, and Palm Beach County, and on a combined basis (Dade, Broward, and Palm Beach Counties). Humana submitted three separate proposals, which designated three separate service areas: Dade, Broward, and Palm Beach Counties. The Department evaluated Humana's proposal for each county and on a combined basis. Gulfstream submitted one proposal, and designated its service area as Palm Beach County. The Department evaluated Gulfstream's proposal for Palm Beach County. The Hearing Officer found that the above evaluation procedure "was reasonable and a valid exercise of the agency's discretion." (R.O., page 35) ACCESSIBILITY The Department evaluated accessibility criterion on the basis of ten points each for reciprocal agreements provided statewide and national services, ten points for each county of the service area in which a hospital was located, two points for each specialty provider in each county, and one point for each provider physician and specialist. These raw scores were then evaluated further to obtain a "mean" score for each proposer as follows A. Heritage (low bid), Combined: 5.8 B. Health Options (low bid), Dade and Broward: 8.71 Palm Beach: 1.1 Combined: 9.51 C. Humana, Dade: 4.16 Broward: 3.32 Palm Beach: 1.31 Combined: 8.79 D. Gulfstream Palm Beach: 1.18 The Hearing Officer found that the above evaluation procedure "was reasonable and a valid exercise of the agency's discretion." (R.O., page 36) COMPLETENESS OF PROPOSALS The original statutory criteria contained in Chapter 87-156, Laws of Florida, included the areas of "cost, service area, plan benefits, and accessibility." To these criteria, DOA added the fifth criterion of completeness of proposals." The Hearing Officer ruled that "(t)he Department's inclusion of this criterion was reasonable." (R.O., page 22) TOTAL POINTS Total points were calculated by adding the base points to a weighted score. In deriving the weighted score, the criteria were weighted as follows: premium costs at 3.5 times, plan benefits at 2.5 times, accessibility at 1 time, extensiveness of service area at 1 time, and completeness of proposal at 1 time. In evaluating the proposals, the Department first evaluated bids solely against other bids for the same service area. For example, Gulfstream's bid was first evaluated against only those other bids that proposed to provide services in that county. In this manner, Gulfstream ranked fourth out of the five bidders in Palm Beach County, and thirteenth overall. The points and ranking assigned by the Department to the top six proposers and to Gulfstream were as follows: HMO Base Points Weights Total Points Rank Heritage (low bid): 35.34 34.15 70.5 1 Health Options Combined (low bid) 38.59 30.79 59.48 2 Av Med 38.95 24.875 63.825 3 Health Options Dade & Broward (low bid) 34.03 27.73 51.76 4 Heritage (high bid) 34.17 25.925 60.095 5 Humana Combined: 35.05 23.46 58.51 6 Gulfstream Palm Beach: 22.46 22.03 44.49 13 A review of this table shows that the weights altered the relative positions of each of the top six proposers. Mr. Nye testified that the weighting utilized did not affect the ranking of the bids of the proposers and only affected the ranking of one bidder, AV-Med. As the Hearing Officer concluded, the proof was contrary to Mr. Nye's testimony. His finding on this point is supported by competent substantial evidence and is hereby adopted. Based on the results of its evaluation the Department proposed to award the contracts to Heritage (low) and to Health Options (combined-low). HUMANA'S COST/BENEFIT ANALYSIS Humana introduced expert testimony to demonstrate that, benefits and cost were weighted equally, its cost-to-benefits ratio would be comparable to or better than the successful proposers. Two analyses were presented. One actuarial expert adjusted the different benefit patterns of Heritage and Health Options up to the Human a benefit level and adjusted their price according to actuarial information filed with the Department of Insurance. The testimony sought to place the proposers on the same co-payment/benefit level to compare premium costs. The result was that Humana's premium cost was the second lowest for the South Florida Service Area. The second analysis adjusted Humana's benefit pattern down to the benefit/co-payment levels of Heritage and Health Options, and adjusted Humana's premium cost down accordingly based on Humana's filed actuarials. This testimony sought to place the proposers on the same co- payment/benefit level to compare premium costs, and Humana' premium cost was comparable to or lower than the second lowest bidder. The Hearing Officer found that the analyses by the expert witness were not persuasive in demonstrating that Humana was the second lowest proposer in this case, or that its cost/benefits were the second lowest. (R.O., page 26) For example, the fitness did not evaluate the bids based on the five criteria contained in the RFP, nor did he include in the cost/benefit analysis all of the criteria utilized by the Department to evaluate benefits. The findings of the Hearing Officer on this point are supported by competent substantial evidence and are therefore adopted. Plan Benefits The criteria for the evaluation of all proposals was set out in Section IX of the RFP as follows: Covered services; Limitations and exclusions; Co-payments, deductibles and co-insurance features; Range of providers including specialists and number of hospitals Out of service area coverage Grievance procedures Three sections in the RFP requested information which was relevant to the plan benefits. Section VI listed the required minimum benefits and requested a complete list of all other services. Each provider was directed to specify co-insurance, deductible, co-payment and other features for all benefits and services for each service area, and to list all limitations and exclusions for all benefits and services for each service area. Section X was a questionnaire which required each propose to list information concerning hospital, ambulatory care facilities services, available physician specialties, programs for health status evaluation, screening and health promotion, limitations or restrictions relative to organ transplants, range of providers and number of hospitals, availability of skilled nursing benefits, a list of the proposer's physician panel, and out-of-service area coverage. Under the Department's Scoring system, each propose received the following scores: A. Heritage 398 B. Health Options Dade & Broward 308 Palm Beach 165 C. Humana Dade 210.5 Broward 161.5 Palm Beach 184.5 D. Gulfstream Palm Beach 203 Using a similar method to calculate a "mean" score as was needed in the premium cost criteria, the base points were as follows: A. Heritage (low bid), Combined: 7.19 B. Health Options (low), Dade and Broward: 5.57 Palm Beach: 2.28 Combined: 5.91 C. Humana, Dade: 3.38 Broward: 2.92 Palm Beach: 3.34 Combined: 4.59 D. Gulfstream, Palm Beach: 3.57 Limitation to Two Successful Bidders Humana and Gulfstream argued that they should not be excluded from being awarded a contract because there was no foundation which required the limitation of the contracts to two or to any number of HMOs. The Department had considered awarding contracts to more than two proposers but rejected doing so because such action best effectuated the general objectives of the RFP, including that of promoting competitive rates. The Hearing Officer agreed with the Department and correctly found that "there was no showing that the selected HMOs could not adequately satisfy the needs of the state employees." (R.O., page 35). He concluded: "While the statute did not specify a number, it did specify that the Department contract through the competitive bid process. If the contracts are not limited in number, there is no competitive bidding process. Accordingly, it is concluded the Department acted reasonably in limiting the award to two HMOs." (R.O., page 35) Employee Evaluation Teams Yet another contention of the Petitioners was that the DOA employee evaluation teams lacked the experience and knowledge in the health care services field and should have been disqualified as not meeting the requirements of Section 287.057(16), Fla. Stat., which states as follows "A selection team of at least three employees who have experience and knowledge in the program areas and service requirements for which contractual serviced are sought shall be appointed by the agency head to aid in the selection of contractors for contracts of more than the threshold amount provided in s. 287.017 for CATEGORY FOUR." After full consideration of the above provision, the Hearing Officer agreed with the Department and found that the employees met the minimum statutory criteria (R.O., page 35) and had sufficient experience and knowledge in the area to properly evaluate the proposals (R.O., pages 13, 14). Departure From RFP At the pre-submission conference, Mr. Nye announced that cost and benefits would be weighted equally. In its final evaluation, the Department weighted cost at 3.5 and benefits at 2.5. The remaining criteria, accessibility, extensiveness of service area, and completeness of proposal , were weighted at I each. The Hearing Officer found that the Department's final evaluation failed to conform to the weighting factors announced at the pre- submission conference. 45. He further stated that: 43. The Department's failure to accord equal weight to cost and benefits was arbitrary and capricious. Such failure was a material departure from the RFP, as supplemented by the pre-bid conference, and adversely impacted the bid procurement process. ... Plan benefits and accessibility under Section 110.123(3)(d), Florida Statutes, and the RFP were distinct criteria upon which proposers formulated their responses. They were also distinct criteria when the Department told proposers that cost and benefits would be weighted equally, were distinct criteria when evaluated by the Departmen, and had a distinct impact upon the ranking of proposers. Under the circumstances, the Department's failure to accord them equal weight was arbitrary and capricious. Rather than acknowledge the disparity that existed between cost and benefits, the Department contended at hearing that accessibility was a part of benefits, and therefore cost and benefits were weighted equally. The Department's contention, and proof, was not persuasive and is rejected as not credible. (R.O., pages 24, 25) The Department finds that the above findings of fact are supported by competent, substantial evidence and adopts them in this final order. INTERVENORS' EXCEPTIONS TO RECOMMENDED ORDER Exceptions of Heritage Heritage filed six exceptions to the Recommended Order and each exception will be considered separately. Exception Number 1: Heritage argued that the Hearing Officer erred when he found that the Department's failure to accord equal weight to cost and benefits was arbitrary and capricious. While the Department agrees with the cases cited by Heritage which hold that administrative agencies have broad discretion in evaluating contracts for personal services such as health services, the Department is aware of its statutory responsibility to adhere to the bidding requirements of Section 287.057, Fla. Stat., and does not believe that it has the discretion to enter into contracts absent the competitive process. As to the testimony of Mr. Burbank, the Hearing Officer, as the trier of fact, was in the best position to assess his credibility and determine the weight to be accorded to his testimony. Koltay vs. Department of General Services, 374 So.2d 1386 (Fla. 2nd DCA 1979). The Department is unable to reject the Hearing Officer's findings in an area clearly within his responsibility. Exception Number 1 is rejected. Exception Number 2: Heritage next argues that the Hearing Officer erred in applying the arbitrary and capricious standard to the Department's actions relating to the weights given to various factors. The evidence shows that at the presubmission conference, Mr. Nye informed all proposers that the weights to be assigned to premium costs and to plan benefits would be equal. That information was clearly erroneous because, in the actual evaluations, the evaluators used a different weighting system, one that gave premium costs 40 percent greater weight than plan benefits. It is not the weights given to each category that makes the Department's actions arbitrary and capricious but its failure to adhere to and apply its announced weighting factors. On this basis, Exception Number 2 is rejected. Exception Number 3: Heritage urges that the Hearing Officer erred in concluding that the Department's failure to comply with the provisions of Section 287.012(11), Fla. Stat., was fundamental error. The above statute by its terms provides that "(r)equests for proposals shall state the relative importance of price and any other evaluation criteria." (emphasis added). According to the common usage of the term "shall", this language is mandatory (Fla. Tallow Corporation vs. Bryan, 237 So.2d 308 (Fla. 4th DCA 1970); S.R. vs. State, 345 So.2d 1018 (Fla. 1977) and requires that the weight of the criteria must be included in the RFP. Therefore, Exception Number 3 is rejected. Exception Number 4: Heritage argues that the Hearing Officer erred in granting standing to Gulfstream. In Preston Carroll vs. Fla. Keys Aqueduct Authority, 400 So.2d 524 (Fla. 3rd DCA 1981), an unsuccessful bidder who was third low bidder, attempted to overturn the award of the contract to the low bidder. The district court held that while a second low bidder to the award of a contract had the necessary "substantial interest" to contest the award. However, a third low bidder was unable to demonstrate that it was "substantially affected" and therefore lacked standing to protest the award of the contract to another bidder. Under the holding in this case, the Department concludes that Gulfstream did not have standing in this case since it ranked 13th in the ranking of low bidders. According, Exception Number 4 is accepted and included in the Conclusions of Law of this Order. Exception Number 5: Heritage argues that the Hearing Officer erred in concluding that Humana had standing to protest the Department's failure to state the relative importance of price and any other evaluation criteria in the RFP because Humana did not raise this point as an issue in its formal protest. If Humana did not have standing, then it was improperly permitted to protest the award of one of the contracts to Heritage. A review of Humana's protest shows that in Item 9, it argued that: "That the rejection of Humana's response to RFP #88-05, HMO coverage for State employees in Clay, Dade, Broward and Palm Beach Counties was not in accordance with all applicable rules, regulations, procedures, precedents and bid criteria." The rules of the Division of Administrative Hearings (Rule 22I-6.004(3), F.A.C.) provide for the minimum filing requirements in initial pleadings and state as follows: "(3) All petitions should contain: The name and address of each agency affected and each agency's file or identification number, if known; The name and address of the petitioner or petitioners, and an explanation of how his/her substantial interests will be affected by the agency determinations; A statement of when and how petitioner received notice of the agency decision or intent to render a decision; A statement of all disputed issues of material fact. If there are none, the petition must so indicate; A concise statement of the ultimate facts alleged, as well as the rules and statutes which entitle the petitioner to relief; A demand for relief to which the petitioner deems himself entitled; and Other information which the petitioner contends is material." (emphasis added) The requirements of this rule are directory only and not mandatory and are not designed to deny petitioners a hearing in which their "substantial interests" are affected. Section 120.57, Fla. Stat., see Seminole County Board of County Commissioners vs. Long, 422 So.2d 938, 940 (Fla. 5th DCA 1982). The initial protest of Humana complied with the minimum filing requirements of Rule 22I-6.004(3), F.A.C., above, and was sufficient to place Heritage on notice of deficiencies alleged to be in the RFP. Exception Number 5 is rejected. Exception Number 6: Heritage argues that "(t)he Hearing Officer erred in concluding that the Department should invoke its right to reject all proposals." Contrary to Heritage's argument, the Department did not communicate how the criteria would be weighed in accordance with Section 287.012(11), Fla. Stat. It is not possible to cure the deficiency in the RFP by recalculating the proposals. The deficiency can be corrected by re-bidding for proposals for HMO medical services. On this basis, Exception Number 6 is rejected. HEALTH OPTIONS' EXCEPTION TO RECOMMENDED ORDER Health Options as one of the successful bidders filed an exception to the Hearing Officer's finding which stated that DOA had failed to state the relative importance of price and other criteria in the RFP. It argued that this issue was not presented by Humana or Gulfstream in the formal protests and thus could not be considered in the Recommended Order. Therefore, Health Options urged that the Department's award of the two HMO contracts was proper and should be upheld. As previously stated, Humana's protest argued that the rejection of its bid "was not in accordance with all applicable rules, regulations, procedures, precedents, and bid criteria." (Item 9 of Protest). Humana's protest complied with the minimum filing requirements of the Department of Administrative Hearings (Rule 22I-6.004(3), F.A.C.) which provide that petitions should contain: A statement of all disputed issues of material fact. If there are none, the petition must so indicate; A concise statement of the ultimate facts alleged, as well as the rules and statutes which entitle the petitioner to relief; A demand for relief to which the petitioner deems himself entitled; While Gulfstream's formal protest did not state that its protest was founded on the Department's failure to state the relative importance of price and other evaluation criteria in the RFP, all that was necessary for the Hearing Officer to rule on this issue was for one of the petitioner's to raise the issue in its initial protest. Since the issue was raised by Humana, the Exception of Health Options is rejected. DEPARTMENT'S EXCEPTIONS TO RECOMMENDED ORDER The Department also filed timely exceptions to the Recommended Order. After reviewing those exceptions, I find that to the extent they are not adopted and accepted herein, they are inappropriate findings of fact and have not been considered further in this Order.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department enter a final order rejecting all proposals submitted for the South Florida service area. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 22nd day of March, 1988. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1050 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of March, 1988.
The Issue Whether Respondent, Russell Spencer, willfully abandoned his employment with Petitioner, South Florida Water Management District, by unauthorized absence and failure to call-in or report to work for a three day period, without extenuating circumstances.
Findings Of Fact Respondent was employed by the District as a title examiner in its Real Estate Division. Respondent felt aggrieved and dissatisfied with his employment as a result of the denial of two promotions, which he believed he was entitled to receive. Most recently, in February, 1985, his application to fill the position of "Director of the Real Estate Division" was denied. (P-4) The Directorship of the Real Estate Division was vacated on January 31, 1985, as a result of the retirement of Jack W. Braun, who had held that position for approximately 12 years. Upon Mr. Braun's retirement, William C. Brannen, Jr., Director of the Land Management Department (which includes the Real Estate Division) assumed the position of Acting Director of the Real Estate Division until a new director could be hired. As Acting Director, he was Respondent's immediate supervisor during the interim period. The District has a long-standing written policy regarding annual leave, which requires prior written authorization from the immediate supervisor. The policy in effect in November 1982 and continuing through February 1985, states: Use of Annual Leave: a. * * * b. The use of annual leave shall require the prior approval of the employee's Supervisor or Division Director. Annual leave requests for more than 30 calendar days shall require prior written approval of the employee's Department Director. (p-10) The District's attendance and leave policy was revised on February 28,n 1985, but not with regard to the use of annual leave. The District developed and utilized a standard form for requesting annual leave. (P-11, P-12) On February 26, 1985, Respondent approached a co- worker, Andrew DuBois, and asked him to forward to Mr. Brannen (Acting Division Director) the following memorandum dated that day: In reference to the above subject matter, I have, at this writing, 200 plus hours of annual leave accrued and I intend to use whatever necessary to retain legal counsel to file suit on my behalf against this District. (P-1) He also asked Mr. DuBois to submit blank time sheets on his behalf. Mr. DuBois declined to become involved because he believed the matter was between Respondent and his supervisor. He did, however, remind Respondent of the need to obtain prior approval for annual leave. Respondent replied that he would not submit a leave request "for legal reasons." (P-34) He then left the District's offices and went home. Upon receipt of Respondent's memorandum, Mr. Brannen consulted with Mark Chapman, Director of the District's Personnel Department, as to the appropriate response. Mr. Chapman advised Mr. Brannen that Respondent was subject to disciplinary action under the District's Corrective Action Policy for taking unauthorized leave. (P-18, Section F.2.; Testimony of Brannen, Chapman Section C.7. of the District's Attendance and Leave Policy) Instead of initiating disciplinary action, Mr. Brannen telephoned Respondent and asked him to meet with him at 1:00 p.m. that day, February 26, 1985, to discuss his use of leave. At 1:00 p.m., Respondent, Mr. Brannen and the District's legal counsel, Thomas Schwartz, met at the District's offices. Mr. Brannen reminded Respondent that he was his acting supervisor and that his prior approval was required before Respondent could use annual leave. In reply to Respondent's expressed desire to seek legal counsel to file suit against the District, attorney Schwartz told him that his reasons for taking leave were immaterial with regard to whether a leave request would be granted. Respondent then asked for five days leave, through March 1, 1985. He completed the required leave forms and they were approved at the meeting. (P-2 Testimony of Brannen, Schwartz) Two days later, Mr. Brannen prepared a memorandum for the files summarizing the February 28, 1985, meeting. The memorandum, a copy of which was sent to Respondent by certified mail on March 1, 1985, and received on March 2, 1985, contains the following statement: We met at the appointed time and I explained to Russ that us of annual leave must have prior approval by me as his acting supervisor. We discussed how long he felt he needed to be on leave. Russ said he needed to be off through March 1, 1985. He filled out leave slips and I approved use of annual leave through March 1. (P-2) On February 28, 1985, Respondent returned to pick up his paycheck. On that date, Mr. Brannen and Mr. Dubois observed that Respondent's desk and office had been emptied of all personal materials and assumed that Respondent did not intend to return to work. (P-34; Testimony of DuBois, Brannen) Respondent's apparent intention not to return to work disturbed Mr. Brannen because there was a significant backlog of title examination work. Due to recruitment procedures it would have taken considerable time to hire a new title examiner, and recruitment could not be initiated until Respondent expressed a definite intention to resign. (Testimony of Brannen) Respondent's leave expired at 5:00 p.m. on Friday, March 1, 1985, but he did not return to work on Monday, March 4, 1985, the next working day. At 8:09 a.m. that date, Respondent telephoned Mr. DuBois, asking him to relay to Mr. Brannen his request for an additional week of annual leave through March 8, 1985. Mr. DuBois immediately relayed the request to Mr. Brannen, who telephoned Respondent at 8:21 a.m. at his residence, but received no answer. (P-3, P-34; Testimony of Brannen, DuBois) Mr. Brannen discussed Respondent's further unauthorized absence with Personnel Director Chapman, who again suggested that he take disciplinary action against Respondent for failure to follow instructions. Mr. Brannen, however again declined to take disciplinary action and instead decided to approve—after-the-fact—Respondent's verbal request for additional annual leave. On March 4, 1985, he mailed a letter to Respondent advising: Although you did not contact me as I instructed you to do, your use of annual leave through 5 p.m., March 8, 1985, is approved. You will be expected to return to work no later than 8 a.m., March 11, 1985. We have a backlog of title work to complete which requires your help; therefore, even though you have accrued annual leave, any further request for its use must be denied at this time. If you do not report to work as instructed you will be placed on an unauthorized leave without pay status until you return to work. After three days on unauthorized leave you'll be considered to have abandoned your job. (e.s.) Respondent received the letter on March 6, 1985. (P-3; R-2) On March 5, 1985, Respondent sent a letter to Stanley Hole, Chairman of the District's Governing Board, expressing dissatisfaction with the denial of certain promotions and alleging that the District had a policy of affording preferential treatment to friends and relatives. Respondent then stated that "I will interpret no reply or an adverse reply as an involuntary termination of 18 years of employment with District." (P-4) Although this direct communication with the Board circumvented the District's grievance procedures, the Executive Director of the District, fowarded a copy of the letter to the members of the Governing Board with a cover memorandum dated March 8, 1985. On that day, the District's Deputy Executive Director, Tilford C. Creel, sent Respondent a certified letter, which stated in relevant part: We do not agree with the general content of your letter and particularly we do not agree that you will be terminated due to "no reply or an adverse reply" to your letters. The authority to terminate employees resides in the executive office and in your case, Mr. Brannen informs me that you have been granted annual leave through Friday, March 8, 1985. He further informed me that the workload in the title examination area is such that we are in great need of your services and cannot extend your leave any further. There is only one other title examiner and the backlog of work continues to increase. Therefore, we will expect you to report to work on Monday, March 11, 1985, as you were adivsed by Mr. Brannen. (e.s.) (P-5; P-9) Respondent, however, failed to report to work on March 11, 1985. Neither did he telephone District officials, prior to or on that date to request an extension of his annual leave. Respondent also failed to report to work or telephone the District on Tuesday, March 12, 1985 or Wednesday, March 13, 1985. He was not ill or incapacitated or otherwise unable to reach a telephone. (Testimony of Brannen, Spencer) On Thursday, March 14, 1985, the District notified Respondent by certified letter that, effective at 5:00 p.m. on March 13, 1985, he was deemed to have abandoned his employment pursuant to Section C.7. of the District's Corrective Action Policy for failure to report to work for three consecutive working days. Personnel action was initiated that same date by Mr. Brannon. On March 29, 1985, the District notified Respondent by certified mail of his right to petition for an administrative hearing pursuant to Section 120.57, Florida Statutes, after first pursuing the normal grievance procedures. (P-6, P-7, P-8) Respondent requested a grievance hearing by letter dated April 5, 1985. The hearing was held by the Grievance Review Board on April 17, 1985. The Review Board consisted of two supervisory personnel and two non-supervisory personnel, selected at random by Respondent. After Respondent failed to appear at the hearing, the Board concluded that Respondent had ample notice and opportunity to return to work and that termination of his employment was justified and consistent with District policy and procedure. (P-13) Respondent then appealed the Grievance Review Board determination to the Executive Director, who affirmed it. It was a long-standing District policy that unau- thorized absence from work for three consecutive days would result in termination of employment. On March 14, 1985, the District had in effect an interim written guideline, stating: Any employee who fails to report to work for three (3) consecutive working days without notifying the division office or fails to report to work after a leave of absence has expired or after the leave has been disap- proved, revoked, or cancelled will automati- cally be considered to have resigned his/her employment with the District, barring the supervisors consideration of extenuating circumstances. (P-15,P-18, Section C.7.) This interim guideline was ultimately adopted as a rule, effective April 7, 1985. The District policy in effect prior to the adoption of the interim guideline on February 1, 1985, had a similar provision: Any employee who fails to report to work for three (3) full consecutive working days without notifying the District may be considered to have abandoned the position. (P-15,P-16,P-17) In implementing this long-standing policy, the District routinely terminated the employment of employees who failed to report to work for three consecutive days. The revised (interim and final) policy contains an exception for "extenuating circumstances," which is reasonably interpreted by the District to cover situations where a sudden emergency or physical impairment prevents an employee from reporting to work. In any event, the employee was still expected to telephone the District, except where prevented by a physical impairment. (P- l9,P-20,P-21,P-22, P-23,P-24,P-26 Testimony of Chapman Thomas) The District uniformly requires adherence to attendance and leave regulations throughout its work force. At its West Palm Beach Field Station, which is responsible for maintaining District projects in the West Palm Beach area, em- ployees are routinely given written notices of any lateness in reporting to work, even if only a few minutes. Repeated tardiness or other cumulative infractions of the District's attendance and leave regulations, which do not involve a failure to report to work for three consecutive days, have also resulted in discharge. It is also a common District practice to deny leave requests when work duties require an employee or supervisor to be at work. (P-25, P-27, P-29, P-31; Testimony of Thomas; Chapman) Respondent participated in the development of the revised Corrective Action Policy. Several meetings were held among the employees of his division, wherein the employees were given an opportunity to comment on various aspects of the proposed policy. Copies of the policy were distributed to the employees of his division prior to February 1, 1985, when it became effective as an interim guideline. (Testimony of Chapman; Braun; DuBois) Respondent's acting supervisor, Mr. Brannen, did not act in a retaliatory manner against Respondent in terminating his employment for failure to report to work for three consecutive days. On the contrary, on two prior occasions, Mr. Brannen had refrained from disciplining Respondent for violating the Attendance and Leave Policy. He valued Repondent's capabilities and long-term service to the District, and went to considerable lengths to accommodate him. Respondent was not in any way impeded by Petitioner in his attempt to seek legal counsel. He was able to confer with six attorneys during his leave of absence. (Testimony of Respondent)
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That Respondent be deemed to have abandoned his employment (by failing to report to work for three consecutive working days, without authorized leave or extenuating circumstances) and his employment be thereby terminated effective 5:00 p.m. on March 13, 1985. DONE and ORDERED this 6th day of December, 1985, in Tallahassee, Florida. R. L. CALEEN, 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 6th day of December, 1985.
