Findings Of Fact Petitioner, Harold Mayo, was employed by Respondent in March, 1987, through December 1, 1987. He has difficulty in controlling his emotions. He experiences rapid changes in mood. He has been diagnosed as suffering from a variety of mental disorders all of which have depression and rapid mood changes as part of their symptomatology. He often feels threatened by stressful situations, and sometimes responds to such situations by losing control of himself and crying as well as sometimes withdrawing from human contact. The Respondent, Advocacy Center for Persons With Disabilities, Inc., ("Center") is a private, non-profit organization which receives federal funds in order to provide advocacy for persons with disabilities. The Center has existed in its present, private status since October 1, 1988. Prior to October 1, 1988, the Center was a public agency within the Governor's office known as the Governor's Commission on Advocacy for Persons With Disabilities ("Commission"). The Commission was established in 1977, by executive order of the Governor. Since its creation, the Executive Director of the Commission (now the Center) has been Mr. Jon Rossman. Mr. Rossman is an attorney. Prior to becoming Executive Director of the Commission, Mr. Rossman worked as a staff attorney for the Association of Retarded Persons. The Center provides legal assistance to handicapped individuals, to ensure that they receive appropriate treatment and services by agencies designed to serve them. Specifically, the Center provides representation and advocacy under three programs: one program is designed to represent individuals with certain developmental disabilities defined by Congress. A second program is designed to represent individuals who are recipients of, or applicants for, vocational rehabilitation services from the state. A third program, the Mental Illness Protection and Advocacy ("MIP&A") program, is constituted to provide representation for mentally ill persons. The Center employs between 20 and 30 individuals. Each of the three programs administered by the Center is headed by a program director. The Center employs approximately six or seven attorneys, and several non-lawyer client "advocates." These jobs are supported by secretarial and clerical staff. Mr. Mayo had previously identified himself to Mr. Rossman as a former mental patient at a mental hospital, and therefore, as a "consumer" of mental health services. Mr. Mayo had indicated that he was interested in employment with the Center and in March 1987, Mr. Rossman offered employment in an OPS position to Mr. Mayo at the Commission. Prior to his employment Mr. Mayo had sought the Commission's assistance in dealing with the Division of Vocational Rehabilitation of HRS. At the time Mr. Rossman offered employment to Mr. Mayo, Mr. Rossman was aware that the Division of Vocational Rehabilitation had determined that Mr. Mayo was "not employable." Nevertheless, aware of this determination and of Mr. Mayo's status as a mental health consumer, Mr. Rossman offered Mr. Mayo employment and created an OPS position for him at the Commission. Mr. Mayo began his OPS employment with the Center on March 30, 1987. Mr. Rossman employed Mr. Mayo to assist the Center on two specific projects: a. to review applications which had been received by the Center for membership on an advisory committee; and b. to assist in organizing a conference to be sponsored by the Florida Mental Health Advocates Network. He was not hired to be a client-advocate and his OPS position did not include those duties. Mr. Mayo was assigned a space in a library/conference room in which to work. Mr. Mayo was only required to work as long as he felt able and comfortable in so doing; and was allowed to leave the office any time he felt threatened, to go home if he wanted, to talk to other employees and Mr. Rossman, to go outside and walk around in the parking lot, and to take breaks as he felt necessary when he experienced stress. He would sometimes lie on the floor and cry prior to getting back to work. There were times when Mr. Mayo took days off after experiencing a particularly emotional workday. Mr. Rossman spent entire days and afternoons talking things out with Mr. Mayo, walking around the office complex, and discussing his employment with him. These sessions occurred both in Mr. Rossman's office and in Mr. Mayo's. In short Mr. Rossman and other Center employees made a genuine, wholehearted effort to work with Mr. Mayo and went out of their way to accommodate him. There was absolutely no intent to unlawfully discriminate against Respondent due to his mental illness. In fact, the opposite was shown by the evidence. Mr. Rossman had a genuine desire that Respondent succeed as an employee. On two separate occasions, Mr. Rossman called Mr. Mayo's wife, concerned due to Mr. Mayo's depression and behavior, and expressed his concern and worry about Mr. Mayo's welfare to Mr. Mayo's wife. The contact on Mr. Rossman's part was a simple gesture of human concern for not only an employee but for a person who Mr. Rossman was very interested in his well-being. Instead Mr. Mayo took great umbrage at Mr. Rossman contacting his wife. He assumed that such contact was an affront to him and was treating him as if he could not take care of himself. On more than one occasion, Mr. Mayo tendered his resignation to Mr. Rossman. Mr. Rossman refused to accept the resignations. On several occasions, Mr. Rossman asked Mr. Mayo if Mr. Mayo would mind Mr. Rossman's speaking to Mr. Mayo's psychiatrist, in an effort to get his psychiatrist's opinions and suggestions on what Mr. Rossman could do to make Mr. Mayo's employment experience successful. On these occasions, Mr. Mayo responded that he was insulted by the request, and did not wish Mr. Rossman to contact his psychiatrist. Again, Mr. Mayo's over- sensitivity to attempts to gain insight into his handicap interfered with his ability to perceive the true intent of his employer in making such a request. Mr. Rossman did not contact Respondent' s psychiatrist. 1/ During his employment, Mr. Mayo frequently overstepped his bounds and overstated his position. This included contacting and writing letters to various persons and agencies, writing letters to the editor of publications, contacting "Nightline," and commenting on news articles, either on Commission letterhead or while identifying himself as an employee of the Commission. Mr. Mayo spent Commission time engaged in advocacy of his personal views which was not within the duties of the OPS position for which he had been hired. In April 1987, Mr. Mayo advised Mr. Rossman of his desire to be the Director of the MIP&A program, and further advised Mr. Rossman of his view that it was very important that the Director's position "should be occupied by a consumer, client or survivor." Mr. Rossman began to consider another individual, Kathleen Regan, for the position of Director of the MIP&A program.2/ Mr. Rossman sought Mr. Mayo's views on the matter. Mr. Mayo expressed his opinion that he thought Ms. Regan was incompetent for the position since she was a mental health professional and a middle management employee at HRS, rather than a consumer. Mr. Mayo told Mr. Rossman of a series of concerns he had should there be "such an incompetent source" running the program. He predicted, "it would all be downhill from now on." Ms. Regan was hired as the MIP&A Program Director effective August 1, 1987. As MIP&A Program Director, Ms. Regan would be Mr. Mayo's direct supervisor. At the time, Ms. Regan began, Mr. Rossman communicated to Ms. Regan that he strongly desired to see Mr. Mayo succeed in his employment at the Commission. He asked for her assurance that she would cooperate in that effort. She gave such an assurance. As the first director of the MIP&A program, Ms. Regan was responsible for developing program priorities, and developing a structure for the MIP&A program. Ms. Regan found that she had a number of people who had input into the development of such priorities and structure, including the Commission's Board of Directors, the Executive Director, the 24 members of the advisory committee, and Mr. Mayo. Ms. Regan attempted to integrate all that input into decisions on the direction and structure of the program. Ms. Regan found it difficult to integrate Mr. Mayo's own strong personal convictions about priorities and structure, but attempted to do so. Mr. Mayo and Ms. Regan had an extremely difficult time in their working relationship. As an example of the problems between Mr. Mayo and Ms. Regan, after it was agreed that they would meet for one-half hour, twice each week, to discuss Mr. Mayo's work, Mr. Mayo submitted a nine-item agenda for the first meeting. Ms. Regan, feeling that one-half hour was insufficient time to discuss so many items, asked Mr. Mayo if he would select two of the items for discussion. Mr. Mayo refused. The following day, Mr. Mayo again attempted to address the entire agenda, refused to select two items for discussion, and told Ms. Regan that he would not "play by her rules." These and subsequent meetings deteriorated,3/ and communications between Mr. Mayo and Ms. Regan broke down. Mr. Mayo told Ms. Regan that he did not consider her to be an advocate, but a "badvocate." Mr. Mayo would undertake work activities not assigned to him without first discussing them with Ms. Regan. On a number of occasions, Mr. Mayo would engage in some such activity, embarrassing Ms. Regan when she would get a call or communication from persons outside the Commission inquiring about Mr. Mayo's conduct, and she would be entirely unaware of his activities. Mr. Mayo and Ms. Regan experienced difficulties when Mr. Mayo sent out personal correspondence advocating personal views on Advocacy Center letterhead. This included correspondence sent by Mr. Mayo to Mr. Allen Tedder, Executive Director of the Mental Health Association of Florida. At least one such letter was sent on Commission letterhead even though Ms. Regan had specifically instructed Mr. Mayo to have the letter redrafted on non-Commission letterhead. Mr. Mayo and Ms. Regan had difficulties when Mr. Mayo refused to acknowledge that Ms. Regan had any right to approve or disapprove his travel requests. Part of Ms. Regan's supervisory duties was to review such travel requests. On another occasion, Mr. Mayo refused to submit his time sheets to Ms. Regan for approval. Again, part of Ms. Regan's supervisory duties was to review and approve employee time sheets. Likewise, when Ms. Regan told Mr. Mayo that he needed to route certain documents through her for signature, Mr. Mayo made an obscene gesture to Ms. Regan three times in the course of the morning. Ms. Regan told Mr. Mayo that his conduct constituted insubordination. His response was, "Fuck you." A frequent issue between Mr. Mayo and Ms. Regan was the issue of "partnership." Mr. Mayo asserted that he wanted to be viewed as an equal. Whenever Ms. Regan made a decision he didn't agree with, Mr. Mayo complained that she was violating her commitment to work with him, and was excluding him from the decision-making process. Ms. Regan received complaints from members of the advisory committee about Mr. Mayo. She also received verbal complaints from Martha Larson, Administrator of the hospital program at HRS. Ms. Regan heard from at least one outsider that Mr. Mayo was advocating against her as the program director. Ms. Regan reported these problems to Mr. Rossman. They met frequently in an effort to determine how best to resolve these difficulties. During his employment, people with whom Mr. Mayo had contact, outside the Center, complained directly to Mr. Rossman about Mr. Mayo's behavior and conduct. Many of these complaints were discounted by Mr. Rossman, who frequently defended Mr. Mayo against accusations being made about him. Inside the office, Mr. Rossman also received complaints about Mr. Mayo. There were complaints from other employees about difficulties working with Mr. Mayo, about shouting matches, about Mr. Mayo going through mail, about telephone calls he was making, and about representations made by Mr. Mayo outside of the office, regarding office policy. Mr. Mayo went directly to Mr. Rossman with his own complaints about Ms. Regan. At first, Mr. Rossman told Mr. Mayo that he did not want to get involved, and that Mr. Mayo and Ms. Regan should attempt to work the problems out themselves. However, the problems between Ms. Regan and Mr. Mayo worsened. Mr. Mayo repeatedly asked Mr. Rossman to take him out from under Ms. Regan's supervision. On September 9, Mr. Mayo submitted a written resignation in which he stated that he didn't feel his presence would serve any purpose "without direct involvement in policy matters." Mr. Rossman refused to accept Mr. Mayo's resignation. Instead, however, he agreed to Mr. Mayo's request that he (Mayo) not work under Ms. Regan's supervision. Once again, Mr. Mayo reported directly to Mr. Rossman. By September 9, the Governor had ordered that the Commission would become a private not-for-profit corporation effective October 1. Mr. Rossman was extremely busy making preparations for this transition and did not have the time to give Mr. Mayo as much individual attention as he had previously. The Commission's offices at that point were on two floors, Ms. Regan's office was on the first floor, and Mr. Rossman's office was on the second floor. This period was one of transition, and eventually, all the Center's offices were consolidated on the second floor. During the transition period, the office was very crowded. Mr. Rossman shared a corner of his office with his administrative assistant. Two lawyers shared the conference table at which Mr. Mayo had previously worked. Mr. Mayo was moved to a work location in an alcove outside Mr. Rossman's office on the second floor. When Mr. Mayo expressed concern about his ability to make the move, everyone in the office encouraged him, telling him that he was capable of making the move. Mr. Mayo made an attempt to change office locations. The new location did not work very well because Mr. Mayo felt exposed to other human beings. After September 9, Mr. Mayo continued to report to work each day, and was paid for a full eight hours. During this time Mr. Mayo invented work to do since Mr. Rossman did not have enough work to keep him busy. Following Mr. Mayo's being removed from Ms. Regan's supervision, Mr. Mayo continued to respond to matters that would be properly directed to Ms. Regan. He made calls about the MIP&A program around the state, criticizing the program and Ms. Regan, and again asserting his beliefs that the Center made a bad decision in employing her. As one example, Mr. Mayo, without authorization, contacted people to attend a consumer conference and invited a number of people to come on scholarship. Scholarship means that the Advocacy Center would pay that individual's expenses. No one at the Center (other than Mr. Mayo) had authorized the reimbursement for their expenses. A number of such people arrived without the registrar having any advance notice that they would attend. On another occasion, Mr. Mayo wanted certain individuals to be invited to attend a meeting between some of the staff and some of the members of the Board. Mr. Rossman advised Mr. Mayo that those individuals did not need to be involved. Nevertheless, Mr. Mayo insisted that the meeting was covered by the Sunshine Act, and that 11 members of the public were entitled to attend the meeting. On that basis, without asking permission, Mr. Mayo telephoned members of the advisory committee and invited them to this meeting. Since Mr. Mayo had been unable to work directly for the MIP&A program director, Mr. Rossman asked Mr. Mayo to prepare a job description for his position.4/ Mr. Rossman asked Mr. Mayo to advise him on how Mr. Mayo felt that he could be of use to the Advocacy Center. Mr. Mayo responded by typing out Respondent's Exhibit No. 6, asserting that he should be able "to advocate as a Consumer Consultant in whatever direction I choose (emphasis added)," and "as a Consumer Consultant to be kept up to date on all the workings of the MIP&A and to be involved as a consultant in that work." Following September 9, Mr. Rossman assigned Mr. Mayo the task of rewriting a report or contract which had been prepared by Ms. Regan. Mr. Mayo refused the assignment because of his view that it was "grossly unethical" to rework another person's work product. Although he refused to work on it, Mr. Mayo objected that Mr. Rossman "had refused to allow consumers any part in writing the contract and I could not speak for all consumers . . ." Shortly before October 8, 1987, Mr. Rossman was contacted by Allen Tedder, Executive Director of the Florida Mental Health Association, with a complaint about Mr. Mayo. Mr. Rossman replied to Mr. Tedder by letter dated October 8, 1987 stating that, as a mental health consumer, Mr. Mayo "apparently has less control over his personal feelings than might otherwise be expected," and further, that Mr. Mayo had undoubtedly "let his strong beliefs get ahead of him at times, overstating his position." Mr. Mayo was offended by Mr. Rossman's October 8th letter because of his view that while he had the right to identify himself to others as a person with difficulty controlling his emotions, Mr. Rossman, as a professional, had no such right. Mr. Mayo felt so "demeaned" by the letter that he cried uncontrollably, left the office, and spent the rest of the afternoon crying on the floor at his doctor's office. On October 21, Mr. Mayo left a copy of a memorandum from him to Dr. Schuchts, his psychiatrist, on the desks of both Mr. Rossman and Ms. Regan. In this memorandum, Mr. Mayo complained that he, as a consumer of mental health services, was being excluded from decision-making at the Center, and criticized advocates "who maintain [they] can speak for us." Outlining his opinions in his October 21 memorandum to Dr. Schuchts, Mr. Mayo listed as one of them: "To continue to disobey Jon and act upon my conscience. To attend meetings for which he refuses to "empower consumers and to openly submit reports from those meetings to him." Shortly before October 28, Mr. Gene Padgett, a close friend of Mr. Mayo's and a personal advisor to him, met Mr. Rossman for lunch. At lunch, they discussed Mr. Mayo's status, and Mr. Padgett encouraged Mr. Rossman to give Mr. Mayo a very definite set of guidelines within which to operate. On October 29, Mr. Rossman issued to Mr. Mayo a memorandum dated the previous day. The memorandum of October 28 began with a statement of the problems which had occurred and which Mr. Rossman felt required the setting forth of specific guidelines and limitations for Mr. Mayo's subsequent work activities. The memorandum then set forth specific assignments and guidelines for continued employment. The conditions were reasonable and nondiscriminatory. Mr. Rossman advised Mr. Mayo that he was expected to agree to the conditions if he was going to continue working for the Advocacy Center. Mr. Rossman's purpose in giving Mr. Mayo the memorandum of October 28 was an attempt to salvage Mr. Mayo's employment. By that time, Mr. Rossman had become convinced that excess independence and insufficient direction might be contributing to the problems with Mr. Mayo's employment. He believed that setting forth strict assignments and guidelines, as suggested by Mr. Padgett, might result in a productive work experience for Mr. Mayo. On October 29, Mr. Mayo was given the memorandum and told he must agree to its terms. Mr. Rossman had arranged for two other employees to witness the events of the meeting. Mr. Mayo asked if he could have a copy of the memorandum and if he could have until November 3 to take the document to his attorney. Mr. Rossman agreed to the request. Mr. Mayo left the office and did not return to work. Nothing in the meeting demonstrates any discriminatory purpose or intent on the part of the Center or Mr. Rossman. Mr. Mayo's claim that the presence of the two other employees was intimidating and therefore discriminatory is simply not born out by later events and Mr. Mayo's own actions. On November 10, Mr. Rossman received a letter from Mr. Richard Powers, a Tallahassee attorney, on behalf of Mr. Mayo. Mr. Power's letter indicated no willingness on Mr. Mayo's part to accept the conditions set out in the October 28 memorandum. The letter suggested a meeting to discuss the subject. On November 18, Mr. Rossman, Mr. Mayo, Mr. Parker Thompson (Board Member), and Mr. Powers met at Mr. Power's office. Mr. Mayo and his attorney insisted that Mr. Mayo be allowed to return to work without conditions. Mr. Mayo's return without conditions addressing the problems in the performance of his job was not acceptable to the center. On November 25, 1987, Mr. Rossman wrote to Mr. Powers, confirming Mr. Rossman's understanding that Mr. Mayo was insisting on a "return to work without any conditions," and reiterating Mr. Rossman's own position that Mr. Mayo could return to work "under conditions designed to address problems in his performance." Mr. Rossman agreed in the letter to hold Mr. Mayo's position open until December 1, 1987. Mr. Rossman did not hear further from Mr. Mayo or his attorney prior to, or following December 1, 1987. The only conclusion that can be drawn from Mr. Mayo's action or inaction is that he quit his employment with the Center when he determined that he was not going to be allowed to do as he pleased in his employment. In January 1988, following Mr. Mayo's departure, the Advocacy Center hired an individual, to fill the position of client advocate for the MIP&A program. The individual hired has a history of mental illness -- specifically, bipolar depression. Other than Mr. Mayo, the Commission/Center has employed a number of individuals with a variety of handicaps. The former Program Director for the Developmentally Disabled Program was a person with cerebral palsy who chose not to continue in employment with the Commission when it converted to private status. The Center's CAP Program Director is a wheelchair user, due to childhood polio. She has her desk up on blocks, high enough to accommodate her wheelchair. One of the Center's attorneys has epilepsy. A CAP client advocate for the Center is blind. Another Center employee has a hearing impairment. During his employment, Mr. Mayo was not able to accept supervision and was unable to work in the structured environment at the Center. There was no substantial evidence presented which establishes a nexus between Mr. Mayo's shortcomings and his mental illness. Without such evidence it is difficult to say what role Mr. Mayo's handicap played in his demise. A handicap does not entitle the individual to accommodation in areas unrelated to that handicap. Therefore, the evidence did not demonstrate any discrimination by the Center due to that handicap.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Petitioner's Petition be dismissed. DONE and ENTERED this 6th day of December, 1989, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 6th day of December, 1989.
The Issue Whether the Flagler County School Board discriminated against Petitioner by failing to hire Petitioner based on his disability.
Findings Of Fact Respondent is the local government agency responsible for oversight of the public schools of Flagler County, Florida. Petitioner applied for two positions with the School Board. In December 2009, Petitioner applied for a job opening as a bus aide for handicapped students (Transportation Handicapped Aide position). On January 29, 2010, he applied for a lawn maintenance position at Flagler Palm Coast High School (Maintenance/Turf Care Worker position). On February 1, 2010, Petitioner received a letter from the School Board thanking him for his interest in the Transportation Handicapped Aide position, but informing him that the School Board had selected another applicant. On or about May 31, 2010, Petitioner received another rejection letter from the School Board, informing him that he had not been hired for the Maintenance/Turf Care position. Petitioner alleges that Respondent did not hire him for either position because he is “qualified deaf.” Prior to actually applying for the two positions, as part of the application process, Petitioner completed an on-line employment application with the School Board. Petitioner listed eight previous positions on his on-line application, including: dishwasher, assembler, part-time stacker, dock worker, warehouse/driver, part-time delivery driver, warehouse associate, and warehouse forklift operator. The previous positions listed on Petitioner?s on-line application did not involve working with children or lawn care. At the final hearing, Petitioner testified that he had been around deaf and blind students while attending the Florida School for Deaf and Blind. He also testified that he thought he could learn the lawn care maintenance position while on the job. Petitioner conceded, however, that his prior employment positions and experience did not involve working with children or lawn care maintenance. Qualifications the School Board required for the Transportation Handicapped Aide position included prior experience or training in the care of children, as well as knowledge of and ability to use crisis intervention and prevention techniques, CPR, and first aid. The Maintenance/Turf Care Worker position was not a beginning position where qualifications could be met by on-the- job training. Rather, the position required a state-certified pest control operator's license for lawn and ornamental plants or the equivalent, and a working knowledge of the rules and regulations on safe handling and application of pesticides, herbicides, and fertilizers. The position also required knowledge of athletic field dimensions and striping, and the ability to maintain a commercial irrigation system. Review of Petitioner's on-line application, in light of the qualifications for the two positions sought, reveals that Petitioner was not qualified for either position. In contrast, the successful applicants who were hired for the two positions possessed the required qualifications and experience. Ms. Parrella testified that, as secretary to the School Board's Director of Human Relations, it was her responsibility to monitor the applications for employment submitted for the two positions for which Petitioner applied. According to Ms. Parrella, Petitioner was not hired because he did not possess the required qualifications for the positions. Ms. Parrella further testified that the School Board would not discriminate against a person who was deaf if he had the qualifications for the position. She further explained that Petitioner's handicap or disability played no role in the decision not to hire him for the two positions. Ms. Parrella's testimony is credited. Petitioner testified that, at the time he filed the Complaint, he suspected that he had not been hired by the School Board because of his disability because he could not think of any other reason he was not hired. He admitted, however, that he had no personal knowledge as to the reasons why he was not hired. Petitioner also admitted during the final hearing that he did not list or possess all of the certifications or qualifications required for either of the two positions. In sum, Petitioner did not show that the School Board discriminated against him by failing to hire him because of his disability.
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 the Complaint and Petition for Relief. DONE AND ENTERED this 17th day of May, 2011, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of May, 2011.
The Issue The issue is whether Respondent engaged in the practice of discrimination against Petitioner when terminating him from employment as a firefighter due to a medical condition.
Findings Of Fact Petitioner, Jonathan Race, was employed by Respondent, Orange County Fire Rescue Department, since January 1989, and worked in the Operations Division as a Lieutenant/EMS Supervisor. In this role, he managed, coordinated, and performed firefighting and emergency rescue services. In the mid-1990s, Petitioner was diagnosed with atrial fibrillation which ultimately resulted, in July 2001, in his undergoing an open heart surgical procedure known as the "MAZE" procedure. Following the open heart surgery, Petitioner had a pacemaker installed in August 2001. Petitioner's cardiologist from 1997 to January, 2005, was Arnold Einhorn, M.D. Barry Portnoy, M.D., is a physician under contract with Orange County to perform annual physical examinations for members of the Orange County Fire Rescue Department. While Dr. Einhorn served as Petitioner's cardiologist, he had periodic conversations with Dr. Portnoy concerning Petitioner's cardiac condition. On May 20, 2003, Dr. Einhorn wrote a letter to Dr. Portnoy in which he stated that Petitioner, "continues to be on medical therapy with beta blockers and Digoxin and his underlying heart rate is in the 30s and this making him dependent on the pacemaker approximately 80% of the time." Dr. Einhorn concluded at that time that Petitioner needed to continue with his medications and use of the pacemaker. Petitioner, concluded, Dr. Einhorn, "is dependent on the pacemaker." On January 16, 2004, Dr. Portnoy conducted an annual physical for Petitioner. On February 6, 2004, Dr. Portnoy stated in his evaluation of Petitioner: "Classification deferred pending additional information. . . . Employee may continue in his/her present duties for no more than 30 days while awaiting further evaluation." On June 4, 2004, Dr. Portnoy completed his evaluation of Petitioner, imposing a restriction of "No functioning as a member of a team or independently where sudden incapacitation could result in harm to himself, risk to others, or mission failure." Dr. Portnoy placed Petitioner on light duty, which resulted in his assignment to an office job at fire headquarters. Respondent's policy dictates that, when an employee is placed on light duty, a medical review is conducted. After being placed on restricted or light duty, a medical review of Petitioner was commenced in June 2004. Respondent's medical review committee requested that Petitioner obtain from his cardiologist, Dr. Einhorn, information concerning Petitioner's cardiac condition. On January 5, 2005, Dr. Einhorn, at Petitioner's request, sent a letter to Dr. Portnoy in which he stated, in part, "We have been trying to wean the patient off beta blockers and Digoxin to see if the patient is still pacemaker dependent. He is now not on any Digoxin and Toprol and interrogation of his pacemaker revealed 30% atrial paced with 16 runs of atrial fibrillation." Based upon the information received from Dr. Einhorn by Dr. Portnoy, Respondent sent Petitioner a letter dated February 17, 2005, which stated that Respondent had determined there was a preponderance of evidence that restrictions placed on Petitioner by Dr. Portnoy would continue indefinitely and that Petitioner would not be able to return to his position in the Operations Division as Lieutenant/EMS Supervisor. Respondent concluded that under Article 34.11 of the Collective Bargaining Agreement, Petitioner would be medically separated from his employment with the County, effective March 26, 2005, at 19:30 hours. While on light office duty, Petitioner was given additional time to pursue other jobs with Orange County. Petitioner did not find another job with Orange County. On March 10, 2005, after Petitioner had received the February 17 letter from Respondent, Amish Parikh, M.D., wrote a letter "To Whom It May Concern", in which he stated that Petitioner "is now pacing only 0.8% of the time and it is not considered pacemaker-dependent. I believe the pacemaker is not a limiting factor in his ability to perform his job and he should be permitted to return to full duty without restrictions." Nothing in this letter makes reference to any medications Petitioner would be required to take in the future. On April 15, 2005, after Petitioner had been terminated from his employment with Respondent, Petitioner was examined by another cardiologist, Sunil M. Kakkar, M.D., who concluded that Petitioner was not pacemaker dependent and could return to full duties with Respondent. Neither Dr. Parikh nor Dr. Kakkar testified at the hearing. Their written reports appear to be based upon one visit by Petitioner with each of them. On March 23, 2005, Dr. Portnoy reviewed the March 10 letter from Dr. Parikh. Dr. Portnoy did not change his determination that Petitioner was pacemaker dependent after his review of Dr. Parikh's letter. Dr. Portnoy did not lift the restrictions he had imposed on Petitioner. At the time of hearing, Petitioner continued to take medications, both aspirin and Toprol, for his cardiac condition. David Hart worked as a firefighter with Respondent from March 16, 1981, through his voluntary retirement, with the rank of Engineer, on February 10, 2005. Mr. Hart was diagnosed with atrial fibrillation in 1992 and was treated for the condition with medications for the ensuing six years. Mr. Hart had a pacemaker implanted in October of 1998, and had the pacemaker in place through his retirement. While still employed by Respondent, Mr. Hart's private cardiologist, Dr. Filart, provided Respondent and Dr. Portnoy with information concerning the pacemaker, and determined that Mr. Hart was not pacemaker dependent. Based upon Dr. Filart's determination that Mr. Hart was not pacemaker dependent, Mr. Hart was not removed from duty or placed on restricted duty due to his pacemaker. Mr. Hart agreed that the decision with respect to pacemaker dependency should be made by the patient's cardiologist. Petitioner claims that he was discriminated against by Respondent due to disparate treatment between himself and David Hart. He alleges he is not pacemaker dependent, is similar to Mr. Hart, and, therefore, should not have been medically separated from his employment with Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a Final Order finding that the Respondent did not discriminate against Petitioner and dismissing the Petition for Relief. DONE AND ENTERED this 11th day of May, 2006, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 2006. COPIES FURNISHED: Denise Crawford, Agency Clerk Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Jonathan A. Race 1081 Dean Street St. Cloud, Florida 34771 Gary M. Glassman, Esquire Orange County Attorney's Office Litigation Section 435 North Orange Avenue, 3rd Floor Orlando, Florida 32801 Cecil Howard, General Counsel Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue to be resolved in this proceeding concerns whether the Respondent discriminated against the Petitioner because of his alleged disability.
Findings Of Fact The Petitioner, Charles H. Miller, was employed by the Respondent, Department of Transportation, for approximately 15 years. In October 1999, Mr. Miller injured his ankle in a work-related accident. He experienced chronic pain and mobility limitations as a result of the accident and continually received medication and psychological and/or physical therapy to help relieve the symptoms of his condition. Mr. Miller wore a brace on his injured foot and took various narcotic pain relievers. On May 2, 2001, Petitioner began seeing Lewis Fabrick, Ph.D., a licensed clinical social worker. Dr. Fabrick determined that Mr. Miller was suffering from depression, anxiety and stress that resulted partly from the pain from the physical injury and partly from the side effects of the medication. However, the Department was not aware of the nature or extent of Mr. Miller's mental or emotional issues. Prior to December 2000, Mr. Miller reported directly to Thomas Malerk, the State Materials Engineer. At that time, Mr. Miller was acting as the data center manager and supervised several other employees. Around November 2000, Mr. Malerk assigned another employee to supervise Mr. Miller and eliminated Mr. Miller's supervisory responsibilities. Mr. Miller's pay and benefits were not affected by this change. Mr. Malerk took this action to correct problems with the data center that had resulted in complaints about Mr. Miller and the data center. Mr. Miller's physical condition was not a factor in Mr. Malerk's decision to change Mr. Miller's job. In December 2000, Mr. Miller complained to the Department's ombudsman that coworkers were making fun of his ankle brace and physical limitation. Mr. Miller alleged that Mr. Malerk had joked about Mr. Miller needing a boot on the other foot to match and that the personnel officer, John Cooper, would pretend to "draw like a cowboy" in a manner that ridiculed Mr. Miller's condition. Mr. Miller also alleged that another co-worker, Gale Page, was harassing him by making fun of his physical limitations. Neither Mr. Cooper or Mr. Page had any supervisory responsibility over Mr. Miller. After receiving Mr. Miller's complaint, the ombudsman contacted Mr. Cooper and Mr. Malerk to inform them of Mr. Miller's concern. At approximately the same time, Mr. Miller also told Mr. Cooper that he was being harassed by Mr. Page, Mr. Malerk, and Mr. Cooper. When Mr. Cooper asked Mr. Miller to specifically identify the harassment that had occurred, Mr. Miller only specifically reported that Mr. Page had made fun of his walk or his leg. Mr. Cooper then informed Mr. Malerk of Mr. Miller's complaint and approached Mr. Page. Mr. Cooper told Mr. Page that he should refrain from making comments about Mr. Miller's condition. When Mr. Malerk learned of Mr. Page's remark to Mr. Miller, he reprimanded Mr. Page and requested that he apologize or otherwise clear the matter. Mr. Malerk also discussed the matter with Mr. Miller. Mr. Malerk apologized to Mr. Miller for anything he might have said that was insensitive and asked Mr. Miller if he had made any inappropriate remarks. Mr. Miller told Mr. Malerk that they did not have a problem and that he considered the matter with Mr. Page closed. Other than the incident with Mr. Page, and the accompanying accusations involving Mr. Malerk and Mr. Cooper, neither Mr. Cooper or Mr. Malerk had any reason to believe that any Department employee might be harassing Mr. Miller or making jokes about his injury or condition. Contrary to Mr. Miller's claim, the evidence does not indicate that either Mr. Malerk or Mr. Cooper even made fun of Mr. Miller's condition. Mr. Miller and Mr. Malerk have known each other since 1997 and were friendly with each other. On May 22, 2001, the Department dismissed Mr. Miller. The decision to dismiss Mr. Miller was based upon a number of violations of the Department's conduct standards, including Mr. Miller's insubordination, absence without authorized leave, display of an uncooperative or antagonistic attitude, and a violent outburst by Mr. Miller on May 21, 2001, when he was advised of the Department's intention to dismiss him. The issues relating to Mr. Miller's dismissal were fully litigated in a proceeding before the Public Employees Relations Commission, which culminated in a Recommended Order and Final Order upholding the Department's decision to dismiss Mr. Miller for violation of the Department's conduct standards. Mr. Malerk was responsible for requesting Mr. Miller's dismissal. Mr. Malerk requested Mr. Miller's dismissal for the violations of the Department's conduct standards that were included in the dismissal letter and was not motivated to request his dismissal in any part by Mr. Miller's physical problems.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore,
The Issue Whether Petitioner has a developmental disability that makes him eligible to receive services from the Department of Children and Family Services pursuant to Section 393.061, Florida Statutes, et seq.
Findings Of Fact Based upon the testimony and evidence received at the hearing, the following findings are made: Petitioner was born in July 1993. At the time of the application for services at issue in this proceeding and at time of the hearing, Petitioner was eight years old. Petitioner's development from birth to age two was generally normal. He was walking by nine months and spoke his first words at a normal age. However, at age two Petitioner could only speak approximately 10 words and around that time he stopped speaking altogether. Petitioner communicated his wants and needs through whining and grunting. He became extremely frustrated when he was not understood. Ms. Watson became concerned about Petitioner's lack of speech, and she took Petitioner to his pediatrician. She was told that nothing was wrong with Petitioner. Around Petitioner's third birthday, Ms. Watson was told by a friend who was a nurse that Petitioner appeared to be autistic. Autistic disorder, or autism, is a type of a pervasive development disorder (PDD). As explained in the DSM-IV, "[t]he essential features of Autistic Disorder are the presence of markedly abnormal or impaired development in social interaction and communication and a markedly restricted repertoire of activity and interests." (emphasis supplied). As used in this context, "markedly" means intense and interfering to a degree that it cannot be overcome. There are other PDDs, such as Asperger's Disorder and Rett's Disorder, and each PDD has its own characteristics. A PDD which does not meet the criteria for a specific disorder, either because all of the criteria are not present or because they do not occur at a "marked" level, is diagnosed as a PDD not otherwise specified (PDD-NOS). Based upon her nurse friend's comment and her own review of literature describing autism, Ms. Watson took Petitioner to Dr. Frank Lopez, a psychiatrist, for evaluation. Dr. Lopez diagnosed Petitioner with autism and informed Ms. Watson that Petitioner would likely end up in an institution because of the disorder. Dr. Lopez did not testify at the hearing nor was his report proffered. Thus, it is unknown what type of tests, if any, were administered to Petitioner by Dr. Lopez in reaching that diagnosis; and, the factors upon which Dr. Lopez based his diagnosis are also unknown. Accordingly, no weight can be given to Dr. Lopez's diagnosis. Ms. Watson was not satisfied with Dr. Lopez's prognosis so she asked Petitioner's pediatrician to order neurological tests of Petitioner. Ms. Watson then took Petitioner to Dr. Michael Pollack, a pediatric psychiatrist and neurologist, for evaluation of the test results. Dr. Pollack saw Petitioner in November 1996. Petitioner was three years old at the time. Dr. Pollack did not testify at the hearing. However, his report was received into evidence. The report includes Dr. Pollack's "impression that [Petitioner] does have autistic spectrum disorder and that he satisfies the criteria for diagnosis pervasive developmental disorder." That "impression" was based upon a history provided by Ms. Watson (which is consistent with her testimony at the hearing), a physical examination (with nothing abnormal noted), an examination of the neurological tests (with nothing abnormal noted), and an observation of Petitioner. No IQ test was performed. Around the same time, Petitioner applied for and was determined eligible to receive social services. Specifically, Petitioner was accepted into the developmentally delayed preschool program in the Orange County public school system, and he also began to receive Social Security disability income (SSDI) from the federal government. The record does not reflect the eligibility criteria for those programs. Accordingly, the fact that Petitioner was determined to be eligible for those programs is not determinative of his eligibility for developmental services under Chapter 393, Florida Statutes. As part of the review process for SSDI, Petitioner was referred to Dr. Cydney Yerushalmi for evaluation in March 1997. Petitioner was three and one half years old at the time. Dr. Yerushalmi did not diagnose Petitioner as autistic. Instead, Dr. Yerushalmi provisionally diagnosed Petitioner with PDD-NOS along with a possible mixed receptive- expressive language disorder. Dr. Yerushalmi's diagnosis was based upon the history provided to her by Ms. Watson as well as her observations and evaluation of Petitioner, which included the administration of the Wechsler Preschool and Primary Scale of Intelligence-Revised test. Dr. Yerushalmi's report details her observations and evaluation of Petitioner as follows: [Petitioner] vocalized often, and was understandable by this examiner on approximately sixty percent of all occasions. During the session he verbally [requested] food, drinks and preferred toys. During the session, he often referred to this examiner as "honey," a name he often uses with others whose name he does not know. [Petitioner] does not respond to verbal cues consistently, and it is not clear whether this is a problem with receptive language or a "behavior." He very infrequently comes on command and rarely looks at others when directly requested to do so. Usually he ignores others who make requests of him. * * * Initially, [Petitioner] was not cooperative with the formal portion of the evaluation. When requests were made of him, he screamed and refused to participate. Finally, with behavioral procedures which included modeling and access to preferred activity after each response, whether correct or not, some cooperation was obtained. [Petitioner's] behavior interfered with this testing and the results were affected by his noncompliance. Some subtests were not administered; [Petitioner's] behavior was worse when tasks were difficult. Despite these problems, the results are considered to give an accurate picture of [Petitioner's] level of functioning on the behaviors sampled. Dr. Yerushalmi's diagnosis of PDD-NOS means that Petitioner did not meet all of the criteria of any particular PDD, such as autism. In this regard, a diagnosis of PDD-NOS and autism are mutually exclusive. Based upon Dr. Yerushalmi's diagnosis of PDD-NOS, Petitioner was also accepted into the Department's developmental disability program in the "high risk" category. That category is available only to children between the ages of three and five. Once a child reaches the age of five, he or she must be diagnosed with one of the disabilities specified in Section 393.063(12), Florida Statutes -- e.g., autism -- in order to continue to participate in the developmental disability program. The services provided to Petitioner by the developmental disability program were occupational (speech) therapy and behavior modification. After Petitioner turned five and became ineligible to receive developmental disability services in the "high risk" category, he reapplied to the program. The Department again referred Petitioner to Dr. Yerushalmi for evaluation. Dr. Yerushalmi evaluated Petitioner in September 2000. Dr. Yerushalmi saw significant improvement in Petitioner from her evaluation of him in 1997. She attributed this improvement to the early intervention and the dedication of Ms. Watson to Petitioner's therapies. At the evaluation, Petitioner listened to the conversation between Ms. Watson and Dr. Yerushalmi and, at times, interjected appropriate and relevant comments. During her evaluation of Petitioner, Dr. Yerushalmi was able to redirect Petitioner to the task at-hand. She was also able to administer the Wechsler Intelligence Scale for Children - Third Edition (WISC-III) to determine Petitioner's cognitive IQ level. Petitioner's scores on the WISC-III had some scatter, but not as much as would be expected of a child with autism. Indeed, the test showed his verbal skills to be higher than his performance skills. Dr. Yerushalmi did not observe the "marked" behavior and language idiosyncrasies which are typical to autistic children. In this regard, her report concluded: The criteria for Autistic Disorder require "marked" disturbance in social and language areas. [Petitioner] does show some disturbance in these areas according to his mother, but these are not felt to be "marked." He can carry on a conversation. He is alert and aware of his environment to the extent that he notices things in the environment and listens to and participates in conversations. He is functioning in the average range and his verbal scores are significantly higher than his performance scores. He has some communication difficulty, as indicated by his low score on the comprehension subtest of the WISC-III, but it is not "marked." [Petitioner] does not meet the criteria to be classified as "autistic" and does not meet other criteria for inclusion in Developmental Disabilities programs. Based upon her evaluation, Dr. Yerushalmi diagnosed Petitioner with attention deficit/hyperactivity disorder not otherwise specified and obsessive-compulsive traits. Again, she did not diagnose Petitioner with autism. At the time of her evaluation, Dr. Yerushalmi was aware of a diagnosis of autism rendered by Dr. George Shultz in June 2000. Dr. Shultz did not testify at the hearing, but his report was introduced at the hearing by the Department. Dr. Shultz was unable to administer the WISC-III due to Petitioner's "impulsiveness, inability to focus, as well as impairments in [his] social skills." At the hearing, Dr. Yerushalmi opined that Dr. Shultz's inability to administer the WISC-III was the result of Petitioner's learned ability to use his bad behavior to avoid tasks that he does not want to do. This opinion is consistent with the observations in several of the school records introduced by Petitioner at the hearing. Specifically, the May 2002 behavioral assessment of Petitioner (Exhibit P23) concludes that "[i]t is felt that [Petitioner] displays these behaviors to avoid tasks he does not wish to do and to seek attention from teachers/peers." Similarly, the May 2000 occupational therapy report (Exhibit P21) detailed several occasions where Petitioner engaged in "task avoidance" and had "tantrums" when required to do things he did not want to do. Based the diagnosis and recommendation in Dr. Yerushalmi's September 2000 report, the Department denied Petitioner's application for developmental disability services. Petitioner apparently did not seek administrative review of that decision. In October 2001, Petitioner filed another application with the Department for developmental disability services. The Department again solicited Dr. Yerushalmi's recommendation. Dr. Yerushalmi did not reevaluate Petitioner, nor did she write a new report. Instead, she simply "stood by" her September 2000 report. Based upon the diagnosis and recommendation in that report, the Department again denied Petitioner's application for developmental services. This proceeding followed. In addition to the testing and evaluation referred to above, Petitioner has also been evaluated in connection with the exceptional education program at his school. The evaluations were conducted by the school's psychologists. The psychologists did not testify at the hearing, but their evaluation reports were received into evidence. None of the reports diagnose Petitioner as autistic. Indeed, the report dated September 3, 1996 (Exhibit P18), showed that Petitioner had a score of 25.5 on the Childhood Autistic Rating Scale, which is in the non-autistic range. The psychologist who conducted the evaluation noted that Petitioner made "focused eye-contact with this examiner" and concluded that "although [Petitioner] is extremely self-dedicated, and tends to perseverate on certain preferred tasks, he does not appear to meet the eligibility criteria for Autism a[s] outlined by the [DSM-IV] " Another report, dated May 11, 1999 (Exhibit P20), showed that Petitioner had scored in the 99.9th percentile in the "broad reading" area which measures both the ability to read and understand what is being read. A child with autism would not have such a high score because autistic children typically have difficulties in understanding what they are reading. Another report, dated March 24, 2000 (Exhibit P19), included Petitioner's scores on the Gilliam Autism Rating Scale (GARS). An evaluation of Petitioner by his teacher resulted in a score (or "autism quotient") of 98 on the GARS which indicated an "average probability" that Petitioner is autistic. However, an evaluation of Petitioner by Ms. Watson resulted in a score of only 57 on the GARS. Because of the significant variation between the scores, the report concluded that "a definitive diagnosis cannot be made at this time." Petitioner is in an autistic class at his school. His teacher, Amanda Scott, has witnessed numerous "autistic-like" behaviors in Petitioner, such as limited eye contact, limited social interaction with peers, and lack of compassion or awareness of others. Ms. Scott characterized Petitioner as a "text book example" of an autistic child. Ms. Scott is not a psychiatrist or psychologist. Her "diagnosis" of Petitioner is based only upon her observations of Petitioner over the past school year. Petitioner's continued participation in the exceptional education program at his school is not at issue in this proceeding and will be unaffected by the outcome of this proceeding. Petitioner also participates in regular or "main stream" classes at his school. He performs well academically in those classes but sometimes has to be removed because of his behavior problems. Petitioner has seen Dr. Stephen Commins periodically since July 1999 for his behavior problems. Dr. Commins is not a psychiatrist or psychologist; he is a medical doctor with the Division of Behavioral Pediatrics at Nemours Children's Clinic in Orlando. Dr. Commins did not testify at hearing, but the office notes from his evaluations of Petitioner were received into evidence along with a May 23, 2002, letter written by Dr. Commins. Dr. Commins did not diagnosis Petitioner with autism or any other disorder. The May 23, 2002, letter and the office notes simply reference diagnoses made by others and relayed to him by Ms. Watson. The letter states that Petitioner was diagnosed with autism in March 2000 based upon his GARS score, a fact which is not correct. See Finding of Fact 31. Accordingly, the undersigned has not given any weight to Dr. Commins' notes or letter. In addition to seeing Dr. Commins, Petitioner has been a "student" at the University of Central Florida Center for Autism and Related Disabilities since 1999. Petitioner introduced a letter at hearing from the director of the Center. The letter’s description of Petitioner's behavior problems and speech delays is consistent with the testimony of Ms. Watson, Ms. Scott, and Dr. Yerushalmi, as well as the other reports introduced at the hearing. However, the director concludes the letter with her opinion that "[Petitioner's] profile is consistent with the initial diagnosis of autistic disorder made by Dr. Yerushalmi." No weight is given to this opinion because it is based upon the premise that Dr. Yerushalmi diagnosed Petitioner with autism which, as noted above, she did not.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services issue a final order that determines Petitioner ineligible for the developmental disability program and denies his application for services from the program. DONE AND ENTERED this 18th day of July, 2002, in Tallahassee, Leon County, Florida. T. KENT WETHERELL, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of July, 2002.
The Issue The issue in this case is whether Javier Saladrigas, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Threshold Facts Notice has been waived and is not a contested issue herein. (Stipulated). Elisa Saladrigas is the mother and natural guardian of Javier Saladrigas. (Stipulated). She holds a doctorate in psychology, and sometimes will be referred-to herein as "Dr. Saladrigas." Javier was born a live infant on December 14, 2006. Javier weighed at least 2,500 grams at birth and was the product of a single gestation. (Stipulated). Obstetrical services were delivered to Elisa Saladrigas in connection with the delivery of Javier Saladrigas by NICA- participating physicians in Baptist Hospital of Miami, Inc. (Baptist Hospital), which is a licensed hospital in Miami, Florida. (Stipulated). The Timing of Javier's Injury On the date of Javier's birth, Elisa Saladrigas was a 37-year-old G1 with an IVF pregnancy and history of hypothyroidism. On December 14, 2006, at 3:16 p.m., Javier was delivered, full term at 38 weeks and four days gestation, with thick meconium-stained amniotic fluid, following a 15-1/2 hour labor. During labor, Javier's fetal monitor strips showed variable decelerations that progressed to severe decelerations with loss of heart rate variability. Upon delivery, the umbilical cord was looped around Javier's neck. He was floppy, tachypnic (evidencing an increased rate of respiration), and grunting, with a weak respiratory effort and in respiratory distress. He required "vigorous resuscitation" in the delivery room in the form of bag and mask ventilation, oxygen support, oral suctioning, gastric suctioning, tracheal suctioning, and vigorous tactile stimulation. Subsequent to such resuscitation in the delivery room, Javier's Apgars were six at one minute, seven at five minutes, and nine at ten minutes. These scores are within normal limits. At 3:57 p.m., still requiring oxygen support and exhibiting low oxygen saturations, with a working diagnosis of possible sepsis (later confirmed by testing as Group B streptococcus acquired from the mother during labor and/or delivery), hypoglycemia, and respiratory distress, Javier was transferred to Baptist Hospital's newborn nursery. It is significant that Javier's respiratory distress continued even after he achieved acceptable Apgar scores, because case law provides that the statutory period for compensability may encompass an additional "extended period of time when a baby is delivered in a life threatening condition" only if "there are ongoing and continuous efforts of resuscitation," and that "both the incident of oxygen deprivation and the brain injury resulting from the oxygen deprivation must occur in this time period."2/ Newborn nursery examination notes indicate that at 4:30 p.m., Javier's overall status was "critical," with an unstable respiratory rate and unstable blood pressure, and describe his condition as "pale and tachypnic in severe respiratory distress." Based upon the evidence as a whole, particularly by comparison of this entry to other notations made in the record at or about the same time, it is probable that these notes were dictated earlier than 4:30 p.m., and closer in time to Javier's physical admission to the newborn nursery and simply were not dictated or typed until 4:30 p.m. Due to Javier's on-going respiratory distress and other indicators, Neonatologist Paul Fassbach, M.D., transferred Javier from the newborn unit to Baptist Hospital's Neonatal Intensive Care Unit (NICU) for treatment of meconium aspiration syndrome (MAS). At 4:53 p.m., Javier was admitted to the NICU with worsening respiratory distress and poor oxygen saturations. He was given increased respiratory support, including positive pressure ventilation by NCPAP. Javier subsequently was diagnosed with septicemia by group B streptococci (Group B strep sepsis); respiratory distress; and severe MAS, confirmed by X- ray, showing diffuse pulmonary opacities throughout both lungs. MAS occurs when a baby inhales his own feces which have been expelled during labor and/or delivery. These feces are extremely corrosive to the baby's lungs.3/ Javier continued to desaturate, despite continuous resuscitative measures in the NICU, and at 8:52 p.m., he was intubated and placed on a ventilator. Umbilical arterial and venous catheters were surgically inserted to enable closer monitoring of his metabolic and respiratory condition. Javier was administered IV antibiotics for sepsis, glucose for hypoglycemia, nutritional support, dopamine, dobutamine, and epinephrine for low blood pressure, and surfactant medication to improve his lung function, but his condition continued to deteriorate. At 7:21 a.m., on December 15, 2006, Javier suffered the first of two cardiac and respiratory arrests. At 9:04 a.m., December 15, 2006, he arrested a second time, while still being assisted for the first arrest. All of the testifying physicians who had an opinion on the subject agree that, more likely than not, Javier's subsequently-diagnosed brain injury occurred at or about the time of these two "codes" or that the brain injury began to evolve at that point in time and worsened thereafter. Resuscitation at the point of the cardiac arrests took about 40 minutes. Umbilical artery cord blood gas is indicative of whether or not there has been oxygen deprivation at birth, but Javier's umbilical artery cord blood gas was never drawn. Rather, arterial blood gas drawn about four hours after birth, via a heel pinprick, showed a pH of 7.12, with a base excess of minus 12.8, which is acidotic and indicative of some degree of acidosis. When the baby coded approximately 18 hours after birth, the pH was only 6.78, with a base excess of minus 21, which is profoundly acidotic. Together, the blood gases may be read to indicate progressive oxygen deprivation preceding the cardiac arrests. Petitioner presented the testimony of Daniel Castellanos, M.D., a child and adult psychiatrist, who did not opine on timing and causality of Javier's brain injury, and of Nicholas Suite, M.D., a neurologist. Intervenor presented by deposition the testimony of Dr. William Rhine, a neonatologist. Respondent NICA presented the testimony by deposition of Dr. Charles Willis, a board-certified obstetrician, with special competence in maternal-fetal medicine, and of Dr. Michael Duchowny, a pediatric neurologist.4/ Neonatologist Rhine opined that hypoxia (a deficiency of oxygen reaching the tissues of the body, including the brain) resulted in the foregoing blood gas values, which were profoundly acidotic. Obstetrician Willis testified much the same. See infra. The greater weight of the credible medical evidence as a whole, but most notably the testimony of Dr. Rhine, the only neonatologist to testify, Dr. Willis, Dr. Michael Duchowny, a board-certified pediatric neurologist retained by NICA, who performed a "hands-on" neurological examination of Javier on July 15, 2009, and Dr. Nicholas Suite, a neurologist appearing for Petitioner, who examined Javier in September 2010, support a finding that simultaneously or concurrently with the two cardiac arrests in close succession, Javier suffered loss of oxygen to his brain, resulting in physical damage to his brain, which damage subsequently became visible on MRI. That is not to say, however, that some brain damage due to loss of oxygen did not occur during labor and delivery and/or during resuscitation in the delivery room, because the various medical authorities concede that it takes only about six minutes for such brain damage to occur, killing brain tissue. Most particularly, Dr. Duchowny's formal report to NICA read: . . . The records provide evidence of meconium aspiration syndrome and cardiac arrest. As they both occurred in the postnatal period, I believe they are the consequence of factors operating during labor and delivery. Dr. Willis could not quantify the degree of respiratory distress at birth, and opined, without further explanation, that although there may have been some oxygen deprivation to the baby at birth, it did not appear sufficient to meet the HIE standards for hypoxic brain injury. Dr. Willis could not determine from the cold medical records whether the baby had strep B pneumonia at birth, but he acknowledged that there was as good a chance that the baby acquired strep B and MAS during labor and birth as prior thereto; that the baby had respiratory distress "at birth"; and that upon delivery, the baby immediately required some type of oxygen support. He further opined that if Javier did have strep B, then that could result in an inflammatory response in the lungs. The baby had respiratory distress at birth, which Dr. Willis thought was most likely caused by MAS, both irritating the lining of the lungs, and causing them to thicken and create mechanical obstruction of oxygen exchange in the lungs. He acknowledged that the baby's respiratory status deteriorated after the Apgars were recorded. He described the baby's condition on leaving the delivery room as only "improving somewhat." Dr. Willis testified, in pertinent part, as follows: * * * [Dr. Willis] A: . . . the baby went to the, left the delivery room, improving somewhat, but once the baby got to the nursery, began having more respiratory distress, and then was transferred to the neonatal intensive care nursery . . . about five or six hours after the baby was born that they had to intubate the baby because of worsening respiratory distress. * * * [Mr. Wolk] Q: All right. And respiratory distress worsens in the immediate post delivery period even after the baby's received supplemental oxygen and needed to be bagged. Also correct? A: Correct. Q: The respiratory distress continues worsening and the baby then needs to be intubated at five hours after birth? A: Yes. Q: Okay. This continuum of respiratory distress then continues. And I'm tracking the language on the first page of your report, Doctor. A: Uh-huh. Q: So about 18 hours after birth the baby codes in the NICU? A: Correct. Q: All right. All right. At this point would you -- do you have an opinion as to whether the cause of the code was related to group B--more related to group B stress [sic] or meconium aspiration, or a combination of the two? A: You know, I don't know. I believe by that time you're probably getting in more to a neonatal expertise then [sic] a maternal fetal medicine. I mean, I feel comfortable with the immediate postdelivery period, but, you know, hours into the nursery, I would prefer the neonatologist comment about that.[5/] Q: All right. We've got this continuing of worsening respiratory distress, starting with birth and then continuing to the code about 18 hours afterwards in the NICU, correct? A: Yes.[6/] Q: All right. Basically the summary in your report, baby requires CPR for 40 minutes and develops an anoxic brain injury from the code, correct? That's my assumption, yes. Q. When you say that's your assumption, what do you base that assumption on? A: Well, you know, the baby had a -- an ultrasound of the head done on the 15th, the day after birth, which would be, you know, after the code, and at that time they showed a moderate amount of cerebral edema, and that's often what we see as the earliest ultrasound findings for hypoxic ischemic brain injury, so -- Q: So more likely than not the edema shown on the head ultrasound was the result of a hypoxic brain injury? A: Right. And since the baby coded and required, you know, 40 minutes of CPR, it would certainly make sense that if there's, you know, brain injury, that it probably occurred, most of it, during that time. (Jt. Ex. 18, Willis Depo. pages 19-22) * * * [Mr. Solomon] Q: Okay. Would you agree with me that the passage of meconium and the meconium aspiration was an event which occurred sometime prior to the delivery of Javier . . . ? * * * A: . . . -- yes, it could occur at that time, but also you can get aspiration of meconium after the baby's born, when the baby takes the first few breaths as well. Q: Okay so it either occurred just prior to delivery or in the immediate post delivery period, correct? A: Correct. (Jt. Ex. 18, Willis Depo. pages 27-28) * * * Q: Okay. Is this child hypoglycemic at birth? A: Yes. The baby did have hypoglycemia, had low platelet counts, had a lot of problems, actually. Q: And all of these conditions would have existed at or around the time of birth, correct? A: Yes. (Jt. Ex. 18, Willis Depo. page 29) * * * Q: I mean, did this child always require some type of respiratory support? A: As far as I'm aware, yes.[7/] (Jt. Ex. 18, Willis Depo. pages 30-31) After his two "heart attacks," see Finding of Fact 16, Javier was transferred to Miami Children's Hospital at 10:30 a.m., on December 15, 2006, in critical condition with unstable heart rate, respiratory rate, and blood pressure. Javier's admitting diagnoses at Miami Children's Hospital included MAS, pulmonary hypertension, septic shock, hypertension, thrombocytopenia, and the need for continuous ventilator support. Javier was placed on extracorporeal membrane oxygenation (ECMO) due to severe respiratory distress and sepsis. ECMO is the equivalent of a heart/lung bypass machine which breathes for the infant and oxygenates his blood. At this point, ECMO "stabilized" Javier, but that is because it breathed for him. A brain ultrasound at Miami Children's Hospital at 1:33 p.m., on December 15, 2006, revealed "moderate diffuse brain edema." An EEG also showed abnormality. A brain ultrasound performed on January 9, 2007, was abnormal and showed signs of periventricular leukomalacia (PVL) within the brain's left frontal white matter, indicative of dead brain tissue. On February 14, 2007, a brain ultrasound showed a focal area of echogenicity in the white matter of Javier's brain. A CT scan of Javier's brain on April 3, 2007, showed permanent areas of calcification in the white matter of the left frontal lobe and an area of increased density in the white matter adjacent to the frontal horn of the left lateral ventricle. Encephalopathy and leukomalacia (signs of permanent brain injury resulting from loss of oxygen) were diagnosed on April 4, 2007, by Dr. William F. Carroll, a neonatologist at Miami Children's Hospital. He noted that Javier was oxygen dependent and required oxygen via nasal cannula; was at risk for developmental delay and required long term follow-up with physical, occupational, and speech therapies as well as frequent follow-up with the Early Intervention Team and multiple healthcare providers. A CT scan on April 3, 2007, showed that the cerebral edema was largely resolved and that only a "tiny area of increased density in white matter of the right frontal lobe remained, and this tiny area might constitute an area of calcification." See Finding of Fact 36. Javier remained at Miami Children's Hospital through April 24, 2007, when he was discharged by Dr. Manuel Campos, a neonatologist. When discharged, Javier had a doctor's authorization for "medically necessary" skilled nursing for 24 hours per day for one month, then 12 hours per day for two weeks. Thereafter, he transitioned into family care. The discharge diagnosis was thrombocytopenia, MAS, and pulmonary hypertension. Javier also had failed his hearing screening. However, a later test showed his hearing to be intact. See Finding of Fact 36. An MRI was recommended for further evaluation but was not performed until four years later, when it showed physical brain damage to Javier's hippocampus. See Finding of Fact 43. Although Petitioner and Intervenor have argued that oxygen deprivation to Javier's brain persisted through ECMO and further into the postnatal period, no finding regarding that period is necessary, because the greater weight of the competent evidence supports a finding that the injury to Javier's brain occurred during resuscitation in the immediate postdelivery period in Baptist Hospital no later than when Javier "coded" due to the cardiac arrests, and that the brain injury from oxygen deprivation had occurred at least by that point in time. Javier's Evaluations and Diagnoses Israel Alfonso, M.D., Director of Neonatal Neurology at Miami Children's Hospital, followed Javier's progress for some time. His reports, stipulated in evidence, addressed Javier's situation on April 30, 2007, July 23, 2007, March 24, 2008, and March 23, 2009. Dr. Alfonso's last narrative report, rendered when Javier was 27 months of age, describes a CT brain scan on April 3, 2007, showing a "[t]iny area of increased density in the white matter of the left frontal lobe that may represent an area of calcification," see Finding of Fact 31; a March 20, 2007, BAEP study, suggesting "normal precochlear and cochlear functions as well as normal conduction through both peripheral and central auditory pathways up to the level of the midbrain bilaterally"; a March 27, 2007, sacral ultrasound, showing a normal spinal cord; a VEEG study on January 22, 2007, represented as "Normal, . . . events non-epileptic in nature," and a January 15, 2007, normal EEG. His report further stated, ASSESSMENT: Neurological examination: minimal gross and fine motor developmental delay and hypotonia. IMPRESSION: static encephalopathy temporally related perinatal problems by history manifested by poor head growth (following a trend), minimal hypotonicity and feeding problems (improving). No craniofacial disproportion. Translated from "doctor-speak," the foregoing means that the neurologist associated with Javier for the longest time in a clinical setting, as opposed to a setting for litigation, who also is the neurologist who has had the most "hands on" association to date with Javier, diagnosed him at 27 months, as having minimal gross and fine motor developmental delay; permanent but non-progressing and unchanging encephalopathy; minimal loss of muscle tone; poor head growth; and feeding problems. Dr. Duchowny, NICA's pediatric neurologist, performed an independent medical examination of Javier on July 15, 2009, when Javier was about 31 months old. Deposed on April 12, 2010, Dr. Duchowny's ultimate opinion was that his examination of Javier did not reveal evidence of a substantial motor (physical) or mental impairment and consequently, Javier would not be compensable under the NICA statute. That said, Dr. Duchowny acknowledged that Javier had Attention Deficit Hyperactivity Disorder (ADHD), hypertonia and some fine motor impairment and developmental delays. He also noted that Javier's head was in the third deviation too small for his body and that the fontenelles of his skull had closed, and that as a result, Javier's brain would not grow as Javier grows physically. Dr. Duchowny did not view microcephaly as a "physical impairment," but as a "physical finding on neurological examination," and testified that, in his view, "an impairment would be some problem that prevents one from doing things." However, he also conceded that probably 90 percent of microcephalics have a lower IQ than normocephalics; more often than not, as they age, the majority of microcephalics have other motor or developmental issues, compared with normocephalic children; and for the majority of microcephalic children, these motor or developmental issues are permanent. Dr. Roberto F. Lopez-Alberola, Assistant Professor and Chief of the Section of Child Neurology, Pediatrics, at the University of Miami's Miller School of Medicine, wrote (in pertinent part) in a letter concerning his February 26, 2010, assessment of Javier, when Javier was approximately three-and-a- half years of age, that: PHYSICAL EXAMINATION VITAL SIGNS: . . . Head circumference of 46 cm, which is below the 2nd percentile. GENERAL: Awake, alert, fidgety, and hyperactive, yet very sociable and playful, interactive both physically and verbally. Well nourished. No dysmorphic features. HEENT: Microcephalic, atraumatic, pupils equally round and reactive to light and accommodation. Extraocular movements were full. Occasional eye blinking noted. No craniofacial asymmetry. CARDIOVASCULAR: Irregular rate and rhythm. RESPIRATORY: Clear to auscultation. ABDOMEN: No hepatosplenomegaly, soft and depressible. SKIN/EXTREMITIES: No rash or lesions. No joint deformity or limb asymmetry. No hypo or hyperpigmented skin areas. NEUROLOGIC: Cranial nerves II through XII grossly intact. SENSORY: Romberg was negative. Deep tendon reflexes symmetric. MOTOR: Slightly decreased tone throughout. Fair muscle bulk. No evidence of wasting or atrophy. No pronator drift. COORDINATION: No truncal titubation, however, decreased balance and coordination with slight dysmetria bilaterally. GAIT: No ataxia. ASSESSMENT: In summary, Javier is a 3-year-old young boy with complicated birth history with known developmental delay, making strides, microcephaly, abnormal movements, which are consistent with simple motor tics. Interestingly today, the patient's maternal grandfather accompanied mother and he also has a longstanding history of simple motor tics, which most likely then represent a familial trait. Nonetheless, the EEG which was ordered to rule out any epileptic activity, although these movements are not epileptic in nature, the EEG is not normal and does show epileptiform activity. . . . it is questionable whether the patient's microcephaly is acquired or if indeed was congenital. In terms of the patient's simple motor tic disorder, I have explained to mother the natural history of tics and as long as the tics are not bothering the patient psychologically or emotionally or in any physical form that treatment would be deferred. In terms of the patient's developmental delays, the patient most certainly would benefit from continued therapies including occupational and physical therapy, as the patient's coordination and balance as well as muscle tone are still impaired. I have also recommended aqua therapy. In terms of the patient's behavioral issues, I have recommended behavioral therapy and at some point if the patient's hyperactivity were to become an issue interfering with his behavior and his academic progress, would then consider pharmacotherapy. . . . (emphasis added). For purposes of assessing permanent impairments, the foregoing record appears to state that Javier's head is too small for his body, which may be a birth injury or congenital, and which is a condition that persisted at the date of final hearing, as also discussed by other physicians, including Respondent's expert neurologist, Dr. Duchowny, see Findings of Fact 39-40, that Javier has tics, which are as likely to be congenital or hereditary as they are to be the result of brain injury, and that are not epileptic in nature; that Javier has symmetrical and working limbs, muscles, and joints; and that he is without ataxia, meaning that he has some ability to coordinate body movements. Ataxia is sometimes associated with walking or cerebral palsy. This record also states that Javier evidences dysmeteria (an abnormal condition typically characterized by overestimating or underestimating the range of motion needed to place the limbs correctly during voluntary movement); that some of his muscles are somewhat flaccid; that he is without Romberg's sign8/; and that his gait (walking) is within normal limits. However, the record also states that upon report by his mother, Javier has developmental delays. Dr. Suite, a neurologist, examined Javier on September 17, 2010, and testified on behalf of Petitioner. He rendered a report of his examination, which, together with his testimony, shows that Javier's affect was dull and slow; that he had no history of epileptic seizures; that he could relate some of his history; and that his head circumference is microcephalic. Contrary to a previous treating evaluation, see Finding of Fact 37, some limitation of Javier's lateral spine and range of hip movement was found. Contrary to a previous treating evaluation, see Finding of Fact 41, Dr. Suite found a positive Romberg sign and abnormal gait. He also diagnosed developmental delay, attention deficit disorder, hypotonia, and behavioral difficulties. On August 26, 2011, a brain MRI of Javier (age four years, eight months) was done at Miami Children's Hospital. It concluded: Scattered foci of superatentorial signal abnormality, likely areas of gliosis or dysmyelination, the result of a remote insult. Bilateral hippocampal atrophy, on the left with associated sclerosis. Tiny physiologic pineal cyst and small choroidal fissure cyst. Dr. Castellanos, a board-certified child and adolescent psychiatrist, examined Javier at Dr. Saladrigas' request on October 31, 2011. He diagnosed Javier at approximately five years old, with cerebral palsy, ADHD, problems fulfilling activities of daily living (ADLs), developmental problems related to personal hygiene, and intermittent memory deficits currently manifesting as Javier being unable to remember from day to day where his pull-ups are stored; that he is supposed to place his school gear in his "cubby"; and his being unable to remember where, within his school, his "cubby" is located.9/ Significantly, Dr. Castellanos predicted that Javier's brain will not continue to grow, but the complexity of academic tasks required of him will increase and his ability to cope will diminish; he will become more frustrated; and in the future, he will be even less able to perform academically than at the present time. Ultimately, Dr. Castellanos deferred to psychologists for testing IQ and to teachers to determine what learning disabilities Javier may have. The Extent of Javier's Mental and Physical Impairments Under the NICA Plan, a "physical impairment" relates to impairment of the infant's "motor abnormalities" or "physical functions." "Mental impairment" also addresses functionality, as opposed to mere diagnosis. However, under NICA, the identification of a substantial mental impairment may include not only identifying significant cognitive deficiencies but can include, in a proper case, additional circumstances such as significant barriers to learning and social development.10/ As his parent, Javier's mother is better positioned than anyone else to observe Javier's day-to-day behavior.11/ In this case, Dr. Saladrigas is a licensed clinical psychologist, and accordingly, despite the inherent natural bias of every parent, her observations and impressions of Javier's functioning are entitled to some greater weight than might ordinarily be accorded a lay-parent.12/ That said, Javier's mother's testimony contains internal contradictions. On the one hand, she testified that she tested his IQ prior to his entering the academic year at St. Thomas Parish School in August 2010, at about age three, and found it to be in the normal range of IQ. On the other hand, she states that such testing does not have much validity until a child is six. She testified that Javier has never had an independent IQ test, but that he had IQ testing by Ketty Gonzalez, without any elaboration on what was determined. Under these circumstances, the undersigned is left with a perception of Javier's possessing a normal IQ at age three. Javier has epileptiform signals on various brain examination, but he has never been diagnosed with epileptic seizures. His mother believes his tics and eye-rolling signal seizures, but no physician or test has confirmed this perception. Javier is bilingual in Spanish and English, because his family speaks both languages. According to his mother, Javier started to speak first words "possibly" before he was one year old, and she considers that Javier met his normal developmental milestone in this regard and later with regard to when he first spoke in sentences. In the past, Dr. Saladrigas has been diligent in seeking out and providing private occupational, speech, and physical therapies for Javier, but at the present time, he is in an Exceptional Student Education (ESE) class in the public school system, which can provide all these therapies. Even now, his mother prefers to pay for occupational therapy in the private sector. She stated that at the present time, Javier's speech and the production of his speech is quite good, and his feeding problems have largely disappeared, so she has temporarily discontinued private speech therapy. At the present time, Javier is physically able to walk without assistance; to use the bathroom by himself, although he wets the bed most nights; to run around the playground when he chooses to do so; and to swing on the swings without assistance. He requires neither braces nor a wheelchair for ambulation. His mother reported that he started walking at thirteen months, which she perceives is a normal age for that developmental milestone. Dr. Castellanos observed that Javier talks a lot and is clumsy with his drawing. He has diagnosed Javier has having cerebral palsy, which is a physical or motor disability, arising in Javier's damaged brain, as opposed to a mental disability, but Dr. Castellanos agrees that Javier is very active and without physical problems ambulating. Javier's mother also commented on Javier's "floppy" aspect, that is, his mild hypotonia or muscle weakness, but she admitted that there is not much Javier cannot now do from a gross motor standpoint. Nonetheless, she perceives a difference in the quality of Javier's gross motor functions in comparison to those of her two-year-old son and her nephews of varying ages. She described Javier's susceptibility to pneumonia due to his lung damage from MAS, for which he has had 10 hospitalizations. He has poor appetite and a general fraility as a result of the lung damage. She uses a nebulizer with him and a "Shake Vest" to break up the congestion in his lungs. He uses oxygen when he travels. Next to his mother, Javier's teachers are probably best-suited to describe how Javier functions daily and how he learns.13/ Javier has been placed in a succession of five pre- schools where he has had little success and from which he was either asked to leave as a result of behavioral problems or was withdrawn by his mother because, according to her, the teachers in those schools, who were not ESE-qualified, "complained" about Javier's disruptive behaviors. Javier also had not been able to interact successfully with the other "normal" children in any of these locations. Dr. Saladrigas perceives Javier's socialization problems as related to hyperactivity; as not honoring the "personal space" boundaries required by other children; and as his withdrawal from interaction with other children when he is not successful socializing with them or getting their undivided attention. Her perceptions in this regard were echoed by Kitty Finneran, associate head of St. Thomas Parish School. Dr. Saladrigas placed Javier at St. Thomas Parish School's summer camp in June 2010, when he was three-and-a-half years old. She sought no special accommodation for him, and, in fact, withheld from school/camp staff some information regarding his difficulties in his prior pre-school environments, so that he would not be pre-judged. Initially, in the first part of the June 2010, summer camp, experienced school staff viewed Javier as being in the normal range for his development, based upon their observation and conversation with him and his mother. After a period of observing how Javier interacted with other children at camp, they recognized that he had the types of behavioral, social, and learning problems testified-to by his mother and Ms. Finneran. Kathleen Finneran is the associate head of St. Thomas Parish School. She has been associated with St. Thomas for 43 years and has been an administrator there for 17 years. Ms. Finneran presided over the summer camp activities when Javier was enrolled there in June 2010 and over the school year that began in August 2010. She described Javier as having no focus; doing inappropriate things; invading others' personal space; being unable to grasp "why" he was forbidden to "stomp" repeatedly on a teacher's foot, and persisting in such behavior despite being told not to do so. She described him as retreating to the swings from other playground play when he could not get other children to focus on playing with him or playing what he wanted them to play and as frightening them. Javier's mother described Javier's home play then, and at the present time, as being almost exclusively on the swings or dressing up, pretending to be a fictional character, and running around the house in costume. She maintained that he could parallel play with toys, but could not play with toys interactively with his brother or cousins. She indicated that Javier's role-playing had carried over to his annoying other visitors at Disney World when the family had gone there in the summer of 2011. On that trip, Javier imitated the cartoon character actors by blowing kisses and asking other park attendees to dance with him. Dr. Saladrigas, Ms. Finneran, and Dr. Castellanos commented on Javier's propensity to constantly sing to himself. His mother says he learns songs quickly. In August 2010, Javier began his three-year-old pre- school program at St. Thomas. He was not able to function in a regular class with two teachers and 15 other children. One teacher had to be assigned to exclusively manage him. Dr. Saladrigas was ultimately asked to remove Javier from St. Thomas Parish School, which she did. Javier is currently enrolled in an "inclusive" ESE program in the public school system. His mother is credible in her assertion that he has not yet been classified as to type of ESE student at this early grade level. However, so far, he seems to be functioning adequately in an ESE "inclusionary" class of 50 percent ESE students and 50 percent mainstream students. Analysis It is the child's ability to function mentally which must control a determination of permanent and substantial mental impairment or lack thereof. Javier has been diagnosed with ADHD, developmental delays, dull affect, slow speech, problems with ADLs, and memory deficits. Although he has been unsuccessful to date in mainstream educational environments, such as St. Thomas Parish pre-school and camp and in what appear to be other very informal pre-school environments, there are no standardized IQ or other intellectual tests whereby his degree of mental impairment or ability to learn can be assessed. In a proper case, proof that a child cannot learn once he is placed in an accredited ESE class could support a finding of permanent and substantial mental impairment, but there is no such proof here, and NICA reasonably points out that Javier has made good progress in private, one-on-one speech therapy, physical therapy, and occupational therapy. Even so, there can be no serious debate that Javier's microcephalic head constitutes a permanent abnormal physical condition, and that his closed fontenelles mean that his head and his brain will not continue to grow, as he otherwise physically grows and matures, or that he will have limited intellectual functioning as a result. These factors, together with his failure to understand correction, his inability to remember physical things and locations, his inability to sequence tasks, and his failure to process memory, compel a finding that Javier has, indeed, sustained a "permanent and substantial mental impairment." However, the evidence falls short of establishing that Javier has sustained a "permanent and substantial physical impairment." Petitioner asserts that because all of Javier's mental impairments arise from the physical injury to his brain, which injury is visible on MRI within the hippocampus, then it must follow that he is permanently and substantially physically impaired, as well as permanently and substantially mentally impaired. This argument is not persuasive. The language employed by the Legislature in enacting section 766.302(2), recognizes a distinction between "injury" and "impairment." It provides compensation only for an "injury to the brain or spinal cord . . . caused by oxygen deprivation or mechanical injury . . . which renders an infant permanently and substantially mentally and physically impaired." Because of the clear language selected by the enactors, "injury" and "impairment" cannot mean the same thing. By statutory context, the physical or mental "impairment" must come to pass because of the brain or spinal cord "injury." Moreover, "impairment" has, throughout the history of the Act, been equated with functional defect or loss of functionality.14/ Javier has lung damage and significant recurrent pneumonia, probably related to MAS and probably not related to his brain injury in the statutory period, but his lung problems have been considered as part of the sequelae of the brain injury which occurred in the statutory period. Even so, the treatments Javier has undergone and the maturation process seem to have lessened the physical problems with his lungs. Javier has cerebral palsy and mild, generalized hypertonia (decreased muscle tone) directly related to his brain injury in the statutory period. Yet, he can perform all of the physical demands of daily living. He has gross control of his head and use of his hands, arms, and legs, with only some mild leg-shaking. His tics and the rolling back of his eyes may or may not be congenital, but they are intermittant. His fine motor control development is stunted, but he is able to sit alone, stand alone, walk, run, swing, and play alone or with others. Javier can see, hear, smell, and speak. There is no evidence he has an impaired sense of touch. Javier met his early developmental milestones. There is no evidence suggesting that he cannot be trained to feed and groom himself, despite current personal hygiene issues. He is toilet trained, except at night, and his medical records show his amount and frequency of bedwettings do not amount to eurinesis. On its own, this scenario does not amount to permanent and substantial physical impairment. The record also does not support a finding that any or all of Javier's physical impairments present significant barriers to learning and social development.
The Issue Whether the Petitioner is eligible to enroll in the Developmental Disabilities Program administered by the Respondent.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department is the state agency charged with administering and determining eligibility for services to developmentally disabled individuals pursuant to Florida's Developmental Disabilities Prevention and Community Services Act, Chapter 393, Florida Statutes. Section 393.065, Florida Statutes (2001). The program developed by the Department is known as the Developmental Disabilities Program. Mr. Fernandez is 31 years of age and a resident of Miami, Florida. Mr. Fernandez submitted an application to the Department requesting that it enroll him in its Developmental Disabilities Program and provide him services as a developmentally disabled individual under the categories of retardation and autism. The Department evaluated Mr. Fernandez's application and determined that he was not eligible to receive services through the Developmental Disabilities Program under either category. In making this determination, the Department considered a Psychological Evaluation Report dated June 26, 2001, that was prepared by Hilda M. Lopez, Ph.D., a licensed clinical psychologist to whom Mr. Fernandez was referred by the Department.2 To assess Mr. Fernandez's intellectual functioning and cognitive abilities, Dr. Lopez administered the Wechsler Adult Intelligence Scale-Third Edition ("WAIS"). According to her report, Mr. Fernandez attained a Verbal I.Q. score of 80 points, a Performance I.Q. score of 80 points, and a Full Scale I.Q. score of 78 points. These scores place Mr. Fernandez in the Borderline range of intellectual functioning. The Department considers persons who score 70 points or less on the WAIS to be mentally retarded. The mean score on the WAIS is 100 points, and the standard deviation is 15 points. To assess Mr. Fernandez's adaptive behavior, Dr. Lopez administered the Vineland Adaptive Behavior Scales ("Vineland"). Mr. Fernandez attained an Adaptive Behavior Composite score of 66, which indicates that his adaptive behavior is in the low range. His scores reveal deficits in the domains of Living Skills, Communication, and Socialization. Dr. Lopez also tested Mr. Fernandez for autism using the Childhood Autism Rating Scale. In the report, Dr. Lopez noted that Mr. Fernandez was rated by his father and by Dr. Lopez after observing, interacting, and interviewing Mr. Fernandez. Dr. Lopez reported that Mr. Fernandez's score was 26.5 points, which places him within the non-autistic range. Dr. Lopez observed in the report, however, that Mr. Fernandez "showed the following behavior problems: inappropriate emotional reactions, mildly abnormal fear and nervousness, resistance with [sic] changes in routine, mildly abnormal adaptation to change, and restlessness." A score of 30 points or more on the Childhood Autism Rating Scale is indicative of autism disorder. When Mr. Fernandez was a child of four or five years old, he was apparently diagnosed with autism, and he and his family took part in a behavior modification program in Boston, Massachusetts. As a result of the work done by Mr. Fernandez and his parents in this program, Mr. Fernandez learned to talk, although long after his peers, and improved his social skills. Based on her psychological evaluation of Mr. Fernandez, Dr. Lopez recommended the following: Mr. Fernandez will greatly benefit from a program geared at providing him with help to enhance his functional skills. Facilitation of social services to provide needed support and monitoring. Stimulation program oriented to develop his cognitive skills, to improve attention, memory, verbal communication and problem solving in order to achieve optimal capability. He will benefit from supported employment and referral to Vocational Rehabilitation Services for proper counseling and training. Mr. Fernandez was unable to produce any documents relating to his early diagnoses and treatment or his special education placements because these documents were destroyed in a fire that destroyed the Fernandez home. According to his father, Mr. Fernandez makes friends easily and communicates verbally very effectively. He worked for a while in a family business where his limitations were tolerated, and he flourished in this job. On the other hand, Mr. Fernandez is easily frustrated and confused, and he has difficulty following directions in simple matters. His father is seeking services on Mr. Fernandez's behalf that will teach him to live on his own and to become a productive citizen. The uncontroverted evidence presented by Mr. Fernandez establishes that he is in need of several of the services available through the Department's Developmental Disabilities Program. The evidence presented by Mr. Fernandez is not, however, sufficient to establish that he is eligible to participate in the Developmental Disabilities Program under the eligibility criteria established by the legislature for developmental disabilities.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a final order denying the application of Mikael Fernandez for enrollment in the Developmental Disabilities Program. DONE AND ENTERED this 28th day of June, 2002, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 2002.
The Issue Whether Respondent committed the unlawful employment practices alleged in Petitioner's charge of discrimination and, if so, what relief should Petitioner be granted.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Petitioner is now, and has been since June 2008, employed as a "per diem" switchboard operator at Holy Cross Hospital. She was employed as a part-time switchboard (PBX) operator in University's PBX Department from July 25, 2005, until she resigned on October 26, 2008.6 As a University switchboard operator, Petitioner was responsible for answering and appropriately handling and routing, with dispatch, incoming calls (including "codes," which are emergency calls) to University's switchboard during her shift. The manager of University's PBX Department when Petitioner was hired was Eleanor Dingus. At no time did Ms. Dingus have occasion to discipline Petitioner, nor did Ms. Dingus ever receive any complaints from other operators about Petitioner's "performance on the switchboard." Gloria Gonzalez replaced Ms. Dingus as the PBX manager in July 2006, and has held that position ever since. At all times material to the instant case, directly under Ms. Gonzalez in the chain of command in University's PBX Department was Cathy Hudson, the PBX supervisor. Reporting to Ms. Hudson were three switchboard operators who served as "team leaders," one of whom was Miriam Reyes. At the bottom of the chain of command were Petitioner and approximately three other non-"team leader" switchboard operators. The PBX Department provided switchboard services on a 24-hour per day, seven-days a week, basis. At all times, there was either one operator or two operators (each using separate "consoles") taking calls. When there were two operators on duty, one operator's not picking up calls, or "staying on a call for an unusually long amount of time," would result in the other operator's having "more calls to pick up." Petitioner primarily worked the evening shift. "Sometimes she worked alone," and sometimes she worked a shift with another operator. In August 2007, Petitioner received a merit pay increase to $11.90 per hour (from $11.55 per hour) based upon an annual performance appraisal Ms. Gonzalez had completed on July 10, 2007. The appraisal contained the following "Evaluation Summary": Evaluation Summary Strengths/accomplishments: Gladys is a good operator. Very responsible and always on time. Areas for growth: Gladys needs to [acc]ept our Departmental changes in a much more positive manner and not get caught up with the small stuff or negativity in our Dept. This was the last annual performance appraisal that Petitioner received prior to her resignation on October 26, 2008, notwithstanding that, pursuant to written University policy, University employees were supposed to "receive an evaluation at least annually, normally twelve months from their anniversary date (date of hire) or last change of position date (promotion, lateral move, and demotion) . . . in order . . . to monitor adherence to performance standards to manage, develop and motivate individual performance." Prior to her 2007 annual evaluation of Petitioner, Ms. Gonzalez had started receiving complaints about Petitioner's performance from operators who had shared shifts with Petitioner. Over time, the complaints became more numerous. According to what the operators had told Ms. Gonzalez, Petitioner had been "slow answering [calls]"; kept "the switchboard on busy"; "take[n] her time getting to the switchboard at times"; and on occasion, "stay[ed] [on] too long with a caller." These were things that Ms. Gonzalez herself had personally observed. Initially, Ms. Gonzalez just verbally counseled Petitioner about these issues. Petitioner "would sometimes get upset" during these counseling sessions. In November 2007, Petitioner was formally disciplined for "unsatisfactory performance regarding receiving calls." The discipline she received was in the form of a "written warning" contained in a Notice of Corrective Action prepared by Ms. Hudson (the PBX supervisor and Ms. Gonzalez's second-in- command) and approved by Ms. Gonzalez. Petitioner was given a 30-day (probationary) period to improve her performance. The decision to place Petitioner on probation was made jointly by Ms. Gonzalez and Jennifer Lindsey, University's human resources operations manager. Ms. Gonzalez monitored Petitioner's performance on the switchboard during her probationary period and determined that it had improved sufficiently to warrant Petitioner's return to non-probationary status, without the imposition of any further disciplinary action. Unfortunately, Petitioner's performance deficiencies subsequently "resurfaced." On May 20, 2008, after receiving a complaint about Petitioner from Ms. Reyes (one of Ms. Gonzalez's three "team leaders"), Ms. Gonzalez prepared and gave to Petitioner a Notice of Corrective Action, reflecting that she was issuing Petitioner a "verbal warning" for "[n]ot responding to the switchboard in a timely manner." The following "details of the . . . infraction" were given in the notice: Gladys was informed that she would take over the switchboard at 4 pm on 5/12/2008 for a department meeting. She did not turn her switchboard on at that time and calls started to accumulate. Miriam asked Gladys to take over the switchboard and Gladys did not do so with a sense of urgency. The expectation going forward is that Gladys will answer the switchboard as soon as it buzzes. The notice also contained the following "Corrective Action Plan": [On] 11/21/07 [Petitioner] was given 30 days for performance improvement and although the plan was completed on 1/9/08, previous performance concerns have resurfaced with the timely answering of the switchboard. It is our expectation that within 30 days we will be able to review her performance with answering calls and be able to notice significant improvement. When presented with the notice, Petitioner wrote on it, under "Employee Comments," the following: "This was one incident on our meeting day. I do remember when it occurred." The notice had been presented to Petitioner by Ms. Gonzalez at a meeting between the two at which Ms. Lindsey had also been present. As University's human resources operations manager, it was Ms. Lindsey's responsibility to make sure that employees met the physical requirements of their position and were otherwise fit for duty. One of the physical requirements of the position Petitioner held was to "[h]ear alarm, telephone/tape recorder/normal speaking voices." During the May 20, 2008, meeting at which Petitioner was presented with the Notice of Corrective Action, Ms. Lindsey "asked [Petitioner] if [Petitioner had] heard the switchboard." Petitioner "perceived th[is] as a statement of age discrimination by Ms. Lindsey"7 (albeit one that did not "affect [her] job"). Despite what Petitioner may have believed, in making such an inquiry, Ms. Lindsey was simply seeking to find out if the reason for Petitioner's not "timely answering . . . the switchboard" was that she had a hearing problem. Petitioner responded to Ms Lindsey's question by telling Ms. Lindsey that "she did hear the calls, but that . . . the calls pile up all the time." Ms. Lindsey required Petitioner to review a Position Minimum Requirement[s] Checklist. After reviewing the document, Petitioner signed it, indicating that she believed that she met all of the requirements of her position. Some time after the May 20, 2008, meeting, Ms. Gonzalez heard from Ms. Hudson that Ms. Reyes had reported being asked by Petitioner, in a confrontational manner, whether it was Ms. Reyes who had complained about Petitioner's "[n]ot responding to the switchboard in a timely manner" on May 12, 2008. Ms. Gonzalez thereafter personally contacted Ms. Reyes to find out what had happened during this post-May 20, 2008, incident involving Ms. Reyes and Petitioner. Ms. Reyes, when contacted, told Ms. Gonzalez that Petitioner had "threatened" her. The matter was brought to the attention to Ms. Lindsey, who made the decision to suspend Petitioner for three days. The suspension was "for the purpose of conducting a fact-finding investigation" to determine whether Petitioner, in her dealings with Ms. Reyes, had violated University's Workplace Violence Policy (HR-2000-009), which provided, in pertinent part, as follows: POLICY University Hospital and Medical Center is committed to providing a safe workplace for all employees, patients, physicians and visitors. Workplace violence of any type committed by or against employees, patients, physicians or visitors will not be tolerated. PROCEDURE A. To ensure safe and efficient operations, University Hospital and Medical Center expects and requires all employees to display common courtesy and engage in safe and appropriate behavior at all times. * * * The following list of behaviors, while not all inclusive, provides examples of conduct that is prohibited. * * * Making threatening remarks; Aggressive or hostile behavior that creates a reasonable fear of injury to another person or subjects another individual to emotional distress; * * * Reporting Procedures Any potentially dangerous situation must be reported to a Supervisor, Security Department or Human Resources. Reports can be made anonymously and all reported incidents will be investigated. Reports or incidents warranting confidentiality will be handled appropriately and information will be disclosed to others on a need-to-know basis only. All parties involved in a situation will be counseled and the results of the investigation will be discussed with them. Employees are expected to exercise good judgment and to inform Security and/or Human Resources if any employee, patient or visitor exhibits behavior which could be a sign of a potentially dangerous situation. Such behaviors include but are not limited to: * * * Displaying overt signs of extreme anger, hostility, resentment or stress; Making threatening remarks; * * * e. Display of irrational or inappropriate behavior. * * * During the investigation, Petitioner submitted to Ms. Lindsey a "rebuttal" statement, dated May 29, 2008, which read as follows: This serves as notification that I am in complete disagreement with any claims made about my work performance as stated by Gigi Gonzalez. Gigi stated on 5/20/08, with Jennifer Lindsey in HR as witness, that a team leader Miriam Reyes said there were two calls backed up on the switchboard when we were changing shifts on Monday 5/12/08. She had already signed off and was abruptly leaving the office without checking if I was logged in before she signed off. Both calls were answered without problem or complaint by the callers. It is a normal occurrence when more than one call comes in at once for them to be what she referred to as "backed up." Miriam signed off the switchboard before checking if I was signed on. I received a 30 day probation disciplinary action and she did not. Per our work instruction, an operator is not to leave the position before a relief operator is available. I find the comment made by Jennifer "can you still hear the phone" a discriminatory reference to my age of 76-years-old. Furthermore, I was called at home by Jennifer Lindsey on 5/29/08 [and] put on involuntary suspension without pay for 3 days. Jennifer claimed that since I asked Miriam what she said about the incident that it was inappropriate. I was not asked about the situation. Rather I was interrogated. I have a right to know what is causing a disciplinary action . . . on my record. I also have the right to dispute or state my complaints without retaliation. Unpaid suspension without a proper investigation was undue hardship and a measure of retaliation. Since I was told I must sign the probation notice whether I agree with it or not, I request this to be in my personnel file and sign[ed] as received and reviewed by my supervisor as previously stated orally in the said meeting on May 20, 2008. This claim is unwarranted and causes undue financial hardship. Following the completion of her investigation, Ms. Lindsey determined that there was "insufficient evidence" to conclude that Petitioner had violated University's Workplace Violence Policy. Petitioner was put back on her normal work schedule and paid for the three days she had been suspended (and had not worked). Ms. Lindsey's "insufficien[cy]" determination was set forth in the following written statement Petitioner was given (and which she signed) on June 5, 2008: After an investigation was conducted on the incident that occurred on May 23, 2008, it is concluded that a discussion between Gladys and a co-worker did take place regarding Gladys' verbal warning for performance on May 20th. Gladys does admit to questioning her co-worker regarding information she may have provided to the manager of PBX regarding her performance. There is insufficient evidence to support that Gladys threatened her co-worker or that she was verbally abusive in any way. In the future Gladys will restrict her conversations with Miriam to business- related activities. This means only communication that must take place for her to perform the functions of her job. Any unnecessary communications or interactions may result in disciplinary action. In the future it is expected that Gladys will follow the Employment Dispute Resolution policy HR 2006-416 to express any disputes or state any complaints that she may have. A copy of this policy is being presented to Gladys today for reference. Gladys will be paid for the days that she was suspended in order to conduct this investigation. In late June 2008, in accordance with the "Corrective Action Plan" set forth in the Notice of Corrective Action she had given Petitioner, Ms. Gonzalez reviewed Petitioner's performance in the area of "answering calls." Ms. Gonzalez, in a document that she prepared and presented to Petitioner on or about July 18, 2008, described the "results" of that review as follows: Operator Gladys Norris has completed her performance improvement plan as of Sunday 6/29/08. In the course of the 30 days, I have been able to observe Gladys on the switchboard. Gladys has improved greatly. She has answered the board much more quickly. She did not let the board pile up. She put the callers on hold and then came back to the calls. I am confident that Gladys understands and is taking seriously her switchboard duties. She is very much aware that whenever possible, we should not let the calls pile up as emergency codes come through the switchboard. At around this same time (mid-July 2008), Petitioner learned that she needed to have emergency vascular surgery, and she so informed Ms. Gonzalez via an e-mail message, sent the evening of July 17, 2008, which read, in pertinent part, as follows: * * * . . . . But last week I had to have some tests done rather quickly and unfortunately have to have an unexpected urgent surgery performed (vascular nature). The doctor called me late this afternoon and said he has scheduled me for next Wednesday July 23rd. At this writing I cannot say how long I will be out from work but he did say at least three or four weeks for recovery. I will keep you apprised of my situation. You may have me on medical leave also. I will not be working anywhere during my recovery period so I cannot list any hours right now. Petitioner was granted leave for this "unexpected urgent surgery," as well as for her "recovery period." When she returned to work from leave, Petitioner was given her work schedule for September, which had her working the hours and days she "usually worked." Her schedule for September, however, was subsequently changed and, to her displeasure, she had to work three "overnight," Saturday night/Sunday morning shifts (from 11:00 p.m. to 8:00 a.m.) that month. She had never before, as a University employee, worked an "overnight" shift. When Petitioner asked Ms. Hudson why she had to work these "overnight" shifts, Ms. Hudson responded, "That's just the way it is." Up until September 18, 2008, throughout her employment at University, Petitioner had used a University-provided headset when working at the switchboard. On September 18, 2008, her headset and those of the other employees in the PBX Department were taken away in anticipation of their being replaced by new headsets (from Verizon). That same day, Petitioner and the other switchboard operators received the following e-mail from Ms. Gonzalez, informing them that they would soon be experiencing an uptick in call volume: Subject: Pavilion[8] Calls Ladies, Please note that starting Tuesday morning, we will be getting all the Pavilion[']s calls. There will be more Ext: 2221. Please make sure that you go over all Ext and Pavilion info. Keep in mind that call volume is going to increase. So do not spend a long time on any one call. Remember the time allowed for each call is 24 seconds per call. The Hospital wants a live person to answer at all time[s]. Also make sure that you know how to page all Pavilion calls over head. So ladies, when you clock in, and enter the PBX office, you must be ready to log in and start to work immediately. Please let me know if you have any further questions. Due to delays, it was not until November (approximately two months later) that all of the old headsets were replaced by new ones. The first new headsets came in a group of three.9 They arrived in the first half of October and were given to Ms. Gonzalez (the PBX manager), Ms. Hudson (the PBX supervisor), and Ms. Reyes (one of the three "team leaders"). On October 15, 2008, Ms. Gonzalez held a departmental meeting at which she discussed "what was going on with the headsets." Petitioner was at the meeting. From September 18, 2008, until her resignation on October 26, 2008, Petitioner had to use a "hand-held phone," instead of a headset, to answer calls coming in to University's switchboard. Approximately two weeks after she had started using the "hand-held phone," Petitioner began experiencing pain in her wrists, arms, shoulders, neck, and lower back. She visited her primary care physician, Greg Sherman, M.D., for treatment of the pain. The pain went away five or six weeks after she had stopped working at University. All told, the pain lasted no more than ten weeks. Based on what she had been told by Dr. Sherman,10 Petitioner attributed the pain she was experiencing during this period to her using a "hand-held phone" when working the switchboard at University. Despite the onset of the pain, Petitioner continued to work and perform her job duties at University for approximately three or four weeks until she felt she could do so no longer and resigned. During this period, she made her supervisors aware that she was in pain. On the morning of October 2, 2008, during a telephone conversation, she told Ms. Hudson that her "wrist, arms and neck hurt." Ms. Hudson did not ask Petitioner for any further details, and Petitioner did not provide any. Two weeks later, on October 16, 2008, at 10:34 p.m., Petitioner sent Ms. Hudson the following e-mail: Dear Cathy, Regarding my PTO [Paid Time Off] request for Nov 13, 14, 15, 16 (Thurs, Fri, Sat, Sun) I am wondering when I will know if it has been approved. Also do you know when my headset will arrive? I went to the doctor yesterday because I have had pain for a week now in my shoulders and wrists. I explained that I have been working without my headset for the past four weekends. He stated that that was likely the cause of the strain. I do hope the headset will arrive soon. A week having passed without Petitioner's having received a reply from Ms. Hudson, Petitioner, at 9:34 p.m. on October 23, 2008, sent the following e-mail to Ms. Gonzalez, to which Ms. Gonzalez never replied: Re: Waiting for an e-mail answer Hello Gigi, I sent an e-mail to Cathy regarding the headsets on Oct 14th.[11] I have not received a reply as of today. I understand a few operators have already received their headsets. Shouldn't we all have them as we work the same consoles? Working without my headset for the past 4 weekends has caused problem[s] in my wrists and shoulder/neck which I had to see a doctor [about] last week. After taking off earlier in the week because of the pain she was experiencing, Petitioner "tried to come in" to work at University on October 26, 2008, but she did not stay her entire shift. Because she did not know when she "was going to get a headset" and she had experienced "a lot of pain" working without one, Petitioner decided to resign her position at University. At 11:05 a.m. on October 26, 2008, she gave notice of her resignation by sending Ms. Lindsey the following e-mail: I hereby give notice that today, Sunday October 26, 2008 will be my last day at University Hospital. I have used a headset since the first day of employment in July 2005 when on PBX. Over the past five weeks I have been forced to work without my headset. My physical condition has been aggravated to the point I am forced to resign. Management has been uncooperative in this problem as well as many others I have addressed that have gone unanswered. Despite the pain she was experiencing at the time, Petitioner continued working, without interruption, as a switchboard operator at Holy Cross Hospital, where she had the use of a headset. To date, University has not filled the position from which Petitioner resigned.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR issue a final order finding University not guilty of the unlawful employment practices alleged by Petitioner in her charge of discrimination and dismissing the charge. DONE AND ENTERED this 12th day of April, 2010, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of April, 2010.
The Issue The issue is whether Respondent properly denied Petitioner's request for immediate developmental disability services, placing him instead on a waiting list for those services due to the unavailability of funds.
Findings Of Fact There are three primary funding sources for persons with developmental disabilities: Individual and Family Supports (IFS program); Home and Community Based Waiver for Persons with Developmental Disabilities (HCBW or Medicaid Waiver program); and Intermediate Care Facility for Developmentally Disabled Clients (ICF/DD program). The IFS program is funded from the state's general revenue. Based upon available funds, this program can pay for summer camps and other services that are not available under the other two programs. The HCBW program provides a variety of services to individuals with developmental disabilities under Section 19.15 (c) of the Social Security Act. It is a federal matching dollar program with approximately 50 percent of the funds furnished by the state and 50 percent of the funds furnished by the federal Medicaid program. Unlike the IFS and ICF/DD programs, the HCBW program can pay for residential habilitation in a home or community setting. The ICF/DD program serves clients in an institutional setting under a Medicaid entitlement program. Unlike the IFS and HCBW programs, which are not entitlement programs, the funds for the ICF/DD program are not limited and do not have to be prioritized. The federal government's Health Care Finance Administration (HCFA) has to approve the state's HCBW program. HCFA's approval serves as a waiver of certain federal Medicaid requirements. The waiver allows the state to serve individuals in community-based settings instead of institutions. The approval process includes identification of the number of individuals to be served, as well as defining the services to be provided and setting forth provider qualifications. In 1998, HCFA approved Respondent's five-year plan for an HCBW program. Under the plan as amended each fiscal year, Respondent makes a commitment to serve the lesser of a target number of individuals or the number of persons authorized by the state legislature. The target number of persons was 15,302, 22,433, and 25,945 for the 1998-1999, 1999-2000, and 2000-2001 fiscal years, respectively. Any difference between the target number of individuals to be served and the actual number of individuals served is based on the funds appropriated by the state legislature. Historically, the state has not been able to serve all individuals identified as developmentally disabled. The persons who are not served are placed on a statewide waiting list. Traditionally, individuals are removed from the waiting list and begin receiving services as funds become available. Prior to the 1999 legislative session and after federal litigation, Respondent identified the number of developmentally disabled individuals who were under-served or receiving no services. Respondent made this effort in anticipation of receiving additional funding to begin eliminating the existing waiting list. At that time, Respondent identified 23,361 persons who were on the waiting list. In 1999, Respondent developed and submitted to the Legislature a two-year spending plan. The purpose of the plan was to eliminate the existing waiting list by addressing the needs of the 23,361 people over a two-year period. Respondent based the plan on data then available and the existing case load. The plan assumed that Respondent would prioritize populations and provide services in an organized manner. The two-year spending plan called for new funding in the amount of $98,167,008 for the 1999-2000 fiscal year. The plan provided for the delivery of additional services to 15,984 people in the first year (July 1, 1999 through June 30, 2000), with the remaining 7,377 people receiving services in the second year (July 1, 2000 through June 30, 2001). The two-year spending plan estimated that additional funding in the amount of $118,215,693 would be required for the 2000-2001 fiscal year to serve the 23,361 people on the waiting list. The two-year spending plan contained the following priorities: Identify those persons in crisis, both in need of residential or community-based care, and serve them in the first six months. [This goal assumed that Respondent would serve 1,590 persons identified as in crisis in the first six months of the 1999-2000 fiscal year.] Identify those persons who are eligible for ICF/DD [Intermediate Care Facilities/Developmental Disabled] (LON [Levels of Need] 3, 4, & 5) and are in need of additional services and provide services (DOE vs. Bush). [This goal assumed that Respondent would continue to serve 1,298 persons already participating in the Medicaid waiver program and begin serving 5,237 additional persons in that program by the end of the 1999-2000 fiscal year.] Provide home and community-based services to persons who wish to move from the private institutions to the community (Cramer vs. Bush). [This goal assumed that certain numbers of people would elect to move from a private ICF/DD or a nursing home to the community program in the 1999-2000 and 2000-2001 fiscal years.] Determine the unmet needs of persons living in residential care, or needing residential care (not crisis) and who are ICF/DD eligible and provide services. [This goal assumed that Respondent would provide enhanced residential care to some persons and new residential care for others.] Determine the unmet need of persons not eligible for ICF/DD (LON 1&2) and begin meeting their needs. [This goal assumed that Respondent would meet the needs of all people then on the Medicaid waiver program in the first year. It also assumed that Respondent would provide services to 25 percent of the population who were not on the Medicaid program in the 1999-2000 fiscal year with the remainder receiving services in the 2000-2001 fiscal year.] In the 1999 legislative season, the Legislature renewed funding for services provided to the existing clients of the HCBW, ICF/DD, and IFS programs. The Legislature also provided additional funding for developmentally disabled persons in the amount of $98,167,008, to meet the priorities, in order, as follows: (a) transitions for those requesting transfers from ICF/DD institutional placements into HCBW residential placements; and (b) meeting the needs of identified under-served participants in the HCBW program. The 1999 Legislature did not provide any additional funding for the IFS program that would allow Respondent to increase the number of persons served in the IFS program without decreasing services provided to existing clients. In a memorandum dated June 22, 1999, Respondent advised its district administrators that the 1999-2000 spending plan was approved. The memorandum described certain tasks that had to be completed, together with relevant time frames, before Respondent could spend the appropriated funds. These tasks included the following: (a) Serve persons in crisis; (b) Serve persons wishing to move from ICF/DD to community placements; (c) Serve persons on the waiver with unmet needs or who are under-served; (d) Serve persons eligible for ICF/DD or HCBS waiver with unmet needs; and (e) Serve persons with limited and minimal levels of need who are not enrolled in the waiver (not enrolled in HCBW and not eligible for ICF/DD or waiver.) The two-year spending plan developed by Respondent in 1999 did not take into consideration the needs of developmentally disabled persons who were not in crisis and who applied for and became entitled to services after July 1, 1999. Therefore, as non-crisis applicants qualified for services after July 1, 1999, Respondent placed their names on a second waiting list. The new waiting list grew at an unprecedented rate due to the redesigned system and the influx of additional funds. During the 2000 legislative session, Respondent requested and the Legislature appropriated sufficient funds to continue the services provided to persons in the 1999 General Appropriations Act and for an additional 7,377 persons to be served in the 2000-2001 fiscal year. Once again the new funds were earmarked as follows: (a) for clients requesting transfers from a ICF/DD program to a HCBW program; and (b) for under- served clients in the HCBW program. The Legislature earmarked all of the new funding for the HCBW program. The Conference Report on House Bill 2145, General Appropriation Act FY 2000- 2001, Section 3, Specific Appropriation No. 344, specifically stated: The Medicaid waiver services mix must be fully met for all eligible participants before funds are transferred to non-Medicaid covered services, with the exception of room and board payments. In accordance with the Legislature's appropriations and proviso language for the 1999-2000 and 2000-2001 fiscal years, Respondent implemented a policy to eliminate the existing waiting list for persons seeking developmental disability services. Respondent properly determined that persons with unmet needs, who were on the waiting list as of July 1, 1999, would be served before any one who applied for services after that date. According to Respondent's policy, the only exceptions would be individuals who were determined to be in crisis. Respondent's proposed budget for the 2001-2002 fiscal year calls for additional funding for clients who applied for services after July 1, 1999. Respondent projects that 6,774 additional persons would become clients or be waiting for services by the end of the 2001-2002 fiscal year--a net increase in the caseload of 2,258 people annually. Until funding becomes available, these additional people will remain on a waiting list. Under the spending plan in effect at the time of the hearing, some individuals who were on the wait list as of July 1, 1999, still are not receiving services for which they are eligible. These persons are in the process of obtaining services and must be served before persons who became or will become eligible after July 1, 1999. Petitioner became eligible for developmental services in November 1999. He does not presently qualify for services funded by the Legislature in fiscal year 2000-2001 for three reasons: (a) he became eligible after July 1, 1999; (b) he applied for IFS services, a funding category for which the Legislature did not appropriate any new funds for new clients; and (c) he is not in crisis. Additionally, Petitioner is currently having his residential training needs met through the Conklin Center, Division of Blind Services.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent enter a final order affirming its decision that Petitioner remain on the list of clients waiting to receive developmental disability services. DONE AND ENTERED this 2nd day of February, 2001, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of February, 2001. COPIES FURNISHED: Michael Raymond 5268 Isabelle Avenue Port Orange, Florida 32127 Cathy McAllister, Esquire Department of Children and Family Services 210 North Palmetto Avenue, Suite 412 Daytona Beach, Florida 32114 Virginia A. Daire, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
The Issue The issue to be resolved in this proceeding is whether Petitioner should be denied continued licensure for her child care facility.
Findings Of Fact Petitioner is Idella Newell-Robinson. She was issued a child care license for Robinson's Christian Academy in February of 2003. Respondent is the State of Florida agency charged with the regulation of child care facilities and licensure issuance for those facilities. Respondent's representative advised Petitioner on numerous occasions of the need for Petitioner's facility to have someone on staff with “director's credentials.” Petitioner said she was going to attend classes, preparatory to receiving the required license, in October of 2003. By letter dated January 17, 2004, Respondent's representative advised Petitioner that a provisional license had been issued to Petitioner's facility because of the failure to comply with the requirement that a staff member have director's credentials no later than January 1, 2004. Petitioner was also advised that the provisional license would be amended to a regular license as soon as Respondent received documentation of Petitioner's receipt of the required director's credentials. A provisional license was issued to Petitioner on February 14, 2004, to extend through July 2, 2004. Respondent's letter of January 17, 2004, also provided Petitioner with complete advice regarding how to obtain the required director's credentials, as well as the admonition that failure to obtain the necessary credentials before expiration of the provisional license would result in the revocation of Petitioner's license. By letter dated July 2, 2004, Petitioner was advised that Respondent intended to revoke her license. The director's credentials for child care facilities may be obtained through what is called “the foundational level.” Petitioner had complied with five of the six requirements for director's credentials at the time of final hearing through this method. Petitioner had not received, however, a passing score on part one of the mandated child care introductory course, despite two attempts to pass that examination.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is RECOMMENDED: That a final order be entered documenting the denial of licensure for Petitioner's child care facility as a consequence of Petitioner's failure to acquire legally mandated qualifications. DONE AND ENTERED this 14th day of December, 2004, in Tallahassee, Leon County, Florida. S DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of December, 2004. COPIES FURNISHED: Robin Whipple-Hunter, Esquire Department of Children and Family Services Post Office Box 2417 Jacksonville, Florida 32231-0083 Idella Newell-Robinson Robinson's Christian Academy 2550 Mayport Road, Suite 8 & 9 Atlantic Beach, Florida 32233 Josie Tomayo, General Counsel Department of Children and Family Services Building Two, Box 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Paul Flounlacker, Agency Clerk Department of Children and Family Services Building Two, Box 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
