The Issue Should Petitioner suspend or revoke, restrict the practice, impose an administrative fine, reprimand or place on probation the Florida Certificates as Paramedics and/or Emergency Medical Technicians (EMTs) held by Respondents, based upon alleged violations of Sections 401.27(12) and 401.411(1)(a), (f) and (g), Florida Statutes (2000), as well as Florida Administrative Code Rule 64E-2.009(1)(b) (2000)?
Findings Of Fact Factual Admissions by Respondent Box Respondent, Steven R. Box, possesses Florida paramedic license/certificate number 200933. Respondent was issued Florida paramedic license/ certificate number 200933 on February 6, 2001. Respondent possesses Florida emergency medical technician license/certificate number 86759. Respondent was issued Florida emergency medical technician license/certificate number 86759 on October 18, 2000. Respondent's current mailing address is 308 Heron Lane, Monticello, Florida 32344. As a licensed/certified paramedic and emergency medical technician, Respondent is subject to the provisions and discipline of Chapter 401 of the Florida Statutes and the jurisdiction of the Florida Department of Health, Bureau of Emergency Medical Services. Respondent attended a paramedic program at Southwest Georgia Technical College (formerly Thomas Technical Institute) in Thomasville, Georgia, from January 2000 through December 2000. Michael (Mike) Taylor was Respondent's paramedic instructor at Southwest Georgia Technical College from January 2000 through December 2000. William Bates, Steven B. Thomas, and Matthew A. Williams attended the paramedic program at Southwest Georgia Technical College with Respondent from January 2000 through December 2000. Respondent was not certified or licensed as an EMT or paramedic by the time of submission of his EMT/Paramedic Certification Application on December 5, 2000. Respondent had not passed the National Registry of EMT's examination at the time of submission of his EMT/Paramedic Certification Application on December 5, 2000. Respondent was not certified as an EMT or paramedic by the National Registry of EMT's at the time of submission of his EMT/Paramedic Certification Application on December 5, 2000. The Statement of Good Standing states in part: I, the below named EMT/Paramedic, am requesting Florida certification based on training and current certification in the State of Georgia or by the National Registry of EMT's. Respondent completed the top portion of the Statement of Good Standing. Respondent returned the document to Michael Taylor. The document was (then) returned to Respondent. Time to review the document existed after it was returned. Respondent failed the National Registry Exam that he took on December 13, 2000. Respondent was notified by mail that he failed the December 13, 2000, National Registry of EMTs paramedic examination in January 2001. Respondent failed the National Registry Exam that he took on February 23, 2001. Respondent was notified by mail that he failed the February 23, 2001, National Registry Exam in March 2001. Although Respondent was not licensed/certified as a Paramedic or EMT in the State of Georgia and had not passed the National Registry of EMTs examination, Respondent took and passed the Florida EMS/Paramedic examination on January 26, 2001. Factual Admissions by Respondent Bates Respondent, William Bates, possesses Florida paramedic license/certificate number 201154. Respondent was issued Florida paramedic license/ certificate number 201154 on May 8, 2001. Respondent possesses Florida emergency medical technician license/certificate number 40414. Respondent's current mailing address is 76 Toby Lane, Monticello, Florida 32344. As a licensed/certified paramedic and emergency medical technician, Respondent is subject to the provisions and discipline of Chapter 401 of the Florida Statutes and the jurisdiction of the Florida Department of Health, Bureau of Emergency Medical Services. Respondent attended a paramedic program at Southwest Georgia Technical College (formerly Thomas Technical Institute) in Thomasville, Georgia, from January 2000 through December 2000. Michael (Mike) Taylor was Respondent's paramedic instructor at Southwest Georgia Technical College from January 2000 through December 2000. Steven B. Thomas, Stephen R. Box, and Matthew A. Williams attended the paramedic program at Southwest Georgia Technical College with Respondent from January 2000 through December 2000. Respondent was not certified or licensed as an EMT or paramedic by the State of Georgia at the time of submission of his EMT/Paramedic Certification Application on December 5, 2000. Respondent had not passed the National Registry of EMT's examination at the time of submission of his EMT/Paramedic Certification Application on December 5, 2000. Respondent was not certified as an EMT or paramedic by the National Registry of EMT's at the time of submission of his EMT/Paramedic Certification Application on December 5, 2000. The Statement of Good Standing states in part: I, the below named EMT/Paramedic, am requesting Florida certification based on training and current certification in the State of Georgia or by the National Registry of EMT's. Respondent completed the top portion of the Statement of Good Standing. Respondent returned the document to Michael Taylor. Respondent failed the National Registry of EMTs Exam that he took on February 23, 2001. Respondent was notified that he failed National Registry Exam. Although Respondent was not licensed/certified as a Paramedic or EMT in the State of Georgia and had not passed the National Registry of EMTs examination, Respondent took and passed the Florida EMS/Paramedic examination on April 27, 2001. Factual Admissions by Respondent Williams Respondent, Matthew Williams, possesses Florida paramedic license/certificate number 201152. Respondent was issued Florida paramedic license/ certificate number 201152 on April 10, 2001. Respondent possesses Florida emergency medical technician license/certificate number 80942. Respondent's current mailing address is 24701 Highway 301 North, Lawtey, Florida 32058. As a licensed/certified paramedic and emergency medical technician, Respondent is subject to the provisions and discipline of Chapter 401 of the Florida Statutes and the jurisdiction of the Florida Department of Health, Bureau of Emergency Medical Services. Respondent attended a paramedic program at Southwest Georgia Technical College (formerly Thomas Technical Institute) in Thomasville, Georgia, from January 2000 through December 2000. Michael (Mike) Taylor was Respondent's paramedic instructor at Southwest Georgia Technical College from January 2000 through December 2000. Steven Thomas, Steven R. Box, and William Bates attended the paramedic program at Southwest Georgia Technical College with Respondent from January 2000 through December 2000. Respondent was not certified or licensed as an EMT or paramedic by the time of submission of his EMT/Paramedic Certification Application on December 5, 2000. Respondent had not passed the National Registry of EMT's examination at the time of submission of his EMT/Paramedic Certification Application on December 5, 2000. Respondent was not certified as an EMT or paramedic by the National Registry of EMT's at the time of submission of his EMT/Paramedic Certification Application on December 5, 2000. The Statement of Good Standing states in part: I, the below named EMT/Paramedic, am requesting Florida certification based on training and current certification in the State of Georgia or by the National Registry of EMT's. Respondent completed the top portion of the Statement of Good Standing. Respondent returned the document to Michael Taylor. Respondent failed the National Registry Exam that he took on February 23, 2001. Respondent was notified that he failed the National Registry Exam. Although Respondent was not licensed/certified as a Paramedic or EMT in the State of Georgia and had not passed the National Registry of EMTs examination, Respondent took and passed the Florida EMS/Paramedic examination on March 30, 2001. Factual Admissions by Respondent Thomas Respondent, Steven Thomas, possesses Florida paramedic license/certificate number 201150. Respondent was issued Florida paramedic license/ certificate number 201150 on April 10, 2001. Respondent possesses Florida emergency medical technician license/certificate number 72189. Respondent's current mailing address is 575 South Waukeenah Street, Monticello, Florida 32344. As a licensed/certified paramedic and emergency medical technician, Respondent is subject to the provisions and discipline of Chapter 401 of the Florida Statutes and the jurisdiction of the Florida Department of Health, Bureau of Emergency Medical Services. Respondent attended a paramedic program at Southwest Georgia Technical College (formerly Thomas Technical Institute) in Thomasville, Georgia, from January 2000 through December 2000. Michael (Mike) Taylor was Respondent's paramedic instructor at Southwest Georgia Technical College from January 2000 through December 2000. William Bates, Steven R. Box, and Matthew A. Williams attended the paramedic program at Southwest Georgia Technical College with Respondent from January 2000 through December 2000. Respondent was not certified or licensed as an EMT or paramedic by the time of submission of his EMT/Paramedic Certification Application on December 5, 2000. Respondent had not passed the National Registry of EMT's examination at the time of submission of his EMT/Paramedic Certification Application on December 5, 2000. Respondent was not certified as an EMT or paramedic by the National Registry of EMT's at the time of submission of his EMT/Paramedic Certification Application on December 5, 2000. The Statement of Good Standing states in part: I, the below named EMT/Paramedic, am requesting Florida certification based on training and current certification in the State of Georgia or by the National Registry of EMT's. Respondent completed the top portion of the Statement of Good Standing. Respondent returned the document to Michael Taylor. Respondent failed the National Registry Exam that he took on February 23, 2001. Respondent was notified that he failed the National Registry of Exam. Although Respondent was not licensed/certified as a Paramedic or EMT in the State of Georgia and had not passed the National Registry of EMTs examination, Respondent took and passed the Florida EMS/Paramedic examination on March 30, 2001. Facts Admitted by Petitioner Paramedic instructor Mike Taylor solicited Robert Vick to sign said applications. Respondents completed the paramedic education program given at Southwest Georgia Technical College. Additional Facts The Florida Bureau of Emergency Medical Services never approved the program provided by Thomas Technical Institute, or Southwest Georgia Technical College in Thomasville, Georgia, to educate paramedics. Neither of the Georgia institutions received a Florida Certificate of Approval for their paramedic training program. None of the Florida officials affiliated with the Florida Bureau of Emergency Medical Services who testified at hearing are familiar with the details of the paramedic training received by Respondents in Georgia. As of May 17, 2005, the Georgia Department of Human Resources, Division of Public Health, Office of Emergency Medical Services/Trauma certified that none of the Respondents had ever received what Georgia refers to as an EMS license, for these purposes equivalent to a Florida Paramedic Certificate. Likewise, on May 23, 2005, the National Registry of Emergency Medical Technicians provided information establishing that Respondents were never nationally registered as paramedics. In the year 2000, Florida required non-Florida candidates seeking certification to become a Florida paramedic to submit two documents. The first document was referred to as an Emergency Medical Services Profile Data Form Paramedic Certification Application (the Profile Data Form). The second document was referred to as a Statement of Good Standing from State Certifying Agency or National Registry (the Statement of Good Standing). The title for the second document pertaining to state certifying agency was in relation to another state than Florida. In the instance where an out of state applicant made application to take the Florida exam for certification to become a paramedic, there was also the expectation that he or she attach a copy of the out of state certificate issued from the other state or a copy of his or her National Registry Certification as a paramedic, as a pre-condition to sitting for the Florida exam. In the event that some of the information called for in the application documents were missing, the proper course would be for the reviewing agency to return the application documents, with an explanation to the applicant of the deficiencies found within the application documents. David Jacobson is the Program Director of the Certification Unit within the Medical Quality Assurance Division of the Department of Health. He refers to the documentation necessary for non-Florida applicants to sit for the paramedic examination in Florida during the year 2000. There would need to be information about out-of-state certification provided through the Statement of Good Standing, together with a copy of the Georgia certification card that enabled the Respondents to work in the state of Georgia. This pertains to the need for a certificate number and the expiration date of the certificate, as well as a copy of the Georgia certification card. In the absence of this information, the Respondents should have been issued a deficiency letter asking for clarification of the missing information. The application documents provided by Respondents to support their request to take the Florida examination to become a Florida paramedic were processed through Shroeder Measurement Technology (Shroeder), a contracting agent for the Florida Bureau of Emergency Medical Services. Its status as agent called for Shroeder to follow legal requirements for application review, to include the return of deficient application documents with an explanation of the problems found in reviewing the materials. In pertinent part the Profile Data Form in effect in the year 2000 stated: Exam Purpose & Level Florida Exam & Certification Paramedic - Total Fee $85 * * * Professional Education (Attach copy of certificate and CPR or ACLS card.) Enter Training Program Code From Back of Form Name of Florida Training Program Competition Date MO DAY YEAR Out-of-State Certified: (Name of State) (Certificate Number) (Expiration Date) Nationally Registered: (National Registry Number) (Expiration Date) * * * E. HIV/AIDS Training 4 hours minimum inservice required. Professional Rescuer Card No. Hours Date Completed For EMT and two man CPR Card, for paramedic an ACLS card. (Issuing Organization) (Course Level) Renewal Date) OATH: I certify (A) I am free from addiction to alcohol or any controlled substance and that (B) I am free from any physical or mental defect or disease that might impair my ability to perform as an emergency medical technician or paramedic. I understand that any fraudulent entry may be considered as cause for rejection or subsequent voiding of certification. I understand that applications are public records and must be received 30 days prior to the exam date. Applicant Signature: Sworn to and subscribed before me this day of , . In relation to the Statement of Good Standing, it set forth: Applicants with out-of-sate certification are to complete Part I and mail this form to the issuing state certification board or National Registry. Part II is to be completed by the state certifying agency or National Registry, P.O. Box 29233, Columbus, OH 43229. The agency will then mail or fax this form to Florida EMS per instructions in Part III. Part I. To be completed by applicant: I, the below named EMT/paramedic, am requesting Florida Certification based on training and current certification in the State of or by National Registry of EMTs. Name: S.S#: Applicant's Current Address: Certificate Type: EMT-Basic Paramedic Certificate No. Other: Expiration Date Part II. To Be Completed by National Registry or State Certifying Agency. Please assist by verifying this individual is certified and in good standing according to your certification policies. Is the above certificate current and valid in the EMS Office or with the National Registry of EMTs? (State) Yes No If no, why not? Has the above certificate ever been revoked or suspended? Yes No If yes, please explain Has the above individual ever been convicted of a felony? Yes No Unknown Do you know of any reason certification in Florida should be denied? Yes No If yes, why? Verifying Person's Name: Title: Agency Name: Phone Number: Part III To be mailed to: Date: The return of this form is necessary before processing can be completed. Mail or Fax to Shroeder Measurement Technologies, Inc., 2494 Bayshore Blvd., Suite 201, Dunedin, FL 34698, or Fax to (727) 738-8522. Direct questions to EMS, 2020 Capital Circle Southeast, Bin C18, Tallahassee, FL 32399-1738, (850) 487-1911. Michael Taylor, who holds certification as a paramedic in Florida and Georgia, instructed Respondents in their paramedic training at Thomas Technical Institute. Before the Respondents enrolled in the training in early 2000, Mr. Taylor was approached by Respondent Bates, Chief of the Jefferson County Fire Rescue Unit. Chief Bates told Mr. Taylor that personnel within the fire rescue unit needed to undergo training in a paramedic training course that had flexible hours for attending the course. An arrangement was made in which the Respondents would attend a couple of days a week and the personnel within the fire rescue unit could leave school to respond to emergencies in Jefferson County, with the understanding that the course work that was missed could be made up later. Jefferson County, Florida, and Thomasville, Georgia, are in close proximity. Chief Bates and other Respondents were told by Mr. Taylor that since they were attending a non-Florida paramedic course that they would have to pass the National Registry Examination before they could sit for the Florida Paramedic examination to become certified as a paramedic in Florida. At that time successful passage of the National Registry Examination served as a basis for certification in Georgia, as well as registration with the United States Department of Transportation. The course undertaken in Georgia at that time was one in which the state of Georgia used the United States Department of Transportation guidelines in preparing the students to sit for the National Registry Examination. Mr. Taylor provided Respondents with copies of the Profile Data Form and Statement of Good Standing necessary to apply to sit for the Florida examination to become a paramedic. Mr. Taylor went over these forms with Respondents early on in 2000 when Respondents began their training in Georgia. Mr. Taylor instructed the Respondents to fill out a portion of the Statement of Good Standing early in the year 2000. They wrote certain information in Part I of the forms and turned the forms back in to Mr. Taylor. They wrote "Georgia" as their training location and place of certification, upon Mr. Taylor's instruction, while providing their names, social security numbers, addresses and checking the box for certificate type as "paramedic." At that time Respondents were not yet and never have been licensed in Georgia as paramedics. Mr. Taylor took the Respondents' Statements of Good Standing and had them signed by Robert D. Vick, Sr., of the Georgia Office of EMS. Mr. Vick was and is the Regional Program Director for that agency. He is an EMTCT, ACLS. Mr. Taylor was proceeding with the understanding that Mr. Vick had the authority to execute the documents. This is in relation to the portion of the Statement of Good Standing which is Part II. These arrangements with Mr. Vick were made in December 2000. Part II to the Statements of Good Standing were signed by Mr. Vick and dated December 8, 2000. He signed under his title as EMS Coordinator/DHR, Region 8 EMS Office/Georgia DHR. Mr. Taylor persuaded Mr. Vick to sign Part II of the Statements of Good Standing realizing that the Respondents were not certified in Georgia. Mr. Taylor persuaded Mr. Vick that Mr. Vick needed to sign the documents before the Respondents could take the Florida Paramedic Examination. Mr. Taylor made Mr. Vick aware that the Respondents had not taken the National Registry Examination when Mr. Vick signed Part II of the Statements of Good Standing for Respondents, contributing to the impression that Respondents were certified as Georgia paramedics. After Mr. Vick signed his name on Part II to the Statements of Good Standing, the documents were returned to the Respondents. Mr. Vick in his testimony verified the requirements for a person to obtain a Georgia paramedic certificate in the year 2000. Georgia used the United States Department of Transportation National Registry Examination as the test instrument for the Georgia certification. In addition to passing the Georgia Paramedic Course in advance of that examination, there was also the requirement for some paperwork in association with a reciprocity arrangement between the Georgia licensing authority and the United States Department of Transportation National Registry. As Mr. Vick recalls his conversation with Mr. Taylor concerning the signing of Part II to the Statements of Good Standing, Mr. Taylor told Mr. Vick that the Respondents had completed the Georgia Paramedic Course and were preparing to take the United States Department of Transportation National Registry Examination within a few days, to be followed by the Florida Paramedic Examination a few days after that. This meant, to Mr. Vick's understanding, the Florida examination was going to be taken at a time before the National Registry Examination results were made known to the Respondents. Mr. Taylor told Mr. Vick that Jefferson County desperately needed, what Mr. Vick refers to as ACLS folks on ambulances. Mr. Vick perceived that participation in this out-of-sequence preparation of necessary documents would speed up the opportunity for the Respondents to sit for the Florida examination and to be certified as paramedics in Florida. Mr. Vick executed Part II to the Statements of Good Standing in the portion that verified his name, title, agency name, phone number and date. Otherwise information imparted within Part II was the product of someone else. Other information in the Statements of Good Standing indicate current and valid Georgia certificates, never subject to discipline, held by a person never convicted of a felony and about whom nothing was known which should cause Florida to deny certification of the applicant. This latter information was contained in the Statement of Good Standing submitted by Respondents in support of their requests to take the Florida Paramedic Examination. This act by Respondents was contrary to the expectation in the documents that Georgia or the National Registry would mail or fax the documents to Shroeder. Although he did not provide all called for information within Part II, to the Statements of Good Standing, Mr. Vick realized that the Respondents did not have a current and valid Georgia Paramedic Certificate or recognition by the National Registry. Chief Bates of the Jefferson County Fire Rescue, in his testimony conceded the need to complete the paramedic training course in Georgia and pass the National Registry Examination as a participant in a non-Florida paramedic training program, before submitting his application to Florida to take the Florida Examination. He attended the training course in Georgia because he believed that it was impractical to work a fulltime job and attend the Tallahassee Community College paramedic training course. Chief Bates submitted the Profile Data Form and Statement of Good Standing as part of the process for obtaining a Florida paramedic certificate. Chief Bates remembers the Statement of Good Standing being returned to him in December 2000. He had the opportunity to read the contents of the Statement of Good Standing but did not. Chief Bates realized based upon remarks by Mr. Taylor that the Statement of Good Standing was part of the application to take the Florida examination to become a paramedic. Chief Bates submitted that Statement of Good Standing together with the Profile Data Form to support his request to sit for the Florida paramedic's examination. In reference to the Profile Data Form, Chief Bates filled out Section 1 through 6, but did not provide any information in response to Section 7, Professional Education, or Section 8, Professional Rescuer Cards. This form was signed by him under oath on December 5, 2000. In executing the form Chief Bates realized that he had a duty to provide truthful information. The application process leading to the examination session had been arranged through Shroeder. Chief Bates has no recollection of reviewing Section 401.27(12), Florida Statutes (2000), and he did not review Florida Administrative Code Rule 64E-2.009 in effect when he took the Florida examination, as these laws set out requirements for standing the Florida Examination. Matthew Williams had been employed by the Jefferson County Fire Rescue. He now is employed by the City of Jacksonville Fire Rescue. He attended the Thomas Technical Institute because it was geographically closer to his house than a Florida program. He understood that upon completion of the training to become a paramedic he had to take the National Registry Examination and fill out an application to sit for the Florida examination before becoming a paramedic in Florida. In January following receipt of the Statement of Good Standing, he filled in Part I. He returned the form to Mr. Taylor and next saw it before his graduation in December 2000. He had the opportunity to review the Statement of Good Standing but never did. In particular, he did not review the completed Part II within the Statement of Good Standing. Mr. Williams filled out the Profile Data Form in Sections 1 through 6. He did not provide information in Sections 7 and 8. In completing the Profile Data Form Mr. Williams signed his signature under oath. He along with the other Respondents in completing that form recognized, as the form states, "I understand that any fraudulent entry may be considered in this cause for rejection or subsequent voiding of certification." Steven Thomas is a Lieutenant firefighter paramedic with the Jefferson County Fire Rescue. He understood that he had to take and pass the written and practical parts of the National Registry Examination, to be followed by an application and passage of the Florida Examination before he could be certified as a Florida paramedic. The Florida Examination would follow the submission of an application to Florida. He attended his paramedic training in Georgia because it was close to where he lived. Lieutenant Thomas filled in information in early 2000 concerning the Statement of Good Standing Form, Part 1. The Statement of Good Standing was returned to him near the end of the school term. He did not review the contents of the Statement of Good Standing, although he was provided the opportunity to conduct a review. In executing the Profile Data Form, Lieutenant Thomas filled in information in Sections 1 through 6. He did not fill in information in Sections 7 and 8. He signed the form under oath on December 5, 2000. Lieutenant Thomas failed the National Registry Examination twice. Steven R. Box was employed by the Jefferson County Fire Rescue in 2000 and now works with the Tallahassee Fire Department as a firefighter/paramedic. He understood that to sit for the Florida Paramedic Examination he had to be certified by the National Registry. He understood that completion of the Statement of Good Standing was a necessary prerequisite for taking the Florida examination. When the Statement of Good Standing was filled out in Part 1 as described, Mr. Box gave it back to Mike Taylor to be returned to Mr. Box at the end of the year 2000. Once returned, Mr. Box glanced over the form and noticed that the form had been signed by someone else. That other person was Robert Vick. In filling out the Profile Data Form, Mr. Box made no entries in Sections 7 and 8. He had filled out Sections 1 through 6. He signed the form under oath on December 5, 2000. Mr. Box took the Profile Data Form and the Statement of Good Standing to Shroeder in Dunedin, Florida, at the end of December 2000.
Recommendation Upon consideration of the facts found and the conclusions of law reached, it is RECOMMENDED: That a final order be entered revoking the paramedic certificates held by Respondents, while dismissing the cases against Respondents Bates, Williams, and Thomas related to their EMT certificates. DONE AND ENTERED this 8th day of September, 2005, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS 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 8th day of September, 2005. COPIES FURNISHED: Brian J. Stabley, Esquire Assistant Attorney General Administrative Law The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Brandt Hargrove, Esquire Law Offices of Brandt Hargrove 2984 Willington Circle West Tallahassee, Florida 32309 Timothy M. Cerio, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue Whether, when the patient J.B. presented to the Emergency Department of Munroe Regional Medical Center (MRMC) on May 22, 1995, he then had an "emergency medical condition," as defined by Section 395.002(8)(a) F.S. Whether, when the patient J.B. presented to the Emergency Department of Munroe Regional Medical Center (MRMC) on May 22, 1995, MRMC provided to the patient appropriate "emergency services and care," including an appropriate "medical screening, examination and evaluation," as defined by Section 395.002(9) F.S., and as required by Section 395.1041 F.S., and if not, how shall MRMC be disciplined?
Findings Of Fact At all times material, J.B. was a 42 year old male employee of an Ocala music store. In that capacity, he had been moving pianos for years. As a result, he had experienced neck, shoulder and back pain off and on for years. The pain and stiffness was worst upon awaking in the mornings and frequently required two days' bed rest before he could return to work. In the week preceding Monday, May 22, 1995, J.B.'s neck and shoulder pain had intensified. On Friday, May 19, 1995, J.B. went to a walk-in clinic, CARE-ONE, because his primary care physician was out of town. He was examined by a physician; x-rays were taken; he was issued a soft cervical collar; and he was prescribed a muscle relaxer and pain medication, both of which are "scheduled" drugs. The CARE-ONE physician also advised him to see a neurosurgeon for further evaluation and treatment. Despite his use of the prescribed drugs, J.B.'s pain intensified further over the weekend, to the point he was weeping and vomiting on occasion. He also had new pain in his left arm. At all times material, Respondent MRMC in Ocala, Florida, was licensed as a Class I general hospital with an emergency department. MRMC's emergency department handles upwards of 40,000 patient visits annually. At 8:15 a.m. on Monday, May 22, 1995, J.B.'s wife, L.B., took him to the MRMC emergency department. The term, "triage", generally refers to a means of sorting and prioritization of patients based on a superficial initial examination to determine how rapidly they will be seen in a mixture of patients who have differentiated complaints. Emergency department Board-certified physicians established MRMC's medical triage protocols in 1989. In so doing, MRMC has melded the concept of initial patient evaluation and "triage" into one process, and has authorized registered nurses, among other health care professionals, to perform both functions. MRMC's emergency department staff numbers 75 FTEs at all times, plus physician and physician assistant components. Physicians are available on the premises 24 hours a day for any consultation that may be required. At all times material, Geraldine Sweeney was an MRMC Clinical III Emergency Department Triage Nurse. As such, she maintains 24 hours of continuing education units per years (twice the number required to maintain her R.N. license). She also regularly participates in in-service training in emergency department nursing. These courses regularly include neurological topics and she has encountered and assessed numerous neurological cases over her 16 years in MRMC's emergency department, six of them as triage nurse since MRMC established its dedicated triage system in 1989. Ms. Sweeney has both an associate of arts and an associate of science degree in nursing; is a fully licensed Registered Nurse; and has never had any disciplinary action taken against her license. She was accepted as an expert in hospital emergency nursing. At formal hearing, J.B. did not remember being seen by any health care professional at MRMC on May 22, 1995. His wife, L.B., was attending to registration procedures with an MRMC admittance clerk in a different room and was not present when J.B. was assessed at MRMC's emergency department on that date, but she knew he was taken to a different room by a female hospital employee whom L.B. presumed to be a nurse. Geraldine Sweeney, R.N., did not recognize J.B. at formal hearing. She has "triaged" at least 1,000 patients since May 22, 1995. However, despite these three witnesses' lapses in memory or lack of opportunity to observe and/or lack of independent recollection, MRMC's documentation for May 22, 1995, in Ms. Sweeney's handwriting and bearing her signature, shows that Ms. Sweeney is the only MRMC health care professional who performed its initial, and only, assessment of J.B. at MRMC on May 22, 1995. Ms. Sweeney's contemporaneous documentation of her examination of J.B. shows he arrived at MRMC's emergency department at 8:15 a.m. and was "triaged" at 8:15 a.m. She wrote down that subjectively, he presented with a "history of neck problems with spasms; now has pain into left arm; seen at CARE-ONE Friday; had x-rays; given valium and lortab; advised for neurosurgeon." His objective vital signs were recorded by Ms. Sweeney as, "temperature 36.4 C., pulse 62, respiration 20, blood pressure 130/75." No weight was recorded. The only other significant objective triage data Ms. Sweeney recorded was, "Wearing soft collar; ambulates well; grips equal." Ms. Sweeney classified J.B. according to MRMC's physician-established protocols as "Class I, not requiring immediate attention," and he was released from the MRMC emergency department at 8:25 a.m., just ten minutes after his arrival. At that time, he was provided with a written list of other treatment locations to which he could go, including CARE-ONE again, and his personal physician. This list did not name any other hospital emergency department. Richard S. Slevinski, M.D., is Board-certified in emergency medicine and is director of the emergency department at Baptist Hospital in Pensacola, Florida, which includes a Level II Trauma Center. He was accepted as an expert in emergency and general medicine. Dr. Slevinski and Nurse Sweeney testified that a loss of function is a significant phenomenon that should have been recorded in a proper evaluation. Ms. Sweeney testified that if J.B. had identified loss of function as a symptom to her or if she had discovered a loss of function during her examination, she would have noted that and followed up with additional tests, but J.B. did not subjectively describe loss of function and she did not objectively observe any loss of function. Dr. Slevinski and Nurse Sweeney testified that a change in function or location of pain, increase in intensity of pain or recent onset of pain are subjective indicators that should be recorded if related by the patient during an examination and evaluation. Ms. Sweeney testified that she would have recorded any of these subjective symptoms if J.B. had related them to her, but he did not. Nurse Sweeney also testified that none of the objective vital signs she recorded during her examination of J.B. on May 22, 1995 indicated severe or intense pain. This was corroborated by neurosurgeon Dr. Barry Kaplan. (See Finding of Fact 32) I accept Dr. Slevinski's expert opinion that as a medical physician, he has found that if a service was provided in an emergency department it should be documented, and that it is the duty of the emergency department professional who performs patient screenings, examinations and evaluations to inquire adequately of a patient to find out what is going on with him or her and to make a chart so that later someone else can read the chart and see what the examiner did, and I reasonably infer from this expert testimony that, absent some strong evidence to the contrary, if a service has not been documented, the service has not been performed. This analysis, however, does not support a finding that J.B. actually told Nurse Sweeney on May 22, 1995 that his overall pain or his left arm pain was newly onset, that his pain had intensified, or that his pain was more localized in his left arm. J.B. has described his pain as chronic or recurring over a long period of time in testimony and when he saw Dr. Kaplan, a neurosurgeon, on June 1, 1995 (see Findings of Fact 27, 29), and J.B. can remember nothing about what he told Nurse Sweeney on May 22, 1995. Therefore, this is a situation in which Nurse Sweeney's testimony about what J.B. did not tell her is unrefuted, rather than the classic situation, described by Dr. Slevinski, in which a patient testifies as to what symptoms he told a health care professional and the chart shows the health care professional failed to record what the patient said. However, upon the evidence as a whole, it is found that no full neurological evaluation of J.B. was done by anyone at MRMC; that Nurse Sweeney did not individually feel each of his fingers to ascertain if he had sensation and similar temperature in each; and that she did not administer any muscle resistance tests. Rather, she had J.B. perform a "grip test". This "grip test" is performed by having the patient lift and cross his arms and reach out to the examiner. It tests whether the patient is able to maneuver both his own hands forward and grab onto the examiner's fingers with equal pressure, thereby indicating lack of loss of arm function. The test permits skin to skin contact so that any loss of sensation in the patient's hands or any change or inequality of skin temperature in the patient's hands or digits can be noted by the examiner. Upon her education, training, and experience, Nurse Sweeney thereby determined that J.B.'s grips were equal and his skin was a normal temperature, indicating no loss of function, sensation, or failure in circulation. Dr. Slevinski testified that, if J.B. had presented his CARE-ONE x- rays to her, Ms. Sweeney should have had the CARE-ONE x-rays read by a qualified physician, preferably a neurologist. Ms. Sweeney denied that J.B. brought his x-rays with him to MRMC, stating that if he had done so, she would have recorded that on the assessment form and would have had them read by a qualified physician instead of just recording, "had x-rays," which she had meant to show that J.B. had had x-rays taken the Friday before at CARE-ONE. J.B.'s testimony is clear on this single point to the effect that he had his wife take him to get the CARE-ONE x-rays and had them with him at MRMC. Marion Community Hospital documented that J.B. had the CARE-ONE x-rays with him at that facility at 9:23 a.m. (See Findings of Fact 24-25) This is corroborative of J.B.'s testimony on this issue. I therefore find that Ms. Sweeney overlooked those available CARE- ONE x-rays as part of her evaluation of J.B. Dr. Slevinski opined that MRMC, through Nurse Sweeney, did not provide an adequate medical screening examination for J.B.'s presenting complaint on May 22, 1995 because he was not given an appropriately sophisticated neurologic assessment or examination of the involved extremity (left arm) by a physician, preferably a neurologist; because the CARE-ONE x-rays J.B. brought with him were not reviewed by a qualified person; and because his pain was not stabilized. Specifically, Dr. Slevinski faulted Ms. Sweeney's use of a "grips" examination instead of an examination of J.B.'s status of sensation, strength of fingers, or reflex capabilities. He opined that Ms. Sweeney's examination, as documented, was insufficient to rule out that J.B. had a condition that was going to cause him further damage. It was Dr. Slevinski's opinion that "triage", as generally understood by the community of health care professionals, without more, cannot constitute an adequate or appropriate medical screening, examination, and evaluation. In Dr. Slevinski's view, severe pain alone qualifies as an emergent or emergency condition until an adequate examination proves that it is not. However, Dr. Slevinski conceded that pain is highly subjective and is only an "emergency medical condition" if the absence of immediate medical attention could reasonably be expected to result in serious jeopardy to the patient's health, serious impairment to his bodily functions or serious dysfunction to his bodily organs or parts. Upon further questioning, Dr. Slevinski opined that in general, a medical screening examination or evaluation need not always be done by a physician; that it can be done by a nurse or even a psychological case worker in the appropriate circumstances; and that in some, but not necessarily all patient presentations, there is no reason a triage nurse, within the scope of her license, if authorized to do so by the hospital, cannot perform a medical screening examination simultaneously with triage, although that is not his preference and although that was not appropriate in this case or in all cases. Dr. Slevinski commented also that a failure to correctly diagnose and treat after an appropriate screening, examination, or assessment might subject a hospital or individual health care provider to civil liability but would not violate Chapter 395 F.S. After J.B., still in pain, had been returned from the examining room, that is, only after Nurse Sweeney had already finished her evaluation of him and determined that he did not have an emergency medical condition requiring further emergency treatment and care, and while J.B. was standing beside L.B. facing the administrative clerk in the registration area of the MRMC emergency department, L.B. handed her insurance card to the clerk. The clerk then told L.B. that J.B. could not be treated at MRMC because he did not have either a referral from his primary treating physician or a life-threatening condition. An argument ensued, and L.B. demanded to know where else she could get treatment for J.B. She then drove J.B. directly to Marion Community Hospital's emergency department upon the suggestion of MRMC's admissions clerk. J.B. was clocked-in at 9:23 a.m. at the emergency department of Marion Community Hospital a/k/a "Columbia" or "HCA", where he was kept for about five hours. He was examined by an in-house neurologist who performed a limited "hands on" physical examination and a neurological examination. His vital signs were taken. He was injected intramuscularly with 30 milligrams of toradol, a "scheduled" pain killer. He was observed and re-evaluated after several hours. Additional x-rays were taken and reviewed by a radiologist who also reviewed the CARE-ONE x-rays J.B. had brought with him. J.B.'s valium and lortab prescriptions were refilled. He was released from Marion's emergency department with instructions to call and schedule an MRI and also to see his own physician and a neurosurgeon. The only medical "treatment" J.B. received at Marion was for pain. The final result after Marion's extensive and expensive screening examination and evaluation was the same as had occurred at MRMC: that he was released because he had no emergency medical condition requiring further emergency medical treatment in that facility at that time. Barry Kaplan, M.D., is the Board-certified neurosurgeon who eventually performed successful surgery on J.B. Dr. Kaplan first saw J.B. in his office on July 1, 1995. The length of this visit is not clear on the record. J.B.'s general description to him was that of chronic pain. Apparently J.B. had gone back to work for part of the time between May 22, 1995 and seeing Dr. Kaplan on June 1, 1995. On June 1, 1995, Dr. Kaplan did a complete neurologic examination, which included testing J.B.'s muscle actions against resistance. He also felt all of J.B.'s fingers, individually, while asking about sensation in each. These tests revealed only mild weakness or dysfunction in the bicep muscle of J.B.'s left arm and only mild numbness or dysfunction in his left arm. Dr. Kaplan also reviewed an MRI taken of J.B. on May 31, 1995 which demonstrated a chronic arthritic condition of J.B.'s neck, with bone spurs pressing the nerves running to his left arm and spinal cord, which resulted in J.B.'s pain. In Dr. Kaplan's opinion as an expert in neurosurgery and general medicine, J.B.'s condition on June 1, 1995, could not have developed measurably within the time elapsed since his visit to the MRMC emergency department on May 22, 1995 or even within the last month, because on June 1, 1995, J.B. had no acute symptoms of sufficient severity that he then had immediate need of treatment, nor was there any reasonable expectation that lack of treatment could be expected to result in serious jeopardy to his health, serious impairment to his bodily functions or serious dysfunction to his bodily organs or parts. On June 1, 1995, Dr. Kaplan believed that J.B.'s condition could be left alone for another four to six months before any permanent injury would occur to his spinal cord, but due to J.B.'s intense and chronic pain and relative youth, he recommended elective surgical removal of certain discs. Dr. Kaplan did the recommended elective surgery at J.B.'s request on July 12, 1995 at MRMC. J.B. has been pain-free since recovery. Dr. Kaplan's opinion also was that none of the objective vital signs recorded by Nurse Sweeney on May 22, 1995 would be consistent with severe pain. Although he was aware that Nurse Sweeney did not record giving a numbness test, weakness test, or reviewing x-rays on May 22, 1995, Dr. Kaplan also opined that, "Unless somebody has quadriparesis or complete dysfunction of a part from a cervical disc problem, then it is not an emergent condition . . . . Unless they have severe weakness or numbness to go along with the pain, there's no indication for emergency intervention." Dr. Kaplan's opinion also was that no serious jeopardy could have been incurred by J.B. not receiving further emergency services and treatment beyond MRMC's initial assessment on May 22, 1995. No health care witness set a minimum time necessary to conduct an appropriate examination. All indicated that the time involved and appropriate tests varied from case to case.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order dismissing the administrative complaint herein. RECOMMENDED this 17th day of December, 1996, at Tallahassee, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 17th day of December, 1996. COPIES FURNISHED: Thomas W. Caufman, Esquire Agency for Health Care Administration 7827 North Dale Mabry Highway No. 100 Tampa, Florida 33614 Thomas D. Watry, Esquire 1500 Marquis Two Tower 285 Peachtree Center Avenue Northeast Atlanta, Georgia 30303 Douglas M. Cook, Director Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308-5403 Jerome W. Hoffman, Esquire Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308-5403
The Issue The issue is whether either respondent bore a relationship to Petitioner, as described in Section 760.10, Florida Statutes, that confers jurisdiction upon the Florida Commission on Human Relations to investigate Petitioner's claims of racial discrimination under the Florida Civil Rights Act of 1992, Sections 760.01-760.11 and 509.092, Florida Statutes.
Findings Of Fact Petitioner has been a registered nurse licensed in Florida for 14 years. Her specialty is intensive care. Seeking advancement within the profession of nursing, Petitioner decided to pursue certification as a Certified Registered Nurse Anesthetist (CRNA). A CRNA has advanced training and education in anesthesia and passes a national certification examination, which is administered by neither Respondent. Upon passing the examination and meeting other requirements, an applicant is entitled to certification from the Council on Certification of Nurse Anesthetists. After obtaining this certificate and completing other requirements, such as financial responsibility, the applicant is eligible for certification by the Florida Board of Nursing as an advanced registered nurse practitioner in anesthesiology, pursuant to Florida Administrative Code Rule 64B9-4.002. In Florida, a CRNA is authorized to administer anesthesia in in- and out-patient settings and bears significant responsibilities for the safety of anesthetized patients. Petitioner enrolled at Barry University to fulfill the educational requirements for certification. Barry University is a private institution headquartered in Miami Shores and is one of several institutions in Florida that offer a program to satisfy the educational requirements for CRNA certification. The 28-month program at Barry University leads to a master of science degree in anesthesiology. A major component of the educational program is clinical practice. The clinical practice requires a student to perform clinical responsibilities, under supervision, with an anesthesiology group. At the time in question, Barry University maintained relationships with different anesthesiology groups in most major urban areas in Florida. Petitioner began the Barry University program in January 2005 and withdrew from the program in May 2006. She chose to take her clinical training in Orlando, where Wolverine Anesthesia Consultants accepted Barry University students for clinical practice. Wolverine Anesthesia Consultants served various hospitals forming part of the Orlando Regional Healthcare System. Petitioner began the clinical portion of the program in May 2005. No cash is exchanged between Barry University and Wolverine Anesthesia Consultants as part of the arrangement described above. The obvious benefit for Barry University, whose program is not inexpensive, is that Wolverine's supervision of its students in the clinical practice allows Barry to offer a comprehensive anesthesiology program that qualifies its students to sit for the CRNA examination. The obvious benefits to Wolverine Anesthesia Consultants are access to newly certified CRNAs, who are in high demand, and the ability to recruit the students likeliest to excel within the profession. It is less clear, from the present record, if Wolverine is able to bill for the services of more advanced students. From time to time, Wolverine provides Barry with financial support, such as a stipend so that a financially needy student may attend an out-of-town conference, as the tuition charged by Barry does not cover the cost of the program or incidental student costs. The economic relationship between the respondents is only of relevance, however, in providing the background from which to assess the economic relationship between the respondents, on the one hand, and Petitioner--and, more specifically, the value that flows to Petitioner from one or both respondents. Clearly, the educational and clinical programs provide educational value, and potential economic value, if and when certification is obtained, but, as explained in the Conclusions of Law, the key question is what, if any, economic value flows to Petitioner from either respondent during her relationship with each respondent. Neither respondent paid Petitioner any income, compensation, or other benefit, directly or indirectly. Neither respondent ever provided Petitioner with an IRS W-2 statement or Form 1099, as evidence of payments to an employee or independent contractor. She never received compensation of any type from either respondent, nor did she receive an IRS Form 1099, reflective of the payment of compensation to an independent contract. Petitioner never received any other employment- related benefits from either respondent, such as health insurance or retirement benefits. Neither respondent provided Petitioner with housing or a housing allowance. Wolverine did not insure Petitioner on its medical malpractice insurance policy. Neither respondent covered Petitioner under workers' compensation. Wolverine Anesthesia Consultants required Petitioner to sign her name on any anesthesia record pertaining to a case in which she was involved. When Petitioner was required, due to the needs of a particular patient, to work in excess of her scheduled time, she was entitled, from Barry University, to "comp time," which means only that she could receive credit for the additional time worked when setting a subsequent schedule. However, apart from a grant from Barry University as part of her financial-aid package, Petitioner never received any financial benefit from either respondent. In addition to the occasional stipend, which Petitioner does not appear to have received, Wolverine Anesthesia Consultants provided minor items, such as lunches for meetings of the interns, which Petitioner may not have attended, and $50 Christmas gift certificates to all interns, including Petitioner. In no way does the record support an interpretation of these minor acknowledgements or courtesies as compensation because Wolverine is under no obligation to provide them, no relationship exists between the recipient of the item and the amount of time worked, and no relationship exists between the value of the item or stipend and the amount of time worked by the student receiving the item or stipend. Although Barry University administers a comprehensive test to all candidates for a master's degree in anesthesiology, passage of which is required for a degree, Petitioner withdrew from the program prior to the administration of this test. She withdrew essentially due to reports from Wolverine to Barry University that she had failed to make adequate progress in the clinical program.
Recommendation It is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the petitions of Petitioner in these two cases. DONE AND ENTERED this 1st day of June, 2007, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 1st day of June, 2007. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Andrea Bateman, Esquire 1999 West Colonial Drive Orlando, Florida 32804 Cecil Howard, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Susan T. Spradley, Esq. Deborah L. La Fleur, Esq. GrayRobinson, P.A. 301 East Pine Street, Suite 1400 Orlando, Florida 32801 John A. Walker, General Counsel Barry University Division of Legal Affairs and Human Resources LaVoie Hall, Office 209 11300 Northeast Second Avenue Miami Shores, Florida 33161
The Issue Whether the license of Respondent should be suspended, revoked, or whether the Respondent should be otherwise disciplined.
Findings Of Fact Upon consideration of the evidence introduced and the testimony elicited, the following facts are found: Am administrative complaint was filed against Respondent Ponte by the Petitioner, Florida State Board of Nursing, on May 26, 1978 seeking to place on probation, suspend or revoke the LPN License No. 38103-1 held by Respondent Beverly Ceraldi Ponte. The complaint was amended at the public hearing to delete allegation number 5. "Respondent, while being searched at the women's annex of the jail, was found to be in possession of one glass vial of promethazine, a prescription drug." The complaint alleged that the Respondent, on several occasions, signed out for controlled narcotics for patients in her care and failed to properly account for the disposition of said narcotics; that Respondent converted a narcotic controlled substance to her own use and admitted to Dade County Police officers the theft of the drug; and that Respondent had in her possession at the time of her arrest a large quantity of syringes (tubex of from 50-75 milligrams of demerol) consisting of a total of 24, of which 7 were empty. The Respondent Beverly Ponte, a Licensed Practical Nurse, was employed at the Miami Heart Institute on January 16, 1978. On that date she signed out for a controlled narcotic, demerol, the generic term being meperedine, for four patients in her care. The medication sheets for the four patients failed to show that demerol or meperedine had been administered to the patients, and no disposition of the narcotics was shown by Respondent. On or about April 7, 1978 Beverly Ponte, the Respondent, was employed at Palmetto General Hospital in Hialeah, Florida. The evening supervisor, a Registered Nurse, was called at about 10:30 p.m. by one of the staff nurses to examine a narcotic sheet kept for patients under the care of the Respondent Ponte, the medication nurse on the shift that evening. The Vice President and Director of Nursing Service was then called and the police were notified that there was an apparent narcotic problem on the floor of the hospital. The police and the director questioned the Respondent. She was searched and on her person was found 24 syringes (tubexes or pre-loaded syringes) of the type used by the hospital. Respondent admitted that she had taken drugs that evening and could not tell the director which of the patients under her care had had medication. The Respondent was arrested and handcuffed. Thereafter an information was filed in the Eleventh Judicial Circuit Court in and for Dade County, Florida charging Respondent with possession of a controlled substance (meperedine) and charged with a count of petit larceny. The Respondent entered a plea of nolo contendre and was found guilty of possession of controlled substance and petit theft and was placed on probation for a period of eighteen months, beginning May 2, 1978, with a special condition that the Respondent not seek employment where she personally had access to narcotic drugs and to also complete the outreach program which is a drug rehabilitation program. The proposed order of the Respondent has been considered and each proposed fact treated herein. Evidence as to the adherence to the condition of probation, the present employment of Respondent, and whether Respondent should be allowed to sit for nursing license examination is insufficient and no finding is made in regard thereto. No memorandum or proposed order was submitted by the Petitioner.
Recommendation Suspend the license of Respondent Ponte. DONE and ORDERED this 21st day of November, 1978, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Julius Finegold, Esquire 1107 Blackstone Building Jacksonville, Florida 32202 Carl L. Masztal, Esquire Suite 806 Concord Building 66 W. Flagler Street Miami, Florida Norman Malinski, Esquire 2825 South Miami Avenue Miami, Florida Geraldine B. Johnson, R.N. Investigation and Licensing Coordinator State Board of Nursing 6501 Arlington Expressway, Building B. Jacksonville, Florida 32211 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE FLORIDA STATE BOARD OF NURSING IN THE MATTER OF: Beverly A. Ceraldi Ponte 3500 S. W. 47th Avenue CASE NO. 78-1142 West Hollywood, Florida 33023 As a Licensed Practical Nurse License Number 38103-1 /
The Issue The issue for determination is whether Respondent committed the offense set forth in Petitioner's letter of agency action dated March 9, 2012, and, if so, what action should be taken.
Findings Of Fact At all times material hereto, New Life was issued individual Medicaid provider number 140680900. At all times material hereto, New Life was enrolled as an assisted living facility. At all times material hereto, New Life had a valid Medicaid Provider Agreement with AHCA (Agreement). Under the Agreement, New Life was authorized to provide assistive living services to Medicaid recipients. The Florida Medicaid Assistive Care Services Coverage and Limitations Handbook, effective July 2009, hereinafter Handbook, provides, among other things, requirements of Medicaid home health services providers and sets forth pertinent Medicaid policies and service requirements. The Handbook is provided to each Medicaid provider upon enrollment into the Medicaid program and is available online. Each provider is expected and presumed to be familiar with the Handbook. The Handbook was incorporated by reference into rule 59G-4.025, Assistive Care Services. No dispute exists that, at all times material hereto, New Life was an assistive care services provider as defined by the Handbook. The Handbook provides in pertinent part: Recipients receiving Assistive Care Services must have a complete assessment at least annually . . . or sooner if a significant change in the recipient's condition occurs . . . . An annual assessment must be completed no more than one year plus fifteen days after the last assessment. An assessment triggered by a significant change must be completed no more than fifteen days after the significant change. The assessment for a resident of a ALF . . . must be completed by a physician or other licensed practitioner of the healing arts (Physician Assistant, Advanced Registered Nurse Practitioner, Registered Nurse) acting within the scope of practice under state law, physician assistant or advanced registered practitioner. * * * The assessment for ALF [assisted living facility] residents must be recorded on the Resident Health Assessment for Assisted Living Facilities, AHCA Form 1823. * * * Along with the annual assessment requirement, all recipients receiving ACS [Assistive Care Services] must have an updated Certification of Medical Necessity for Medicaid Assistive Care Services, AHCA- Med Serv Form 035, July 2009, signed by a physician or other licensed practitioner of the healing arts (Physician Assistant, Advanced Registered Nurse Practitioner, Registered Nurse) and the Resident Service Plan for Assistive Care Services, AHCA-Med Serv Form 036, July 2009, completed and available in the recipient's case file at the facility. * * * Every ACS recipient must have a service plan completed by the ACS service provider. The Resident Service Plan for Assistive Care Services, AHCA-Med Serv Form 036, July 2009, shall be used for each recipient receiving ACS. The form must be included in the recipient's case file at the facility. The ALF, RTF [residential medical facility] and AFCH [adult family care home] are responsible for ensuring the service plan is developed and implemented. * * * The Resident Service Plan for Assistive Care Services (AHCA-Med Serv Form 036) must be completed within 15 days after the initial health assessment or annual assessment, be in writing and based on information contained in the health assessment. . . . * * * A new service plan is required on an annual basis or sooner if a significant change in the recipient's condition occurs. The new service plan must be completed no more than 15 days after the annual assessment or an assessment because of a significant change in the recipient's condition. * * * In addition to records required by the applicable licensure standards, ACS records that must be kept include: Copies of all eligibility documents; Health Assessment Forms, AHCA Form 1823 . . .; Certification of Medical Necessity for Medicaid Assistive Care Services, AHCA-Med Serv Form 035; The Resident Service Plan for Assistive Care Services, AHCA-Med Serv Form 036; and The Resident Service Log, AHCA-Med Serv Form 037. This documentation must be maintained at the facility, kept for at least five years, and be made available to the Agency for Health Care Administration monitoring or surveyor staff or its designated representative, upon request. . . . * * * ACS documentation may be in electronic format. The original, signed . . . documents must be kept in the recipient's case file in the facility . . . for audit, monitoring and quality assurance purposes. . . . Handbook at P 2-7 through 2-11. AHCA's investigator performed a site visit at New Life on December 8, 2011. The investigator reviewed case files of residents for the service-period covering January 1, 2011, through November 30, 2011 (service-period). AHCA's investigator found deficiencies in the case files of seven residents at New Life: M.B.; R.F.; E.H.; R.J.; I.M.; K.L.; and J.S. Additional documents, not contained in the case files during the site visit, were provided subsequent to the site visit. Regarding Resident M.B., the Health Assessment and the Resident Service Plan were dated August 17, 2010, which was after the service-period; and the Certification of Medical Necessity was dated March 28, 2012, which was not within the service-period and after the site visit. The evidence demonstrates that the case file of Resident M.B. lacked the Health Assessment, Resident Service Plan, and Certification of Medical Necessity for the service- period. As to Resident R.F., the Health Assessment was dated January 1, 2011, which was within the service-period but not up- to-date; the Resident Service Plan was up-to-date; and the Certification of Medical Necessity was dated March 1, 2012, which was not within the service-period and after the site visit. The evidence demonstrates that the case file of Resident R.F. lacked the Health Assessment and Certification of Medical Necessity for the service-period. Regarding Resident E.H., the Health Assessment was dated January 24, 2011, and was up-to-date; the Resident Service Plan was not provided; and the Certification of Medical Necessity was dated September 27, 2002, with no more recent Certification of Medical Necessity. The evidence demonstrates that the case file of Resident E.H. lacked the Resident Service Plan and Certification of Medical Necessity for the service-period. As to Resident R.J., the parties stipulated that the Health Assessment was up-to-date; the Resident Service Plan was not provided; and the Certification of Medical Necessity was dated February 29, 2012, which was not within the service-period and after the site visit. The evidence demonstrates that the case file of Resident R.J. lacked the Resident Service Plan and Certification of Medical Necessity for the service-period. Regarding Resident I.M., the Health Assessment and the Resident Service Plan were up-to-date; and the Certification of Medical Necessity was dated March 1, 2012, which was not within the service-plan and after the site visit. The evidence demonstrates that the case file of Resident I.M. lacked the Certification of Medical Necessity for the service-period. As to Resident K.L., the Health Assessment was dated March 1, 2012, which was not within the service-period and after the site visit; the Resident Service Plan was not provided; and the Certification of Medical Necessity was provided, but the date as to the year was unintelligible even though the month and day were intelligible, i.e., March 1. The evidence demonstrates that the case file of Resident K.L. lacked the Health Assessment, Resident Service Plan, and Certification of Medical Necessity for the service- period. Regarding Resident J.S., the Health Assessment was dated August 22, 2009, which was not within the service-period; the Resident Service Plan was not provided; and the Certification of Medical Necessity was dated February 29, 2012, which was not within the service-period and was after the site visit. The evidence demonstrates that the case file of Resident J.S. lacked the Health Assessment, Resident Service Plan, and Certification of Medical Necessity for the service period. The Director and owner of New Life is Ethel Newton. Ms. Newton has been the Director and owner for the past 13 years. She was not familiar with the Health Assessment form, the Resident Service Plan form, or the Certification of Medical Necessity form. Ms. Newton advised AHCA's investigator that she was not familiar with the forms and admitted same at the hearing. Ms. Newton historically depended upon the assistance of the Department of Children and Family Services (DCF) to complete any required forms. She depended upon DCF until 2005 when DCF closed its local office which had been assisting her. After DCF closed its local office, Ms. Newton depended upon the residents' case managers at New Horizons, an agency where the residents' physicians are located, to complete any required forms. Five of the seven residents had case managers at New Horizons; J.S. and E.H. did not have case managers at New Horizons. E.H. is no longer a resident at New Life. Ms. Newton is willing to cooperate with AHCA and do whatever it takes to have the required forms completed timely and correctly. The evidence does not demonstrate that Ms. Newton intentionally failed to complete the required forms. None of the seven residents were harmed as a result of the deficiencies in the documentation. No evidence was presented demonstrating that New Life has any prior administrative sanction or penalty. No evidence was presented demonstrating that New Life has any prior violations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order: Finding that New Life Assisted Living, Inc., d/b/a New Life Assisted Living Facility, violated Florida Administrative Code Rule 59G-9.070(7)(e) by failing to have in the case files of Resident M.B., Resident K.L., and Resident J.S. a Health Assessment, Resident Service Plan, and Certification of Medical Necessity for the service-period covering January 1, 2011, through November 30, 2011; by failing to have in the case file of Resident R.F. a Health Assessment and Certification of Medical Necessity for the service-period covering January 1, 2011, through November 30, 2011; by failing to have in the case file of Resident E.H. and Resident R.J. a Resident Service Plan and Certification of Medical Necessity for the service-period covering January 1, 2011, through November 30, 2011; and by failing to have in Resident I.M.'s case file a Certification of Medical Necessity for the service-period covering January 1, 2011, through November 30, 2011; Requiring New Life Assisted Living, Inc., d/b/a New Life Assisted Living Facility to enter into a corrective action plan; and Imposing a fine against New Life Assisted Living, Inc., d/b/a New Life Assisted Living Facility in the amount of $1,750.00. S DONE AND ENTERED this 14th day of November, 2012, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 14th day of November, 2012.
