The Issue Whether the Petition for Relief from an unlawful employment practice was timely filed with the Florida Commission on Human Relations. Whether the Division of Administrative Hearings has jurisdiction to conduct a formal hearing under the provisions of Section 120.57(1), Florida Statutes, if the Petition was not timely filed.
Findings Of Fact On December 15, 1994, the Florida Commission on Human Relations (FCHR) transmitted to the Division of Administrative Hearings (DOAH) a Petition for Relief from an Unlawful Employment Practice, together with all other "pleadings and jurisdictional papers heretofore filed in this proceeding." The pleadings and papers transmitted by FCHR show that Petitioner filed a Charge of Discrimination with FCHR on November 2, 1993, charging an unlawful employment practice by Respondent in connection with her lay off on October 29, 1992. On October 21, 1994, the FCHR concluded its investigation into the matter and issued its determination of No Cause to believe that an unlawful employment practice has occurred. Notice of that determination was mailed to Petitioner and Respondent on October 21, 1994 by regular mail. The Notice of Determination of No Cause served on Petitioner included the following statement: Complainant may request an administrative hearing by filing a PETITION FOR RELIEF within 35 days of the date of this NOTICE OF DETERMINATION: NO CAUSE. A Petition for Relief form is enclosed with Complainant's notice. It may be beneficial to seek legal counsel prior to filing the petition. If the Complainant fails to request an admini- strative hearing within 35 days of the date of this notice, the administrative claim under the Florida Civil Rights Act of 1992, Chapter 760, will be dismissed pursuant to Section 760.11, Florida Statutes (1992). Counsel for Petitioner, George T. Paulk II, received the Notice of Determination on behalf of Petitioner and prepared the petition to be "filed" with the FCHR. On November 25, 1994, 35 days after the Notice was mailed, Counsel for Petitioner transmitted to the FCHR her Petition for Relief, requesting an administrative hearing. The petition was submitted on the form provided by the FCHR. The petition was sent by regular U.S. Mail. The Petition for Relief was filed with the FCHR on November 29, 1994, 39 days after the Notice of Determination was issued. The FCHR transmitted the pleadings to the Division of Administrative Hearings for further proceedings. At the same time of the transmittal to Division of Administrative Hearings, FCHR issued a notice of the petition to Respondent advising it of the requirement to file an answer to the Petition for Relief. Respondent timely filed its answer with affirmative defenses, including the first affirmative defense that "Petitioner failed to file her petition within the time allowed by law." Respondent also filed a separate Notice to Dismiss raising the same issue. The Petition for Relief was deposited in the mail on Friday, November 25, 1994, the day after Thanksgiving which is an official state holiday. The next business day was Monday, November 28, 1994.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered dismissing with prejudice the Petition for Relief in Division of Administrative Hearings' Case No. 94-6976 and FCHR Case No. 94-7490, for failure to timely file the Petition. DONE AND ENTERED this 29th day of March, 1995, in Tallahassee, Florida. DANIEL M. KILBRIDE 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 29th day of March, 1995.
The Issue The issue is whether the medical license of Ahmed M. Elmariah, M.D., should be revoked or otherwise penalized based on the acts alleged in the Administrative Complaint.
Findings Of Fact Ahmed M. Elmariah is a licensed physician in Florida, holding license number ME 0027974 issued February 11, 1976. Dr. Elmariah practices in Panama City, Florida, at 1018 Harrison Avenue. Patient E.G. saw Dr. Elmariah during April or May, 1988, and thereafter until July 18, 1988. On July 18, 1988, at approximately 1:00 p.m., E.G. called Dr. Elmariah's office and requested that his medical records be sent to another doctor. He was told to come in and sign a release form that afternoon. At about 4:30 p.m. that day, E.G. went to Dr. Elmariah's office and was told by the office person, Lisa, that the medical records would not be sent because Dr. Elmariah had instructed that the records not be released. E.G. then verbally requested that the records be given to him. The office personnel refused to give him the records. E.G. talked to Dr. Elmariah personally and he would never give a reason for his refusal to release E.G.'s medical records. E.G. finally filed a replevin action and filed a complaint with DPR. DPR Investigator William Taylor attempted to serve a subpoena for E.G.'s records. After several attempts by DPR to serve the subpoena were futile, the Sheriff's Office served the subpoena on November 16, 1988. The subpoena directed that the medical records of E.G. be made available for inspection and copying by a DPR Investigator at Dr. Elmariah's office on November 22, 1989. Mr. Taylor called Dr. Elmariah on November 22, 1988, to make sure that the doctor was going to honor the subpoena. Dr. Elmariah's wife said the records had been taken to Tallahassee on November 21, 1989, and would not be available to Mr. Taylor. Mr. Taylor was also told that Dr. Elmariah would not be in his office to speak to Mr. Taylor. Mr. Taylor checked with DPR in Tallahassee and determined that the records had not been delivered. He then called Dr. Elmariah's office again and was told that Dr. Elmariah was in, but would not speak to him. Mr. Taylor was told that Dr. Elmariah said that the documents would not be available and the subpoena would not be honored. Dr. Elmariah never furnished the requested medical records of E.G. and the subpoena was never honored. Dr. Elmariah has been the subject of disciplinary action by the Board of Medicine in the past. On October 14, 1988, the Board of Medicine issued its Final Order in DOAH Case No. 86-4527 (DPR Case Nos. 0053824 and 0057164). The Final Order was filed on October 24, 1988, with the Department Clerk. The Final Order suspended Dr. Elmariah's license to practice medicine in the State of Florida for at least one year and conditioned reinstatement on Dr. Elmariah's appearance in front of the Board of Medicine to demonstrate his ability to safely engage in the practice of medicine. These two previous cases involved Dr. Elmariah's attempts to get hospital privileges by a pattern of fraudulent misrepresentations to hospitals. Dr. Elmariah was served a copy of the Final Order by certified mail on November 4, 1988. On November 5, 1988, DPR Investigator Alfred Clum went to Dr. Elmariah's office to serve a subpoena and to pick up Dr. Elmariah's license pursuant to the suspension order. Mr. Clum was first told that Dr. Elmariah was in the office. After Mr. Clum identified himself and the purpose for his visit, he was told that Dr. Elmariah was not in and that he would not see anyone without an appointment. The office person, Lisa Sims, refused to accept the subpoena and the suspension documents. On November 8, 1988, DPR Investigator Paul Bratton went to Dr. Elmariah's office to deliver a letter from Mr. Taylor regarding the suspension. He arrived at 9:52 a.m. and found a note on the door saying the office was closed. The door was open, so Mr. Bratton entered the office. He served the suspension documents on the woman at the desk. She tried to get him to take the documents back and he refused. She refused to give her name. When he left, the woman followed him to the door and threw the documents out the door and down the steps. On November 16, 1988, Mr. Clum returned to Dr. Elmariah's office to pick up his license. He was told that Dr. Elmariah was not there. He tried to leave the documents with the receptionist, but she refused to accept them. He left the documents, including the Final Order, on the woman's desk. Dr. Elmariah filed an Emergency Motion to Stay Final Order with the Board of Medicine. The Board of Medicine considered the Emergency Motion to Stay Final Order on December 3, 1988. Dr. Elmariah was advised by letter dated November 30, 1988, that the meeting would occur for consideration of the motion. Further, the November 30, 1988, letter advised Dr. Elmariah that "unless and until you have an order from the Court or from the District Court of Appeal granting you a stay, your license to practice medicine is suspended. Continuing to practice medicine on a suspended license could result not only in additional disciplinary proceedings against your license, but to criminal penalties as well." After consideration at its December 3, 1988, meeting, the Board of Medicine denied the Motion to Stay Final Order. The order denying the stay was entered on December 20, 1988. Dr. Elmariah then filed several more motions-- Verified Motion for Rehearing and Reconsideration of Order on Motion to Stay the Final Order; Verified Motion and Affidavit for Disqualification of Attorney Daniel and All Participating Attorneys for Petitioner; and Verified Petition and Motion for Rehearing and Reconsideration and to Rescind, Relieve from and/or Modify Final Order. These motions were considered by the Board at its February 4, 1989, meeting and all were denied by written order dated March 25, 1989. Dr. Elmariah filed a Motion for Stay with the District Court of Appeal, First District, on April 6, 1989. The Court denied the motion for stay by written order dated May 31, 1989. Patient L.E. was a patient of Dr. Elmariah's during 1988 and 1989. L.E. saw Dr. Elmariah during January, February, and March, 1989, while Dr. Elmariah's license was suspended. Dr. Elmariah never told L.E. that his license was suspended and he continued to see L.E. as a patient at his office. Patient W.W. was a patient of Dr. Elmariah's and last saw the doctor in February or March, 1989. The visits to Dr. Elmariah, at his office, were regularly scheduled visits at two week intervals. Dr. Elmariah never told this patient that his license was suspended. Patient G.L.M. was also a patient of Dr. Elmariah at his office in Panama City. He saw Dr. Elmariah on December 15 and 22, 1988, and January 19, 1989. Dr. Elmariah never told him that his license was suspended. On December 13, 1988, Dr. Elmariah was arrested for contempt and brought before the Honorable Thomas R. Ellinor, County Court Judge, in the replevin action filed by E.G. to get his medical records. The transcript of that contempt hearing clearly shows that Dr. Elmariah knew that his license had been suspended and knew that no stay had been issued. The contempt arose from Dr. Elmariah's failure and refusal to appear for duly noticed hearings and to respond to subpoenas. The judge made Dr. Elmariah's duty to appear at hearings very clear and Dr. Elmariah acknowledged that he understood his obligation in that regard and would appear in the future. Dr. Elmariah has engaged in a flagrant course of conduct to evade and avoid the lawful orders, subpoenas and notices in gross disregard for the laws of the State of Florida and in gross disregard for the obligations imposed upon him for the privilege of practicing medicine in this state. He has actively resisted enforcement of the Final Order suspending his privilege and license to practice medicine. He has openly and contemptuously refused to cease practice pursuant to the suspension order and he has refused to surrender his medical license.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Professional Regulation, Board of Medicine, enter a Final Order finding Ahmed M. Elmariah, M.D., guilty of all violations charged in the Administrative Complaint, and revoking the medical license of Ahmed M. Elmariah, M.D. DONE and ENTERED this 22nd of August, 1989, in Tallahassee, Florida. DIANE K. KIESLING Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of August, 1989. COPIES FURNISHED: Ahmed M. Elmariah, M.D. Post Office Box 16473 Panama City, FL 32406-1473 Robert D. Newell, Jr. Attorney at Law 817 North Gadsden Street Tallahassee, FL 32303-6313 Kenneth D. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Dorothy Faircloth Executive Director Board of Medicine Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Petitioner Health Care and Retirement Corporation of America owns and operates some forty nursing homes and retirement centers in approximately six states. It currently has twenty-six applications pending for Certificates of Need to establish new nursing homes in Florida. In preparing each application, it has been necessary to provide HRS with information regarding the accessibility of the proposed project to low income persons, racial and ethnic minorities, women, handicapped persons and other underserved groups. The Certificate of Need application also requires an applicant to project revenues and utilization on the basis of types of patients (i.e., Medicaid, Medicare, insurance, private pay, and indigent) which the applicant expects to serve. Petitioner Whitehall Boca operates a nursing home located in Boca Raton, Florida. This facility is presently licensed for 69 skilled nursing home beds, and desires to expand the number of skilled beds. The patients at Whitehall Boca are 100 percent private pay patients. This petitioner has never served and does not intend to serve Medicare or Medicaid patients or the medically indigent. Its financing is conditioned upon serving only private pay patients. The entire concept of this facility is to provide services to those persons in the upper income bracket who wish to continue an elite life-style in their later years. Petitioner Health Quest Corporation presently has several applications pending for Certificates of Need to establish and operate nursing homes in Florida. It has been the practice and policy of HRS in the past to consider the issue of geographic and economic accessibility when reviewing applications for a Certificate of Need. As noted in Paragraph 1 above, the printed instruction and application form requires information from an applicant regarding the economic accessibility of the proposal to minorities and low income groups. In documenting the financial feasibility of a proposal, the applicant is required to include a projection of income and expenses on a pro forma basis for the first two years of operation. after completion of the project. In order to project income, an applicant would have to project the percent of its total revenue to be derived from Medicaid, Medicare, and indigent patients as opposed to private pay and third-party insurance pay patients. These projections are also required in providing information to HRS regarding the projected total facility utilization. Rule 10-5.11, Florida Administrative Code, lists twelve general criteria against which applications for a Certificate of Need are to be evaluated. More specific criteria for specific health services are also provided in later portions of that Rule. The first twelve subsections of Rule 10-5.11 generally track the statutory criteria set forth in Section 381.494(6)(c), Florida Statutes. Prior to the challenged amendment, Rule 10- 5.11(3), Florida Administrative Code, read as follows "(3) The need that the population served or to be served has for such proposed health or hospice services." As a result of another rule-challenge proceeding, the District Court of Appeal, First District, invalidated Rule 10-5.11, Florida Administrative Code, to the extent that it did not explicitly contain any criterion which addressed the extent to which an applicant could meet the needs of minority and low income persons. Farmworker Rights Organization, Inc. v. Department of Health and Rehabilitative Services, 430 So.2d 1 (Fla. 1st DCA, 1983). The court noted that Section 381.494(7)(a), Florida Statutes, (now Section 381.494(8)(a)) requires HRS rules to be in accordance with federal statutes, and that federal statutes and regulations require Certificate of Need agencies to consider the degree to which medically underserved persons, including low income and minorities, have access to the services under review. Comparing the federal "access" requirements with HRS's Rule 10-5.11(3) (cited in Paragraph 5 above), the Court concluded that that subsection was not broad enough to include consideration of the criteria mandated by federal regulation and allowed HRS to ignore the federally mandated "access" criterion. To that extent, the Court found Rule 10- 5.11 to be inconsistent with federal regulations and statutes, and thus invalid. In response to the Court's decision in Farmworker, supra, and in order to codify its prior policy and practice, respondent HRS seeks to amend Rule 10- 5.11(3), Florida Administrative Code, with the following language: "(3)(a) The need that the population served or to be served has for the health or hospice services proposed to be offered or changed, and the extent to which all resi- dents of the district, and in particular low income persons, racial and ethnic minorities, women, handicapped persons, other underserved groups and the elderly, are likely to have access to those services. The extent to which that need will be met adequately under a proposed reduction, elimination or relocation of a service, under a proposed substantial change in admissions policies or practices, or by alternative arrangements, and the effect of the proposed change on the ability of members of medically underserved groups which have traditionally experienced difficulties in obtaining equal access to health services to obtain needed health care. The contribution of the proposed service in meeting the health needs of members of such medically underserved groups, particu- larly those needs identified in the appli- cable district plan and State health plan as deserving of priority. In determining the extent to which a proposed service will be accessible, the following will be considered: The extent to which medically underserved individuals currently use the applicant's services as a proportion of the medically underserved population in the applicant's proposed service area(s), and the extent to which medically underserved individuals are expected to use the proposed services, if approved; The performance of the applicant in meeting any applicable Federal regulations requiring uncompensated care, community ser- vice, or access by minorities and handicapped persons to programs receiving Federal financial assistance, including the existence of any civil rights access complaints against the applicant; The extent to which Medicare, Medicaid and medically indigent patients are served by the applicant; and Tile extent to which the applicant offers a range of means by which a person will have access to its services. In any case where it is determined that an approved project does not satisfy the cri- teria specified in subparagraphs (3)(a) through (d), the Department may, if it approves the application, impose the condi- tion that the applicant must take affirmative steps to meet those criteria. In evaluating the accessibility of a proposed project, the accessibility of the current facility as a whole must be taken into consideration. If the proposed project is disapproved because it fails to meet the need and access criteria specified herein, the Department will so state in its written findings. In any case where a project does not satisfy the criteria specified in sub- paragraph (3)(a) through (d) above, the Department shall so notify in writing the applicant and the appropriate Regional Office of the United States Department of Health and Human Services." In preparing this proposed rule amendment, respondent reviewed and considered the "access" rules effective in eight other States, portions of the "Model Access Provisions for State Certificate of Need Statutes or Regulations" and the federal regulations and statutes. The language contained in subparagraphs 3(a) - (d)4 of the respondent's proposed rule substantially tracks the language contained in 42 C.F.R. Section 123.412(a)(5) and (6), with changes made only for clarity or to reflect the different terminology utilized in the Florida Certificate of Need program. The language contained in subparagraphs (e) and (f) of the respondent's proposed rule is substantially identical to the language in federal regulations 42 C.F.R. Section 123.413(b) - (d) and 42 C.F.R. Section 123.410(a)(6) (1982). The federal regulations require the States to adopt, and use as applicable, specific criteria based upon the general considerations set forth in 42 C.F.R. Section 123.412 (1982). An economic impact statement was prepared by respondent for proposed Rule 10-5.11(3). The respondent concluded that, other than the normal costs to the agency of processing a rule amendment, no economic impact was expected as a result of the amendment's implementation. As the estimated costs or economic benefit to persons directly affected by the proposed amendment, the economic impact statement provides: "The proposed amendment is not expected to have an additional economic impact on existing health care providers, health care consumers, or certificate of need applicants who prepared applications under existing rules. Previous and current certificate of need decisions by the department have been made in consideration of existing Federal regulations and the criterion contained in 10-5.11(3) has been interpreted in accordance with Federal regulations." It was noted that the proposed amendment would affect competition among providers and certificate of need applicants consistent with existing rules and the proposed amendments. After discussions with others charged with the responsibility of implementing the Certificate of Need program, and based upon her own experience as a health planner, the author of the economic impact statement explained the "data and method of estimating costs" as follows: "Immediate costs for implementing the pro- posed amendment were calculated based on cur- rent data available. Printing and distri- bution costs were based on similar experiences with HRS printing and distribution costs." This approach was utilized based upon the author's understanding that the proposed rule imposed no additional or new criteria for review of certificate of need applications.
The Issue The issue is whether Section 11B(3) of the Florida Workers' Compensation Reimbursement Manual, 2004 Second Edition, is an invalid exercise of delegated legislative authority. PRELIMINARY STATEMNET On February 21, 2008, Petitioner filed a Petition for Formal Administrative Hearing with the Agency for Health Care Administration (AHCA). The petition requests a hearing on the determination issued by AHCA in a reimbursement dispute involving Petitioner under Section 440.13, Florida Statutes.1/ The petition also includes a "rule challenge" under Section 120.56, Florida Statutes, in which Petitioner alleges that Section 11B(3)2/ of the Florida Workers' Compensation Reimbursement Manual, 2004 Second Edition ("the 2004 Manual"), is an invalid exercise of delegated legislative authority. The "affected agencies" identified in the petition are AHCA and the Department of Financial Services (Department). The Department is identified because it promulgated Florida Administrative Code Rule 69L-7.501, which according to the petition, incorporates by reference the 2004 Manual. On February 27, 2008, AHCA referred the petition to the Division of Administrative Hearings (DOAH). The DOAH Clerk established two cases based upon the petition--DOAH Case No. 08-1058, which is the reimbursement dispute, and DOAH Case No. 08-1060RX, which is the rule challenge. AHCA is designated as the Respondent in the reimbursement dispute, and the Department is designated as the Respondent in the rule challenge. On February 28, 2008, the Department filed a motion to dismiss the rule challenge for lack of subject matter jurisdiction because the 2004 Manual is no longer adopted by reference in Florida Administrative Code Rule 69L-7.501. Petitioner did not file a response to the motion within the time allowed by Florida Administrative Code Rule 28-106.204(1). No hearing is necessary to rule on the jurisdictional issue raised in the motion.
Findings Of Fact The 2004 Manual is no longer adopted by reference in Florida Administrative Code Rule 69L-7.501 or any other rule. Florida Administrative Code Rule 69L-7.501(1) was amended, effective October 1, 2007, to incorporate the 2006 version of the Florida Workers' Compensation Reimbursement Manual. The amendment deleted the Rule's reference to the 2004 Manual. AHCA applied the 2004 Manual in the reimbursement dispute involving Petitioner, which is pending as DOAH Case No. 08-1058.
