The Issue The issue for determination is whether the Petitioner is liable to the Agency for Health Care Administration ("Agency") for Medicaid reimbursement overpayments and related fines, costs, and interest.
Findings Of Fact The Agency is the single state agency charged with administration of the Medicaid program in Florida under Section 409.907, Florida Statutes. The Petitioner provides physician services to Medicaid beneficiaries pursuant to a contract with the Agency under provider number 037381800. The Agency sent the Petitioner a Preliminary Agency Audit report on June 30, 1998, notifying him of a preliminary determination of Medicaid overpayments in the total amount of $21,156.35. The Agency sent the Petitioner a Final Agency Audit Report on October 28, 1998, confirming the Agency's determination of Medicaid overpayments in the total amount of $21,156.35. The Agency's determination of overpayment was based upon findings that obstetrical echography services "were billed and paid in violation of Medicaid policy governing those services." The Agency performed an audit of the Petitioner for the period January 1, 1993, through October 31, 1996. According to the Agency audit report, the Petitioner's records contained violations of two billing policies outlined in the Medicaid Physician Provider Handbook. The first violation was that the Petitioner billed and received payment for more than one initial ultrasound procedure per pregnancy, and the second was that the Petitioner failed to submit documentation of medical necessity for additional procedures. During the years examined by the audit, Medicaid policy allowed providers to bill for more than one complete initial procedure per patient, so long as providers filed supporting documentation of medical necessity. However, the documentation submitted by the Petitioner indicated that the additional ultrasound procedures he conducted were mere follow-up procedures, instead of medically necessary complete procedures. According to the terms of the Medicaid Physician Provider Handbook, "[i]f more than two (or any combination of two) ultrasounds are performed during a pregnancy, they must be billed with modifier-22 and a report documenting the medical necessity for the procedure." The Petitioner submitted bills for more than two ultrasound treatments per recipient without explaining why the procedures were medically necessary. The Agency audit report established that the Petitioner has been overpaid as a result of the Petitioner's erroneous billings. The total overpayment to the Petitioner was calculated as "the difference between what he got paid for a complete procedure and the amount that he should have gotten paid for the follow-up." The Agency records received in evidence and the testimony of the Agency's witness establish that the amount overpaid to the Petitioner totaled $21,156.35. The Petitioner, as an authorized provider of Medicaid services, had signed a Medicaid Provider Agreement. That agreement states, among other things, that the "provider agrees to submit Medicaid claims in accordance with program policies." When the Petitioner became a certified Medicaid provider, he received a handbook outlining billing procedures for the performance of diagnostic ultrasounds. The Petitioner admitted that he knows "little about billing," that he "didn't involve [himself] in the billing at all," and that he has never read the Physicians' Current Procedural Terminology book, which sets forth the universally used billing codes.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Agency issue a final order requiring the Petitioner to reimburse the Agency for overpayments in the total amount of $21,156.35, plus such interest as may accrue as of the date on which payment is made. DONE AND ENTERED this 3rd day of January, 2001, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 3rd day of January, 2001.
The Issue This consolidated proceeding involves protests by Prison Health Services, Inc. (“PHS”), Physician Healthcare Plans, Inc. (“PHP”), and Wexford Health Sources, Inc. (“Wexford”), contesting notices of intended decisions to award contracts posted by the Florida Department of Corrections ("Department") following review and evaluation of proposals submitted pursuant to the Department's Request for Proposals No. 00-DC-7342, “Comprehensive Healthcare at Twelve Institutions in Region IV” (“RFP”). Pursuant to Section 120.57(3)(f), Florida Statutes (2000), the Administrative Law Judge is to conduct a de novo proceeding to determine whether the agency’s proposed action is contrary to the agency’s governing statutes, the agency’s rules or policies, or the proposal specifications.
Findings Of Fact Stipulated facts In their Prehearing Stipulation filed on March 13, 2001, the parties stipulated that the following facts were admitted to by all parties and were to be taken as true without the need for further proof: The Department issued request for proposals 00-DC-7342 for Comprehensive Healthcare Services at Twelve Correctional Institutions in Region IV (the “RFP”) on or about September 1, 2000. The RFP divided Region IV into an East Cluster and a West Cluster and permitted the Department to award separate contracts to separate vendors for each cluster or both clusters to a single vendor. CMS, PHP, PHS, and Wexford each submitted a timely proposal to the RFP. The proposals submitted by CMS, PHP, PHS, and Wexford are submitted as Joint Exhibits 5-12. The Department concluded that each proposal was responsive to the RFP. Each proposal was scored by the Department’s technical evaluation committee. The RFP specified separate price and technical proposal scores. The technical evaluation scores were determined by an evaluation team and a certified public accountant retained by the Department to evaluate financial documentation submitted by the proposers (See Joint Exhibit 27 for identity of members of evaluation team). The Department’s evaluation team scored the proposals (except for financial components) and awarded points, for both East and West Clusters, in the areas of Corporate Qualifications, Project Staff, and Service Delivery Approach. A certified public accountant evaluated and scored the financial information submitted by each proposer. The price scores were awarded pursuant to a numerical formula. The RFP specified 1000 points as the highest possible score. The RFP specified 550 possible Cost Proposal Points and 450 possible Project Proposal Points. The Department evaluators used information set forth on the scoring sheets and the Proposal Evaluation Manual which are Joint Exhibits 4 and 13-19 during their evaluation of the proposals. The Department evaluators assigned scores to each of the questions found on the scoring sheets. The Department then determined the numeric average of the scores assigned by the evaluators. Those average scores for each question were multiplied by weights assigned to each question by the Department to derive a final score for each question. Those scores were summed and then added to scores assigned by Mr. Law [the CPA retained by the Department] based upon his review of Financial Documentation required by Section 5.3.1 of the RFP. The RFP required the vendors to specify a per inmate per diem cost price. For the West Cluster, the Final Project Scores are as follows: Cost Proposal Points Wexford: 550.00 PHP: 539.65 PHS: 463.09 CMS: 457.29 Project Proposal Points Wexford: 407.97 CMS: 405.29 PHS: 445.1 PHP: 360.84 Vendor Total Calculations Wexford: 957.97 PHS: 908.19 PHP: 900.50 CMS: 862.58 For the East Cluster, the Final Project Scores are as follows: Cost Proposal Points Wexford: 529.57 PHP: 550.00 CMS: 521.89 PHS: 483.19 Project Proposal Points Wexford: 407.97 CMS: 405.29 PHS: 445.1 PHP: 360.84 Vendor Total Calculations Wexford: 937.54 PHS: 928.29 CMS: 927.18 PHP: 910.85 On or about December 11, 2000, the Department posted a notice of intent to award the West Cluster to Wexford. On the same day, with regard to the East Cluster, the Department posted a notice of intended decision to negotiate with each proposer, in descending rank order, based on each vendor's combined price and technical evaluation scores. The descending order for the East Cluster vendor negotiations was Wexford, PHS, CMS, and PHP. On January 2, 2001, at 3:15 p.m., the Department posted its notice of intended decision in the East Cluster; the notice provides that CMS is the intended recipient of the East Cluster. On or about January 23, 2001, the Secretary of the Department executed a document entitled “Agency Statement Supporting Continuation of Bid Solicitation Process or Contract Award Process” (“Agency Statement”). The geographic service area approved by the Agency for Health Care Administration for PHP does not include Desoto, Hardee, Hendry, Indian River, Martin, or Okeechobee Counties. From the time PHP submitted its proposal to the present, Bruce L. Carpenter has never been licensed by the Florida Department of Insurance as a health insurance agent. PHP has not made any filings with the Florida Department of Insurance pursuant to Section 641.31, Florida Statutes, seeking approval of its rates or rating methodologies for the proposed contract with the Department of Corrections. PHP is the only proposer which holds a valid Certificate of Authority issued by the Florida Department of Insurance for the operation of an HMO. Facts proved at hearing The RFP was issued at the express direction of the Florida Legislature to privatize health care services in Region IV. (See Chapter 00-166, Laws of Fla. (2000), proviso language accompanying specific appropriations 737 through 750.) The Legislature required the Department to retain a contractor to provide such services at a cost savings when compared to the Department's fiscal year 1999-2000 expenditures for providing those services in-house. The RFP bears out this Legislative instruction in Section 2.2 of the RFP: Proposals are to be submitted by qualified vendors who will be required to provide services at a cost saving when compared to the Department’s actual FY 1999-2000 healthcare expenditures as shown in Composite Attachment 9. The referenced Composite Attachment 9 revealed that the Department’s cost of providing health care averaged $8.00 per inmate per day in the West Cluster, and $13.24 per inmate per day in the East Cluster. The RFP established the qualification of vendors to submit a response based on prior experience. That requirement was that the vendor must have provided comprehensive health services to at least 9500 “clients” for at least three of the last five years. The RFP did not require that any of such services had to have been performed in the State of Florida. The RFP does not contain any language that would reasonably put a vendor on notice that competition was limited to licensed HMOs. The RFP does not contain the phrase “Health Maintenance Organization” or the abbreviation “HMO”. The RFP contains the following statement: Florida law mandates that all Medicaid recipients, with certain exceptions, be enrolled in a managed care plan. While it is recognized that inmates are not Medicaid recipients, the Department does expect the Contractor(s) to apply the principles of managed care in the treatment of inmates in Region IV. Currently, many aspects of managed care are being utilized in the correctional healthcare delivery system throughout the state including, but not limited to, pre-hospital admission certification, continued stay review, retrospective admissions review, ambulatory surgery and discount contracting for specialty medicine and diagnostic care. However, the Department is looking to the private sector with its flexibility, purchasing power, business acumen and innovation to apply these principles of managed care in Region IV at a cost saving to the State of Florida while maintaining a minimal constitutionally adequate level of care for the inmates. (Emphasis added.) No other provision of the RFP addresses managed care. The RFP also contains the following language: Applicable provisions of all Federal, State, county and local laws, and of all ordinances, rules, and regulations shall govern development, submittal and evaluation of all proposals received in response hereto and shall govern any and all claims and disputes which may arise between person(s) submitting a proposal response hereto and the State of Florida, by and through its officers, employees and authorized representatives, or any person, natural or otherwise; lack of knowledge by any proposer shall not constitute a cognizable defense against the legal effect thereof. * * * The Contractor and the Department shall work cooperatively to assure a high standard of service delivery and compliance with all Federal, State of Florida and Department laws, statutes, rules, policies and procedures. Each of the proposers was afforded the opportunity to submit questions to the Department concerning the RFP requirements prior to submitting a proposal. In that process, CMS posed the following question and received the following response from the Department: Question: Are there any licensures or certificates that will need to be secured or maintained in order for us to deliver the services during the contract? Answer: Whatever is required by the State of Florida for health care providers. If any others are required it is the vendor’s responsibility to meet all such requirements. Pursuant to the RFP, the contractor providing these comprehensive health care services will be paid a fixed monthly sum, and nothing more, regardless of the actual cost incurred by the contractor to render any necessary services for the applicable prison inmate population. In other words, the contractor will be “at risk” with regard to whether or not it achieves financial profits or losses under the contract. As stated in the RFP: The Contractor in each cluster will be completely and totally responsible for the cost of all healthcare delivered to inmates in their respective cluster institutions. There will be no stop/loss provision for hospitalization or any other care. The RFP at Section 7.4.2 provides: “[t]he contractor agrees to request compensation on a monthly basis through submission to the Department of a properly completed invoice within fifteen (15) days following the end of the month for which payment is being requested. . . .” Payment under the contracts contemplated by the RFP is based on the average daily population (“ADP”) of inmates at an institution for the preceding month times the per diem rate in the contract. In all instances the contractor will be paid for services provided during a specific month at some time after the services have been performed. Under the prison health services contracts that will result from the RFP, the contractor will not be “prepaid” for the services it performs for the Department. The Department knew that its current contractors for similar health care services were not licensed as HMOs. The Department has never previously contracted with an HMO for inmate health services. The Department had no intention to eliminate its current contractors from competition for the subject contracts. The services contemplated under the RFP, health care services for Department inmates, do not include certain benefits and protection afforded “enrollees” under the State’s Health Maintenance Organization laws. The "Comprehensive Health Care Services" sought by the instant RFP are described in the RFP as follows: “Provision of medically necessary and appropriate health care to meet the minimal adequate constitutional level established by federal law. This includes physical, dental and mental health care both on site and off site.” The scope and nature of the health care services described in the RFP is a lesser level of care than that mandated by the Florida HMO Act. As noted in the Department of Insurance Consumers Guide, HMOs must provide a broad range of coverages and HMO subscribers have numerous rights inconsistent with the rights of inmates to receive health care in a prison setting, such as: (1) the right to receive a contract, certificate or member handbook clearly stating services and limitation of membership; (2) the right to convert from a group to an individual contract if the group contract is canceled; (3) the right to fair rates—HMOs are prohibited from charging rates that DOI deems excessive, inadequate or discriminatory; (4) the right to receive a list of all hospitals and primary care physicians employed by or under contract with the HMO; (5) the right to a second medical opinion; (6) the right to a 45-day notification before a contract is canceled or non-renewed; the right to appeal to the Statewide Provider and Subscriber Assistance Program Panel; and (8) the right to receive a converted contract if coverage has been continuous for at least three months. These "rights" exceed the minimum constitutionally required standard of care to which prison inmates are entitled, and are not rights otherwise available to prison inmates. Section 6 of the RFP states, in part: “Selection of the successful proposer will be based on the proposal that is determined to be in the best interest of the Department, taking into consideration the criteria set forth in the RFP.” (Emphasis added.) Section 6 continues: “The Department reserves the right to make an award with or without further negotiations with the highest scoring proposer.” Section 4.3.11 of the RFP, as revised by Addendum 1, specifically prohibits proposers from communicating with the Department regarding cost at any time prior to the posting of a notice of intended award. “Any discussion by the proposer with any employee or authorized representative of the Department involving cost information, occurring prior to the posting of the recommended award will result in rejection of said proposer’s proposal.” And paragraphs 6.4, 6.5, and 6.6 of the RFP add the following provisions regarding the selection of the successful proposer: Final Proposal Scores/Total Points Scored The points awarded for the Business/Corporate Qualifications, Project Staff and Service Delivery Approach categories will be totaled and added to the points awarded for the Cost Proposal to determine the final scores of all proposals. Identical Tie Proposals In the event of an identical tie in the evaluation scores of proposals from this RFP, preference will be given to businesses with drug free workplace programs. Attachment 6 describes such programs and how proposers may obtain this advantage. Final Determination In the event that the Department receives identical evaluation scores from two or more responsive proposers with drug-free workplace programs, the final determination of the award shall be decided through the toss of a coin in a public meeting. The RFP described the evaluation process for the proposals. The evaluation criteria for the proposals included two categories for which no points would be awarded to proposers: Mandatory Responsiveness Requirements, and Transmittal Letter and Executive Summary. The other four review categories would be scored, resulting in scores being assigned up to a maximum possible score of 1,000 points, as follows: Category 1 Business/Corporate Qualification 100 points Category 2 Project Staff 100 points Category 3 Service Delivery Approach 250 points Category 4 Cost 550 points The RFP explained that an Evaluation Committee would be established to score the proposals on Categories 1, 2, and 3 above. The scoring system for these three categories was a curved system designed such that the vendor receiving the highest number of points in a given category would be awarded the maximum score (100 or 250) for that category, and the other, lower scoring vendors would receive proportionally fewer points. Section 5.11.1 of the RFP requires the submission of a sealed cost proposal. That section of the RFP goes on to provide that the cost proposals "should be submitted with the most favorable terms the proposer can offer." The cost proposals were to be separately scored by Department staff, separate and apart from the scoring of the project proposals. The lowest per diem rate offered by any vendor in each of the two clusters would be awarded 550 points, with the other vendors’ higher per diem rates assigned proportionally fewer points based on a formula contained in the RFP. Section 6 of the RFP further informs the proposers that the “factors to be considered” by the evaluators in scoring the “Business/Corporate Qualifications, Project Staff and Service Delivery Approach sections” of each proposal “are listed in Attachment 8” to the RFP. Attachment 8 to the RFP is titled: “Evaluation Criteria for Project Proposal.” When the RFP was initially issued on September 1, 2000, Attachment 8 listed evaluation criteria for each of the proposal areas (Corporate Qualifications, Project Staff, and Service Delivery Approach) to be evaluated. Section 4.3.8.2 of the RFP notified each proposer of its responsibility to assure that the RFP requirements were clearly stated and to request changes if they were not. RFP Section 4.3.8.2 (“The proposer shall examine this RFP to determine if the Department's requirements are clearly stated.”) Unless a proposer requested changes, it was deemed to have accepted the specifications. Submission and Evaluation of Proposals In response to the RFP, four vendors – Wexford, CMS, PHP, and PHS – submitted proposals. The Department assembled a team of seven Department employees to evaluate and score the project proposals in the areas of Business/Corporate Qualifications (except as to financial statements submitted by the vendors), Project Staff, and Service Delivery Approach. The evaluators received instructions from the Department’s Bureau of General Services staff on how to evaluate the proposals and assign scores. The evaluators were given a Proposal Evaluation Manual designed specifically for this solicitation. The Evaluation Manual identified six criteria for each evaluator to assign a score for each vendor’s Business/Corporation Qualifications; eighteen criteria for each evaluator to score for Project Staff; and thirty-four criteria for each evaluator to score for Service Delivery Approach. A portion of the scoring of the "Business/Corporate Qualifications" section of the proposals was performed by Richard Law, a certified public accountant in private practice retained by the Department to assist with several competitive solicitations that the Department was pursuing. Before the September issuance of the RFP, Mr. Law drafted what he considered fairly "generic" requirements for financial documents to be submitted by vendors with their proposals. The financial statement evaluation accounted for 40 of the 100 points available for Business/Corporate Qualifications. Mr. Law allocated the 40 points among six review criteria devised by him. A possible 28 of the 40 points were assigned to Mr. Law's review of the auditor’s report on financial statements for an opinion without qualification or adverse comment (8 points); review of the auditor’s letter to management for no material weaknesses in internal controls (10 points); and review of the audited financial statements for no indication of a "going concern" problem (10 points). Mr. Law also allocated up to four points each to three "ratios" calculated from information in the vendor’s balance sheet; a current ratio, an acid-test ratio, and a debt-to-equity ratio. Mr. Law was provided with a copy of each vendor’s entire proposal for scoring. Employing the six criteria devised by Mr. Law, an accountant in Mr. Law’s firm calculated scores for those criteria for the four vendors, which Mr. Law reviewed and adjusted slightly to the following: PHP, 39; CMS, 38; PHS, 37; and Wexford, 32. Mr. Law filled out a single evaluation sheet for each vendor covering all six of his review criteria, and returned them to the Department. At that point, Mr. Law believed his involvement in this RFP was done. Scores Assigned Mr. Law’s scores were added to the criteria weighted scores assigned by the Department Evaluation Committee members in the area of Business/Corporate Qualifications. This resulted in a total weighted score for each of the vendors in the area of Business/Corporate Qualifications. Pursuant to Section 6.3.1 of the RFP, the vendor with the highest total weighted score in the Business/Corporate Qualifications received a score of 100, and the other vendors received a proportionally lower score, as follows: CMS, 100.00; PHS, 98.85; Wexford, 92.27; and PHP, 85.94. Scores were assigned to the vendors for the eighteen criteria for Project Staff in much the same way, except without scores from non-Department employees such as Mr. Law. After determining total weighted scores for each vendor in this area, and assigning 100 points to the highest scoring vendor, the final Project Staff scores were: PHP, 100.00; PHS, 96.25; Wexford, 88.75; and CMS, 85.95. Similarly, scores were assigned to vendors for the thirty-four criteria for Service Delivery Approach, again without scores from non-Department employees. The total weighted scores for the four vendors in this area were adjusted to give the highest scoring vendor 250 points, with the other vendors receiving proportionately fewer points, as follows: PHS, 250.00; Wexford, 226.95; CMS, 219.34; and PHP, 174.90. Adding the adjusted scores for each of these first three criteria together for each vendor produced a final "project proposal" score, out of a maximum possible 450 points, as follows: PHS, 445.1; Wexford, 407.97; CMS, 405.29; and PHP, 360.84. The scoring of the vendors’ cost proposals was accomplished as follows: Within each cluster, the vendor offering the lowest per diem rate received the full 550 points, and the vendors offering higher per diem rates received proportionally lower scores, as described in Section 6.3.4 of the RFP. In the West Cluster, Wexford offered $7.30; PHP, $7.44; PHS, $8.67; and CMS, $8.78. These rates translated into adjusted cost proposal scores for the West Cluster as follows: Wexford, 550.00; PHP, 539.65; PHS, 463.09; and CMS, 457.29. For the East Cluster, the per diem rates proposed were PHP, $12.44; Wexford, $12.92; CMS, $13.11; and PHS, $14.16. [Jt. Exhs. 6, 8, 10, 12] These rates translated into adjusted cost proposal scores for the East Cluster as: PHP, 550.00; Wexford, 529.57; CMS, 521.89; and PHS 483.19. A total score was arrived at for each vendor in each cluster by adding the vendor’s "project proposal" adjusted score to its "cost proposal" adjusted score for that cluster. The total scores for the West Cluster were: Wexford, 957.97; PHP, 900.50; PHS, 908.19, and CMS, 862.58. For the East Cluster, the final totals were: Wexford, 937.54; PHS, 928.29; CMS, 927.18; and PHP, 910.85. Notwithstanding the prohibition in Section 4.3.11 of the RFP, PHS faxed a three-page letter to the Secretary of the Department, Michael Moore, six days before the posting of the recommended awards for the East and West Clusters on December 11, 2000, but after the proposals had been opened. PHS did not give notice of this communication to any other proposer. The essence of the information in the PHS letter was that PHS had erred in calculating its cost proposal, that PHS had erred by including costs that the RFP did not require, and that PHS wanted an opportunity to lower its price. The obvious purpose of the letter was an effort to affect the Department's decision- making process and to give PHS an advantage not enjoyed by other bidders. Mr. Law’s Second Review According to the date Mr. Law signed his scoring sheets, his scoring of the financial statements from the proposals was completed November 22, 2000. The RFP, as revised by the Department’s addendum had established an anticipated date for the "Posting of Recommended Award/Notification to Proposers" of Monday, December 11, 2000. Shortly before the anticipated posting date, however, Richard Prudom, the Department’s Deputy Director of Administration, called Mr. Law and asked him to perform additional analysis regarding the financial capability of the vendors. This was reduced to writing in a letter faxed to Mr. Law on Wednesday, December 6, 2000. Omitting the formal parts, the letter read as follows: Thank you for your financial evaluation of the bids submitted in response to the Requests for Proposals for the delivery of comprehensive healthcare to inmates in Region IV. The evaluations were an integral part of the corporate qualifications section of the project proposal scoring process. With the evaluation process now complete the Department is ready to award contracts for the delivery of services of which the anticipated value is approximately $17 million for the West cluster of Region IV and $41 million for the East cluster. Since the Department has an obligation to award contracts that are in the best interests of the State of Florida, what further commentary/analysis could you provide regarding the ability of each proposer to fulfill the obligations of contracts at those anticipated values? Your assistance in this matter is appreciated. In response to the request for additional comments and analysis, Mr. Law reviewed the financial materials submitted by each of the proposers in light of the anticipated dollar values of the contracts for each cluster. He then made calculations comparing the 1999 health care revenue for each of the proposers to the anticipated dollar values of the contracts for each cluster. On December 8, 2000, Mr. Law sent a letter by fax to the Department containing a table demonstrating the comparisons he had calculated, as well as some additional comments. The additional comments in Mr. Law's letter of December 8, 2000, included the following: In my judgment, a proposer in the healthcare industry is more likely to fulfill all of the terms and conditions of the proposed contract if the dollar value of the contract is within a reasonable range of its existing level of operations. * * * The burden of fulfilling the terms and conditions of the contract will obviously be much greater for Wexford than the other three vendors because of the relative impact of adding 24.6% (for $17 million) or 59.4% (for $41 million) more in services than they provided in 1999. * * * Wexford does not currently perform any services in Florida, whereas the other three providers already provide a substantial amount of services in Florida. Since they have no management or staff in place in Florida, and considering the impact of fulfilling a $17 million or $41 million contract relative to their existing revenue base, the risk of failure is high. The comments and analysis set forth in Mr. Law's letter of December 8, 2000, do not address any of the criteria in the RFP on which Mr. Law relied when he performed his original scoring of the financial documents of each proposer. Rather, his comments and analysis in the December 8, 2000, letter are predicated on two criteria that do not appear in the RFP. In this regard, it it significant to note that in response to the Department's request for additional comments and analysis, Mr. Law did not suggest that any changes should be made to his earlier assignment of scores to each of the proposers. This is no doubt due to the fact that the criteria upon which Mr. Law based his December 8, 2000, comments are criteria that do not appear in the RFP, and the December 8 comments, even if correct, would have no bearing on the scores assigned to the proposers pursuant to the criteria that are included in the RFP. Based upon the letter written by Richard Law, the Department decided by December 11, 2000, that Wexford would not be awarded the East Cluster contract. Notably, December 11 was the day on which the Department posted its notice of intent to negotiate for the East Cluster contract, identifying Wexford as the first vendor with whom it would negotiate. In effect, based on Richard Law’s letter of December 8, 2000, Wexford was disqualified from being eligible to propose on the East Cluster. This occurred even though pursuant to the terms of the RFP Wexford was clearly a qualified and responsible bidder for that contract under the terms of the RFP. Mr. Law acknowledges that he has no understanding of the correctional health care industry, or of what it would take for a vendor to perform a contract for health services in a correctional setting. Rendering an opinion on the impact of a new contract on a company would require an understanding of how the business works, not just the amount of revenue the contract would generate. An analysis of a vendor’s ability to perform this contract which is based on existing and anticipated revenues is not a meaningful or relevant analysis. A more useful analysis would compare the number of inmates and number of institutions covered by the contract to the vendor’s existing level of service. Such a comparison in Wexford’s case shows that Wexford is already performing contracts in other states that cover a comparable or greater number of inmates and a comparable or greater number of prisons. Posting of Awards and Decisions On December 11, 2000, the Department posted a Notice of Intended Award for the West Cluster contract, indicating its intent to award that contract to Wexford. The Department also posted on that date a "Notice of Intended Decision" for the East Cluster, stating its intent to negotiate. The East Cluster Notice identified an order of negotiation that tracked the final scores in the East Cluster: Wexford, then PHS, then CMS, then PHP. The only written information the Department provided to the vendors concerning the negotiations was contained in its Notice of Intent to Negotiate. The East Cluster notice contained the following description of the negotiation process: Pursuant to the provisions of the State Purchasing Rule 60A-1.002, F.A.C., the Department of Corrections announces its intention to negotiate a contract for the East Cluster service area. The Department intends to negotiate with the highest- ranking proposer. If no contract is successfully negotiated with this proposer, the Department will proceed to the next highest-ranking proposer. If no contract is successfully negotiated with this proposer, negotiation will continue with the third- highest and then fourth-highest ranking proposer, as necessary. In other words, the negotiations were to be sequential rather than concurrent, and would be exclusively with the highest- ranked vendor until it was determined that a contractual agreement could not be reached. The Department issued no further written information concerning the negotiation until it issued its notice of intent to award the East Cluster contract to CMS on January 2, 2000. Prior to commencing the negotiations, the Department instructed one of its employees to contact each of the four proposers and tell them the following. That negotiations had to be concluded on December 15: That each vendor had not more than 2 hours to conclude negotiations; That if negotiations concluded with a vendor without an agreement, such vendor would not be given another chance to negotiate with the Department for the East Cluster. The greater weight of the evidence is to the effect that the Department's employees failed to advise any of the four proposers of the negotiation rules described immediately above at any time prior to the negotiations. During the negotiations none of the proposers were advised of the negotiation rules. The Department never provided written notice of the negotiation rules to any of the proposers. The "negotiations" referenced in the December 11 East Cluster notice were scheduled for Friday, December 15, by telephone. The Department scheduled conference calls with three of the four vendors for December 15, commencing with Wexford at 9:30 a.m. The Department apparently intended to conclude the negotiations in a single day, although this intent was not communicated to the proposers. Wexford attempted to obtain information from the Department in the days leading up to the December 15 conference call as to an agenda for the call or subjects to be discussed or negotiated, in order to be better situated to promptly respond. The Department provided no information other than the identity of its "negotiation team": Mr. Prudom, Ms. Bassett, and Deputy Secretary Michael Wolfe. Following introductory comments, the Department’s call to Wexford began with the Department's notifying Wexford that Wexford would not be awarded the East Cluster contract, despite the December 11 East Cluster notice that ranked Wexford first. When pressed for an explanation, the Department responded that a CPA retained by the Department to review the proposals had expressed concern over Wexford’s financial capabilities. This was apparently a reference to the December 8, 2000, letter from Mr. Law to Mr. Prudom. The Department refused Wexford’s request to submit documentation to respond to those concerns. At some point during the conference call with Wexford, Deputy Secretary Mike Wolfe requested that Wexford’s representative, Mr. Matonte, engage in a one-on-one telephone conversation with him. Mr. Matonte did so, at which time Mr. Wolfe made it clear that Wexford was not going to receive the East Cluster contract, and that Wexford needed to stop contesting the Department's position if it wanted to receive the West Cluster contract. This conversation took place at about 10:00 a.m. on Friday, December 15, and Mr. Wolfe gave Wexford until noon to give him a response. If Wexford did not respond, then Wolfe indicated Wexford would end up with nothing. Following the conference call with Wexford, the Department had conference call sessions with PHS and then with CMS. In both of those sessions, the Department invited those vendors to lower their per diem rates offered for the East Cluster. The negotiations effectively ended on the afternoon of December 15, when Mr. Wolfe, Ms. Bassett, and Mr. Prudom made the decision to award the East Cluster to CMS, but Mr. Wolfe continued to negotiate with PHS for most of the week following December 15, 2000. These negotiations culminated in PHS’s written “best and final offer” on December 21, 2000, at which time PHS offered a price of $13.17. By then, the Department had already decided to award the East Cluster contract to CMS. Most of the negotiations between PHS and Mr. Wolfe occurred after the Department commenced negotiations with the third-ranked vendor, CMS, and after the Department had already decided to award the East Cluster contract to CMS. This course of conduct by the Department was inconsistent with the negotiation rules the Department purports to have applied to the negotiation process. A notice of intent to protest had been filed by PHP, the fourth ranked bidder in the East Cluster, on December 12, 2000. The Department made the determination that the bid procurement should continue and ultimately set forth facts and circumstances in writing to support that determination in an Agency Statement signed by the Secretary. On January 2, 2001, the Department posted notice of its intent to award the contract for the East Cluster to CMS. On January 8, 2001, PHP amended its Initial Protest to contest the Department's continuation of the procurement process subsequent to PHP’s initial petition. Wexford History and Experience Wexford was founded in 1992 as a service company providing health care in correctional settings. Wexford is one of the three largest companies nationally performing correctional health care, along with CMS and PHS. Wexford’s officers and key employees have extensive experience in health care in Florida and in correctional health care in Florida and throughout the nation. Wexford’s CEO, Kevin Halloran, has been with Wexford since its inception, and prior to Wexford’s founding had health care experience in the U.S. Army Medical Corps and, beginning in 1971, the nursing home business in Florida and the hospital rehabilitation business in Florida and nationally, for a total of 36 years in health care. Wexford’s Vice President of Business Development, Bob Matonte, has over 25 years' experience in health care management and delivery, both clinically and administratively, including 3 years overseeing health care delivery in the Broward County jail immediately before joining Wexford in 1992. Wexford’s Regional Manager for this project, Kathy Harkis, has 30 years' experience in health care, including 19 years (since 1982) in correctional health care, the last 5 of which have been in Florida. Wexford’s Medical Director for this contract, Gary Schecodnic, M.D., served as medical director for state prisons and county jails in Florida for over 12 years, from 1987 to 1999. Wexford’s first contract for correctional health care was for prisons in the state of Illinois, with a population of about 7,500 inmates. Wexford grew rapidly after the Illinois contract, picking up contracts for 8 prisons and 13,000 inmates in Pennsylvania, and 17 prisons and 19,000 inmates in New York state. Wexford currently serves over 70,000 inmates in over 68 facilities in 11 different states; including a contract for about 500 inmates in the Martin County, Florida, jail since October 2000. Wexford’s current contract revenues projected forward for 12 months, are about $95 million, and Wexford expects to break the $100 million barrier soon. The "staffing up" process in the private correctional health care industry typically involves the vendor interviewing and often hiring the doctors, nurses, and other staff who are already in place at a particular prison providing the health care. This occurs regardless of whether the health care was being provided in-house by the prison system’s own employees, or under contract with a vendor. Wexford’s standard practice is to hire every single person already providing health care in a facility on a 90-day probationary period. Thus, the RFP’s requirement at Section 3.2.3.1, that the contractor interview the Department's existing employees, is consistent with Wexford’s standard practice. Wexford has not experienced problems in performing contracts where it had no presence prior to the contract award. The RFP requirement for interviewing current employees, as well as Wexford’s standard staffing practice and the staffing practice standard to the industry, demonstrate that Mr. Law’s statement concerning the "lack of presence in Florida" is not a significant basis for concern. Wexford anticipated "start-up costs" for the two clusters at between $3 million and $5 million. The single largest element of start-up costs is the employee salaries that Wexford will have to pay before it starts receiving payment from the Department. Wexford assumed 45 to 60 days of incurring salary costs before payments would be received from the Department. Under the terms of this RFP, vendors must submit an invoice for payment by no later than 15 days after the end of the month for which payment is sought. The invoice amount is calculated by multiplying the contract per diem rate by the ADP in the cluster prisons for that month. Obviously, it is in the contractor’s best interest to submit the invoice as soon after the end of a month as the ADP figure is available. It is the Department’s practice to pay invoices as quickly as it can. The other costs which a vendor will incur during both start-up and the entire period of the contract are primarily medical in nature. These include payment for inmate care at hospitals and doctor’s offices. Such services would not be paid for at the time of delivery, but would typically be paid 45 to 60 days after the contractor received an invoice. Thus, any such costs incurred by Wexford during the start-up period would not be paid by Wexford during the start-up period, but might be paid months later. As reflected in the notes to the audited financial statements contained in Wexford’s proposal, Wexford maintains a $10 million line of credit with a financial institution that it can expand if necessary. A line of credit is a borrowing line established with a financial institution on which a company can draw and repay as needed to finance its daily operations. As of the end of 1999, the amount drawn on this line of credit was $94,223, showing that it had been significantly paid down since the end of 1998. As noted by Wexford’s Chief Financial Officer at the time of final hearing, there were no funds drawn on the line of credit as of the week of final hearing. Wexford’s $10 million line of credit provides an ample resource for Wexford to financially perform this contract even during the start-up period before revenue begins to flow.
Recommendation On the basis of all of the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department issue a Final Order in this case awarding to Wexford contracts for both the West Cluster and the East Cluster, and denying all relief sought by all other proposers. DONE AND ENTERED this 4th day of May, 2001, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 4th day of May, 2001.
The Issue The issues in this case are whether Respondent committed sexual misconduct as charged in the Amended Administrative Complaint; and, if so, what penalty should be imposed.
Findings Of Fact The Department is the state agency charged with regulating the practice of chiropractic medicine in Florida, pursuant to section 20.43 and chapters 456 and 460, Florida Statutes. At all times material to this case, Respondent was a licensed chiropractor in Florida, having been issued license number CH 9186 on June 1, 2006. At all material times, Respondent worked at and owned Florida Wellness and Rehabilitation Center (Florida Wellness), located at 101 North Franklin Street, Suite A, Tampa, Florida. He has been the sole or predominant owner of Florida Wellness since he started the business in 2006. Approximately ten years ago, Stephen Unger acquired a 13-percent ownership interest. Approximately eight years ago, Holly Ridge acquired an eight- percent ownership interest. Respondent retains a 79-percent ownership interest. Respondent’s business has expanded over the years. Florida Wellness now has five locations. In addition, over the last few years Respondent and his business partners established other health care businesses, including a pharmacy in 2017 and a surgical center in 2018. The ownership shares of these other businesses are the same as for Florida Wellness. Respondent now spends two days per week seeing patients at the Franklin Street location, and three days per week engaged in administrative matters to manage the businesses. Respondent’s license has not been the subject of prior discipline. In 2015, the Franklin Street location of Florida Wellness provided chiropractic care, acupuncture, family medicine by a family medicine physician, massage therapy by licensed massage therapists, and physical therapy ancillary to chiropractic care, provided by registered chiropractic assistants. Respondent described his practice as general chiropractic medicine, with an emphasis on treating automobile accident victims. At issue in the Amended Administrative Complaint is an incident involving Respondent and a patient, J.S., during a visit for chiropractic services on March 5, 2015. J.S. had been going to Florida Wellness for chiropractic treatment beginning November 10, 2014, following an automobile accident on or about November 1, 2014, that left him with neck, shoulder, and upper back pain. He and his then-partner, M.S., were in the accident together, and they were referred to Florida Wellness by Morgan & Morgan, the law firm representing them with regard to the automobile accident. J.S. had an appointment to see Dr. Leonard at 4:00 p.m. on March 5, 2015. His then-partner, M.S., drove him to Florida Wellness and went in with him to try to secure an impromptu adjustment. J.S. was met right away by Respondent, who took him back to a private treatment room. M.S., still waiting in the waiting area, saw Respondent escort J.S. back to a treatment room and close the door. M.S. said the door stayed closed; he did not see Respondent come back out. Shortly thereafter, M.S. was taken back for an adjustment by another chiropractor. Once inside the treatment room, J.S. fully disrobed in preparation for treatment, facing towards a dresser against a wall. Respondent stayed in the treatment room while J.S. disrobed.3/ As Respondent admits, it is inappropriate for a chiropractor to remain in the treatment room while a patient disrobes. J.S. testified that he had completely disrobed other times when treated by Respondent, based on Respondent’s advice, for ease of access to the targeted muscles. Respondent said that he had no recollection of what he said to J.S. on this subject, but, nonetheless, denied that he advised J.S. to disrobe. He testified that he has a “canned” speech that he gives to patients after he brings patients to a treatment room for manual therapy, telling them to undress to the extent they are comfortable doing so, and then to get on the treatment bed in between the bottom sheet and top sheet, covering themselves with the top sheet. Inconsistently, Respondent informed the Tampa police, in an interview shortly after the incident on March 5, 2015, that whether he has his patients completely disrobe depends on what treatment he is providing. Respondent explained that he had J.S. completely disrobe because J.S. needed treatment in his hip and groin area. J.S.’s clear memory of Respondent advising him to disrobe to assist in the treatment, consistent with Respondent’s explanation to the police an hour after the incident, is more credible than Respondent’s professed uncertain recall of what he told J.S. regarding disrobing. J.S.’s testimony is credited. Fully disrobed, in Respondent’s presence, J.S. turned away from the wall and got on the treatment bed, face down, for Respondent to begin treatment. J.S. was initially covered with a sheet, but Respondent pushed the sheet aside to begin manual therapy treatment to J.S.’s lower back, hips, buttocks, and the backs of his thighs (hamstrings). Manual therapy includes myofascial release, trigger point therapy, and passive stretching. J.S. described the manual therapy to his lower back, hips, buttocks, and thighs as “massage.” Respondent said that the manual therapy he provides is different from massage, which he described as for relaxation. Respondent also said that he does not think massage is a covered service, presumably referring to third-party payor coverage. J.S. testified that while he was going to Florida Wellness, he had not complained of pain in his lower region or hip area. His initial complaint was pain in the upper back, shoulder, and neck, and he did not subsequently report other areas of pain that developed. However, early on in his treatment, Respondent diagnosed him with hip rotation, which was explained to J.S. as one of his legs being shorter than the other. According to J.S., the manual therapy treatment to his lower back, hips, buttocks, and thighs was explained as necessary to loosen tight muscles to help with the hip rotation. J.S. understood that, despite the fact that he did not subjectively complain of pain, this diagnosis followed from the objective findings and assessment to identify problems in addition to the pain he reported. While J.S. was still face down on the treatment table, Respondent performed passive stretching to stretch the front of his thigh. This stretch entailed bringing the foot towards the buttocks while lifting the bent leg up by the knee. There is no legitimate reason for having a patient be fully disrobed to receive the manual therapy that Respondent administered to J.S., particularly not for this form of passive stretching. Instead, the leg being stretched would have to be uncovered, and even with careful draping and tucking (which did not occur in this instance), the sheet would necessarily be moved, with any tucking likely dislodged by the stretching movement. The risk would be high that the patient’s privacy-- particularly a patient with male genitalia--would be breached and the patient’s private parts unnecessarily exposed. In this instance, J.S. was fully and unnecessarily exposed, because Respondent had pushed the draping sheet off of J.S. Given this risk with no commensurate legitimate reason for having a patient completely disrobed (whether under a sheet or not), professionalism dictates that a chiropractor would instruct a patient receiving this form of passive stretching to remain clothed or wear underwear, or the chiropractor would supply the patient with a treatment gown or gym shorts to change into. As Petitioner’s expert reasonably opined, this should be the practice even if a patient would be comfortable disrobing. It is up to the chiropractic physician to set the professional parameters for the treatment being provided, for the protection of everyone involved, including the chiropractor. As Dr. Mathis put it: “[A] physician’s access to a patient’s body is a time- honored privilege and it’s very, it’s of the utmost importance that we maintain their modesty and respect their privacy. And also that demonstrates our professionalism and our respect for them as a patient.” (Tr. 74-75).4/ After the passive stretching while J.S. was face down, Respondent instructed J.S. to turn over. J.S. did so. He remained fully unclothed and uncovered by a draping sheet. Respondent performed more passive stretching and then proceeded to administer manual therapy/massage to J.S.’s left adductor muscles, which run along the inside of the thigh from the knee to the pubic bone. The daily medical encounter record for March 5, 2015, does not document the subjective complaint or objective findings prompting this deep tissue/muscle work. J.S. confirmed in his testimony that he did not complain of hip pain, thigh pain, or groin pain. His understanding from Respondent was that the adductor work was a continuation of the loosening of muscles to address his hip rotation.5/ Respondent worked on the inside of J.S.’s left thigh from knee to groin. As he approached J.S.’s groin, he grazed J.S.’s scrotum and penis with the back of his hand. Respondent did not say anything and J.S. did not say anything. J.S. testified that he thought it was incidental contact and did not think anything of it. Respondent continued working on the inside of J.S.’s thigh. While Respondent was massaging the inner thigh, the back of his hand brushed the side of J.S.’s genital region once or twice more. J.S. did not think anything of this contact either, assumed it was accidental, and nothing was said about it. As a result of the grazing, J.S.’s penis became partially erect. Respondent finished working on J.S.’s left thigh, and walked around to the right side of the table to work on the right thigh. Respondent then gripped J.S.’s penis with his full hand, palm and fingers wrapped around, and he began stroking J.S.’s penis. Respondent stroked J.S.’s penis several times. J.S. testified that he was frozen in shock and did not say or do anything. He believes the stroking continued for approximately one minute,6/ but admitted that his estimate of the duration may not have been an accurate perception under the circumstances. J.S.’s testimony describing Respondent having wrapped his fingers around J.S.’s penis and stroked it several times was clear, consistent, and credible, and is credited. After Respondent released J.S.’s penis, Respondent apologized, saying: “Sorry, you got the best of me.”7/ He then instructed J.S. to turn back over, face down again, and he proceeded to treat J.S.’s upper back, neck, and shoulder area, providing quick applications of pressure. J.S. described this treatment as adjustment-like, not exactly the popping and cracking of joints that one might associate with chiropractic adjustments, but quick pressure to help with alignment. The upper back-neck-shoulder treatment continued for a few minutes. When Respondent finished the adjustments, he touched J.S. on his shoulder and said, “Our secret?” J.S. responded, “Sure.” J.S. explained that he just wanted to keep a low profile and be compliant, so that he could get dressed and leave the room as quickly as he could without causing a stir (as might result if a naked young man ran out of a treatment room). J.S. got dressed and left the room to go to the open physical therapy (PT) area, where he was scheduled for weighted neck treatment. He did not interact with anyone. Instead, he went directly to the weighted neck treatment chair on the far side of the open PT room facing a wall and sat down. The back of J.S.’s chair and the back of his head faced the open PT area, so he was not positioned to see or make eye contact with anyone else in the room. J.S. was in the treatment chair and had already begun weighted neck therapy when M.S. finished with his adjustment and went to the PT area to find J.S.8/ When M.S. entered the room, he saw that Respondent was there, too, standing at a computer station, four or five feet behind the back of J.S.’s treatment chair. M.S. walked over to J.S.’s treatment chair, and he could see that J.S. was upset. J.S. reached for M.S.’s hand, which M.S. said that J.S. hardly ever did, as they tried not to engage in public displays of their affection. M.S. stood next to J.S. for a while and then went to sit on a therapy ball in the middle of the room to wait for J.S. to finish. Based on the substantially more credible evidence, J.S. was visibly upset and uncomfortable while in the open PT area. His demeanor upon completing the neck PT therapy was captured on an office surveillance video showing part of the open PT room, and it confirms M.S.’s description of J.S. as upset. The recording (video only) for March 5, 2015, has a time counter that begins at 4:31:53 p.m. and stops at 4:33:29 p.m. J.S. was initially blocked from view, but became visible when he rose from the weighted neck treatment chair, turned, and traversed the room. Respondent and J.S.’s partner, M.S., were also in view in the video. Respondent testified that J.S. did not appear to him to be upset or uncomfortable when he was in the open PT room, but the office surveillance video discredits his testimony. Indeed, the video shows that not only did J.S. appear upset and uncomfortable, but also, Respondent himself was noticeably uncomfortable. Respondent did not say how long he was in the open PT area while J.S. sat in the treatment chair with his back to the room, but Respondent did not contradict M.S.’s testimony that Respondent was standing at the computer station four feet behind the back of J.S.’s chair when M.S. entered the room. That is where Respondent was at the beginning of the video. Respondent had no view of J.S. from that position, except possibly the top and back of J.S.’s head and shoulders. Respondent had a brief opportunity to see J.S.’s expression and demeanor when J.S. rose after his treatment to cross the room to M.S. The video shows this: J.S.’s eyes were downcast. He was not smiling. He did not appear happy or relaxed. Instead, he appeared uncomfortable and upset. Before J.S. walked past Respondent, J.S. reached up to his chest at the V-neck of his shirt, and then started rubbing the side and back of his neck, either in pain following the neck therapy or in discomfort. J.S. did not raise his eyes to look over to Respondent as he walked past the far side of the standing desk where Respondent stood behind a computer monitor. Respondent appeared to say something as J.S. walked by, but J.S. did not look at Respondent even when he said something. J.S. testified that he believes Respondent told him what room to go to for electrical stimulation (e-stim) treatment, but that J.S. did not look at Respondent because of J.S.’s discomfort. J.S.’s eyes remained downcast and he kept rubbing his neck. When J.S. got to M.S.’s side, Respondent said something in their direction. He stepped out from behind the standing desk and took a few steps toward J.S. and M.S. J.S., still holding his neck, only looked at M.S., who gestured in a direction out of camera range. J.S. walked off in that direction, still holding his neck, and M.S. stood up and turned to follow J.S. As J.S. started to walk away in the direction that M.S. had gestured, Respondent stepped back, awkwardly touching his right hand near the front of his pants at the hip, then back toward the right buttock, and then he wiped his right hand on his right buttock in an awkward gesture of discomfort. (Jt. Ex. 2 at 4:33:22-4:33:24). Respondent then walked back behind the standing desk, reached both arms out over the computer keyboard as if he was going to type something, then immediately jerked his arms and hands back in another awkward display, as if he did not know what to do with his hands. (Jt. Ex. 2 at 4:33:26). He again stepped out from behind the standing desk, walked a few steps back towards M.S., and said something. As he did, Respondent began rubbing his left wrist and hand with his right hand, continuing the uncomfortable, awkward gestures. (Jt. Ex. 2 at 4:33:27- 4:33:28). The office surveillance video stopped the next second, at 4:33:29 p.m. J.S. and M.S. both testified that J.S. was scheduled to receive e-stim treatment after the neck therapy. J.S.’s care plan called for e-stim, and he said that it was part of the regular treatment he received, in addition to adjustments, massage (manual therapy), and weighted neck physical therapy. E-stim treatment is administered by one of the chiropractic assistants in one of the private treatment rooms. Rather than stay for e-stim treatment, J.S. left with M.S. after letting someone know that he did not want to stay for the additional treatment.9/ After walking out of the office, J.S. broke down crying. J.S. and M.S. went to their car in the parking garage, and J.S. told M.S. what happened. M.S. called the police, and two officers arrived 15 minutes later. Apparently Officer Graham, a white male, spoke with J.S. first, and then both Officer Graham and Corporal Penix, a dark-skinned female (see P. Ex. 6 at 1:54), interrogated J.S. while recording the encounter with an audio and video recorder. A DVD of the encounter is in evidence. The video shows that J.S. was treated with a degree of harshness, as if he was an accused rather than a complainant. For example, at the beginning of the recording, Corporal Penix stated that Officer Graham was going to “read you your . . . ,” and then corrected herself to say that Officer Graham was not going to read him his rights, but was going to swear in J.S., so that his interview was under oath. (P. Ex. 5 at 0:37-0:41). J.S. was questioned by the police while he sat in the passenger seat of the car in the parking garage. M.S. was waved away by Corporal Penix as the officers approached the car, so M.S. stood nearby, out of the way. The audio part of the interview was not very good, with a lot of background noise (from the parking garage, among other things), but J.S.’s statements were consistent with his subsequent written statement and his video deposition, in all material respects. J.S. appeared upset and uncomfortable in expression, demeanor, and body language. He rubbed at the side of his neck throughout much of the questioning. Officer Graham asked J.S. if he was hard when Respondent was stroking his penis, and J.S. said yes. Officer Graham then asked if J.S. ejaculated. J.S. said no. The two police officers then went to the Florida Wellness office. Corporal Penix operated the video recorder, and began recording (video only) as the officers approached the glass front office, before opening the glass door. Respondent was visible through the glass, as he was in the lobby before the police entered the office. When the officers entered the lobby, Respondent reached out to shake hands with each of them, and ushered them back to a private treatment room.10/ Once secured in the private treatment room, Corporal Penix added the audio portion to the recording, and the interview began. Respondent was not read his rights or sworn in. He was asked what happened with J.S. He stated that J.S. had issues in a sensitive area, and Respondent was treating that area. He then said that there was a graze of his hand on J.S.’s genitals, “which elicited a sexual response.” Making a face, Respondent added, “and it stayed that way.” (P. Ex. 6 at 1:16-1:17). Respondent then said that it got a little awkward, so he told J.S. that if he is uncomfortable, Respondent could stop treatment, but J.S. said no, everything is fine. So Respondent said he proceeded for another eight minutes or so. Respondent then said that because it was “really awkward” in that eight minutes, Respondent stopped and left the room. He said he immediately informed his colleague about what happened and documented it as “part of the medical encounter.” (P. Ex. 6 at around 1:35). Respondent initially took the officers to a treatment room that did not resemble the room described by J.S. in his testimony. This room had a segmented adjusting table, not covered by a sheet, along with two chairs, a desk with a computer station, shelves, and several pieces of equipment. After Respondent completed his description of what happened, Corporal Penix asked if they were in the room where J.S. was treated, and Respondent said no. He escorted them to a smaller, low-lit room that matched J.S.’s description. The room was dominated by a massage-type table/bed with a pillowed face rest, diagonally centered so that there would be space to walk around it. Other than the treatment bed, there was not much in the room: a small dresser against the wall to the right of the door, a shelf against the wall to the left of the door, a small hamper next to the shelf, and two small wastebaskets on either side of the bed. No chair, stool, or equipment was visible in the room. The interview continued in the room where it happened. Officer Graham asked whether, when Respondent said he was working on a sensitive area, he was talking about the penis. Respondent quickly said no, then with hands gesturing, said (or stuttered), “Hip. Hip-hip, hip-hip.” (P. Ex. 6 at 2:24-2:25). Corporal Penix asked Respondent whether J.S. had his clothing on, and Respondent said J.S. had taken his clothes off. Corporal Penix then asked whether J.S. kept his underwear on, and Respondent said no. When asked if he typically had his patients completely undress, Respondent said that it depends on what kind of treatment they need, and that for J.S., he was an ex-dancer, and “did a lot of splits and things in his groin area.” (P. Ex. 6 at 2:87). Officer Graham summarized what he had written down in his notes, including that Respondent said he grazed the genitals with his elbow or arm. Respondent corrected him, saying that he grazed the penis with his hand and forearm, pointing to the outside of his left hand, followed by a sweeping gesture up his forearm to just below the elbow. (P. Ex. 6 at 3:20-3:22). Officer Graham continued with his summary, stating that Respondent’s grazing action caused J.S.’s penis to be erect. Respondent appeared to hesitate before confirming that statement, so Officer Graham added, “Or was it already erect?” Respondent first said that it seemed a little, maybe, but then said that he was not really focusing on it. (P. Ex. 6 at 3:27-3:32). Corporal Penix then asked Respondent to show the positioning and movement: where J.S. was on the bed and how Respondent was moving with his arm to show how it grazed. (P. Ex. 6 at 3:50-3:59). Respondent said that J.S. lay on his back, with his head at the top of the bed (where the pillowed face rest is). Respondent then showed his positioning: he stood on the side of the bed where J.S.’s left side was, facing the top of the bed where J.S.’s face would have been. Respondent said he was working on J.S.’s adductors, gesturing to the imaginary thigh closest to where Respondent stood. Respondent demonstrated the movement of his left hand and forearm while working on J.S.’s adductors. From Respondent’s positioning, showing the pressure he was applying to an imaginary inside thigh on the half of the bed closest to where Respondent stood, Respondent demonstrated that he was working on J.S.’s left adductors. Respondent then made a sliding gesture forward (towards J.S.’s face) and across (from J.S.’s left inner thigh to J.S.’s left hip), demonstrating how Respondent’s left hand and forearm slid across J.S.’s groin area. (P. Ex. 6 at 4:00-4:11). At the hearing, Respondent testified to an entirely different scenario resulting in the grazing. Respondent did not say that he was standing next to J.S.’s left side, facing in the direction of J.S.’s face, with Respondent’s hand and arm movement going forward, sliding across J.S.’s genitalia. Instead, at the hearing Respondent said that he was sitting in a chair (also described as a stool) on the right side of the table, in line with J.S.’s knees, reaching across his right knee to work on the left adductors from knee to groin. Respondent said that J.S. was draped with a sheet across his genitals, and that as Respondent approached the groin area, Respondent made contact with something, looked up, and saw that what he made contact with was J.S.’s penis, which was fully exposed. Respondent said that he did not notice that J.S.’s penis had become uncovered by the sheet, because Respondent was looking at J.S.’s left knee. He said that he made contact with the medial aspect of his left hand and his wrist, though he said it was more wrist than hand. Several weeks earlier in deposition, Respondent testified that he could not remember which side of the treatment bed he was on or which leg he was working on when the grazing occurred. He also said that he grazed J.S.’s genitals with the medial aspect of his hand and “potentially the wrist.” (P. Ex. 13 at 65). Respondent admitted that when his hand/wrist touched Respondent’s penis, it was skin-on-skin contact. But Respondent claimed that J.S. was draped with a sheet the entire time, except for when J.S.’s penis became exposed. Respondent said that his position, sitting on J.S.’s right side at knee level, with his focus towards J.S.’s left knee, kept him from noticing the sheet had slipped, exposing J.S.’s penis, until contact was made. It is, perhaps, conceivable that someone seated in a chair or stool on the right side of a massage table, staring only at the left knee of a person laying face up on the table, might not be able to see an exposed penis, if the person on the table were to suddenly be exposed. However, it is not conceivable that Respondent, from that position, could reach up and over the right leg of his patient to apply compression pressure effectively with the hard part of the palm to the inner thigh of the patient’s left leg. It is even more inconceivable that Respondent would remain focused on the patient’s left knee while Respondent applied that compression pressure all the way down the inner thigh from the knee to the groin. That is a contortion that defies logic. Respondent’s testimony at hearing was not as credible as his demonstration to the police an hour or so after the incident. The changes in the description appear calculated to support his claims that J.S. had been draped with a sheet until it somehow moved, and that Respondent would not have noticed J.S.’s exposed penis until after he touched it. Respondent’s demonstration of his own positioning and movements shortly after the incident leaves no doubt that, had J.S. been draped and had the drape accidentally slipped before contact, Respondent surely would have seen it and professionally would have been obliged to correct the draping. The police officers asked Respondent if they could speak with the colleague to whom he reported the incident, and he agreed to let them talk to Holly Ridge, D.C. Dr. Ridge reported that Respondent took her into the treatment room where the incident happened, immediately after it happened. She said that Respondent told her that during an acupuncture session with J.S., while working on J.S.’s adductors near his groin, there was an accidental grazing of Respondent’s hand on J.S.’s penis, which resulted in sexual arousal--an erection. Respondent told her that he asked J.S. if he was uncomfortable, and that he could stop treatment, but J.S. said he was fine. Dr. Ridge added that she and Respondent discussed documenting the incident, and Respondent wanted her opinion about where to record it. They agreed it should go in the “patient notes” section of the patient chart, and Respondent did that. In the Florida Wellness EMR system, the “patient notes” section is not part of the patient’s medical records. It was described as for internal communications, such as whether a patient prefers to go by her middle name instead of first name. It was Respondent’s intention to create the note as “evidence,” but to exclude it from the daily medical encounter report. Therefore, Respondent’s note of the incident is not found in J.S.’s daily medical encounter record for March 5, 2015. In fact, the “note” is not in evidence, because Respondent only offered a screenshot of a computer image as opposed to an actual printout, and the screenshot provided at hearing was not legible. Nonetheless, Dr. Ridge was permitted to testify to the note’s contents, and Respondent was permitted to testify that the time stamp on the screenshot was 4:48 p.m., on March 5, 2015. Respondent said that he did not want to include his note regarding the incident in the actual medical encounter record, out of fear that it would create problems for J.S.’s lawsuit regarding the automobile accident, an explanation that makes no sense. Respondent told the police that he documented the incident as part of the medical encounter, earning him a comment from Corporal Penix that Respondent did the right thing. Respondent and Dr. Ridge both told the police that Respondent reported the incident to Dr. Ridge immediately after it occurred. Respondent testified in his deposition that he reported the incident to Dr. Ridge immediately or within a few minutes afterward; his memory was that it was the first thing he did after finishing J.S.’s treatment. But that is not what happened. Once again, there is a timeline problem. After the incident, and after J.S. got dressed and went to the PT area for his weighted neck therapy, Respondent also went to the PT area. It was not until after Respondent saw that J.S. was upset when J.S. finished his neck treatment--and Respondent showed some discomfort himself--that Respondent sought out Dr. Ridge and the internal note was created, approximately 15 minutes after the end of the office surveillance video. Respondent apparently realized the timeline problem before the hearing, because his testimony was revised to say that he talked to Dr. Ridge after he was in the PT area (without offering an explanation for the inconsistencies). The record is replete with other inconsistencies, large and small, in Respondent’s explanation of the incident itself.11/ Touching on just a few, Respondent testified in deposition and at hearing that the incident was not awkward, nor was the completion of treatment to J.S. after the incident. In contrast, Respondent told the police that the incident was awkward, and that it got “really awkward” in the eight minutes during which Respondent said he continued treatment. Respondent testified that he did not notice J.S.’s penis before contact was made, and after contact he immediately covered J.S.’s genitalia and did not notice the condition of J.S.’s penis thereafter. But Respondent told the police that J.S.’s penis “seemed a little, maybe” erect before the grazing, that the grazing elicited a sexual response, and (making a face) that it stayed that way. Respondent’s final step, taken the following morning, was to speak with J.S.’s attorney at Morgan & Morgan, and accede to the attorney’s request for Respondent to determine that J.S. had achieved maximum medical improvement, a legal term of relevance to the attorney in the lawsuit against the person who hit M.S. and J.S.’s automobile. From November 10, 2014, through March 5, 2015, each of J.S.’s daily medical encounter records had the same care plan: Based on the patients [sic] presentation, and current prognosis, it is my opinion the patient should be treated with manipulative and physiological therapeutics three times a week for four to six weeks. These therapies will consist of therapeutic exercises, stretching, mobilization/manipulation of involved joints, trigger point treatment and electric muscle stimulation. (Jt. Ex. 1 at Bates 9). The plan changed overnight, without any re-evaluation of J.S. At 9:55 a.m. on March 6, 2015, Respondent electronically signed, after reviewing and revising, an “update” to J.S.’s care plan. In the update, Respondent concluded as follows: “I believe that [J.S.] has reached a point of Maximum Medical Improvement from our conservative care. He is released from my care and should return to a different chiropractic physician if [needed in the future].” (Jt. Ex. 1, Bates p. 74). Although Respondent opined in the medical record (at the attorney’s request) that J.S. “has” reached maximum medical improvement, Respondent testified in deposition and at hearing that it was only a “possibility” that J.S. had “potentially” reached maximum medical improvement. (P. Ex. 13 at 118; Tr. 303). Respondent admitted he discharged J.S. as a patient because J.S. complained to the police about the incident. Respondent said he regrets not documenting in the medical record the real reason he discharged J.S. (but that would have undercut his opinion that J.S. had reached maximum medical improvement). After March 5, 2015, J.S. did not attempt to return for more treatment by Respondent or anyone else at Florida Wellness. J.S. enlisted in the United States Navy. He testified in April 2019 by video deposition in lieu of hearing testimony while on his last vacation before going to Mississippi for four months of training, followed by deployment to Guam. After March 5, 2015, M.S. stopped going to the Franklin Street location of Florida Wellness, which is the only location where Respondent sees patients. M.S. still goes to Florida Wellness, but at a different location with different physicians. J.S. and M.S. are no longer in a relationship. They split up in 2017. No lawsuit was brought against Respondent by J.S. and/or M.S. on account of the incident. Summary with Ultimate Findings of Fact There has never been a dispute that Respondent came into skin-on-skin contact with J.S.’s genitalia. The issue is whether, as J.S. asserted, there was intentional contact. Respondent denied that he grabbed J.S.’s penis and stroked it, but Respondent never landed on a credible explanation of the skin-on-skin contact that he admits did occur. His ever-shifting descriptions of the incident, including where he was (left or right side, sitting or standing), how contact was made with what part of Respondent’s hand and/or wrist and/or forearm, how J.S.’s penis came to be exposed, and how Respondent could not have noticed an exposed partially erect penis before coming into contact with it, undermine the credibility of Respondent’s claim that the contact was accidental. In addition, Respondent admitted, initially, that he remained in the treatment room while J.S. fully disrobed. Respondent’s attempt to later deny that he had done so and offer an incongruous explanation for his prior admission substantially undermined Respondent’s credibility. What is left is the impression that the truth was retracted upon reflection that admitting to inappropriate conduct to start the treatment session casts doubt on Respondent’s explanation of what happened thereafter. The credible, clear, and convincing evidence establishes that Respondent intentionally touched J.S.’s penis, grasping and stroking it, on March 5, 2015. Respondent had no medical reason to touch J.S.’s penis, as the parties stipulated. The parties also stipulated that a chiropractor who has purposely made intentional physical contact to a patient’s penis for non-diagnostic or non-therapeutic purposes has committed sexual misconduct. Having purposely made intentional physical contact to J.S.’s penis for non-diagnostic and non-therapeutic purposes on March 5, 2015, Respondent committed sexual misconduct.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Chiropractic Medicine, enter a final order finding Respondent guilty of violating section 460.413(1)(ff), Florida Statutes (2014), through a violation of section 460.412, Florida Statutes (2014), and rule 64B2-17.0021, as charged in the Amended Administrative Complaint; revoking Respondent’s license to practice chiropractic medicine; and imposing costs of the investigation and prosecution of this case. DONE AND ENTERED this 13th day of September, 2019, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR 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 13th day of September, 2019.
Findings Of Fact By application dated September 28, 1988 respondent/applicant, Southwest Florida Regional Medical Center, Inc. (SFRMC), filed an application with respondent, Department of Health and Rehabilitative Services (HRS), seeking the issuance of a certificate of need (CON) authorizing the expenditure of approximately $19.98 million to construct a new three story clinical and ancillary services building at its facility located in Fort Myers, Florida. After the application was filed, and certain additional information was provided by SFRMC, HRS issued proposed agency action in the form of a letter on January 13, 1989 advising that it intended to issue SFRMC a CON. On February 3, 1989, HRS published in the Florida Administrative Weekly a notice of its intent to grant the CON. After learning of this action, petitioner, Lee Memorial Hospital (Lee), filed a petition for formal administrative hearing seeking to contest the proposed agency action. That prompted this proceeding. The state agency action report, which is a part of this record, reflects that the applicant proposes to: ... add 4 additional operating rooms to the existing 11; 16 new cardiac surgery recovery beds to the existing 16; and 8 new CCU beds to the existing 8 (by conversion of med/surg beds) in a new three story building that will be a replacement/expansion to the existing facility. The requested project will not constitute an increase in the licensed beds of the applicant's facility. The proposal does not request approval of any new services or change in the total number of beds that are licensed for the applicant's facility, but it does include redesignation of 8 existing medical/surgical beds to add to the 8 additional CCU beds requested. New space for Central Supply Services, as well (as) new and additional administrative, staff support areas, land public areas have been planned. (Emphasis added) These changes were sought by SFRMC to meet "(t)he need and demand for Cardiac services (that have) increased dramatically over the last seven years due to the community's growth, technological advancements and changing clinical practices." According to the allegations in the petition, Lee operates a health care facility in Fort Myers, Florida, which is in the same health planning district as SFRMC. The petition goes on to aver that Lee provides a wide range of medical services and programs, including cardiac surgery and recovery, cardiac catheterization laboratories, CCU, and non-invasive diagnostic cardiology services as proposed in SFRMC's application. The petition alleges further that, due to the sheer size of the project and the "substantial change" in services that will occur, Lee is entitled to a hearing. Based upon these considerations, Lee alleges that its open heart surgery program will be substantially affected if the CON is issued. HRS has authorized Lee to operate an open heart surgery program. However, by stipulation dated March 28, 1988 in DOAH Case No. 87-4755, it has agreed not to begin this program until at least April 1, 1990. If approved, SFRMC's building addition would not be completed until May 1, 1990, or one month after Lee's program begins. The application reflects that SFRMC will increase its total square footage by 25%, operating room capacity by 57%, and SICU capacity by 64%. In all, the project will add approximately 68,000 square feet to the facility complex. In addition, operating expenses associated with the project will total in excess of $28 million per year. Finally, utilization of existing facilities will be enhanced by the new addition.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Southwest Florida Regional Medical Center's motion to dismiss the petition of Lee Memorial Hospital be GRANTED and that Lee's petition for formal administrative hearing be dismissed with prejudice. DONE AND ORDERED this 27th day of April, 1989, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 1989.
The Issue The issue for consideration in this case is whether the Respondent's license as a certified respiratory therapy technician in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the allegations herein, the Petitioner was the state agency in Florida responsible for the licensing and regulation of the respiratory therapy profession in this state, and Respondent was licensed as a respiratory therapy technician under license number TT 0004476. On January 17, 1990, the Advisory Council on Respiratory Care of the Board of Medicine entered an Order granting Respondent licensure as a respiratory therapy technician conditioned upon his passage of the licensure examination and, as pertinent here, "contingent upon his entering into and successfully participating in the Physicians Recovery Network (PRN) program." The Order also provided, "Successful participation shall require fulfillment of any requirements set by the PRN program." A copy of this Order was furnished to the Respondent shortly thereafter and he interposed no objection to the terms thereof. Just previous to that Order, Respondent had entered into an Advocacy Contract with the Impaired Practitioner Program of Florida, administered by the PRN, by which he agreed, inter alia, to participate in random urine drug and or blood screen programs through Dr. Krone within twenty-four hours of notification, and to contact the office of the PRN by monthly letter. It must be noted that the requirement to participate in random urine testing was not limited as to the number of tests Respondent would be required to undergo, and it also must be noted that the requirement to contact the PRN by monthly letter did not specify the content of the letter. However, Dr. Goetz, the Director of the program, indicates that in a conversation he had with Respondent at the time the contract was signed, he indicated to Respondent that he should advise the Network he had abstained from drug use during the period and was experiencing no difficulties in his work because of drugs. Respondent claims not to recall such a conversation, but it is found such conversation was likely in light of the purpose of the program. Nonetheless, Respondent did not file the required monthly letters with the Network though there is some evidence he did participate in the random testing required. The file maintained on Respondent by the Network, however, reveals he was somewhat "testy and obnoxious" in his dealing with Network personnel. In that regard, however, Respondent indicates he had what appears to be a personality clash with a Network representative, Mr. Westmoreland, and his attitude toward Network personnel may well be the result of Westmoreland's approach to Respondent. This does not excuse Respondent's use of gutter language and profanity in some of the oral and written communications he had with the Network, but there was, originally, no requirement in the contract for politeness. In September, 1990, when Respondent had not submitted the required written communications, he was contacted and reminded of his obligation. At that time, he gave some vague explanation for not complying, and as a result, the Network, on October 2, 1990, entered into a new contract with Respondent which, back dated to December 1, 1989, the date of the original contract, again included the requirement for random urine testing and monthly letters - identical to the requirements in the original contract. Thereafter, Respondent still failed to file the written communications until, in June, 1991, he sent in a short, caustic letter. Thereafter, in July, August and September, 1991, Respondent filed short one or two sentence letters which merely indicated the note was full compliance with the contract terms. In the letter sent in by Respondent in October, 1991, he added the comment he had never been chemically dependent on any substance. On November 19, 1991, Ms. King, for Dr. Goetz, advised Respondent in writing of his responsibility to enter and successfully participate in the program of the PRN, and that unless he contacted the Network within seven days to present his proposal to cooperate in meeting the terms of the contract, it would be reported to the Respiratory Council that he had not successfully cooperated in their program. The letter does not tell Respondent wherein he has been delinquent, however, and only by implication asserts his lack of successful cooperation. In response to that letter, on December 4, 1991, Respondent wrote a scathing indictment of the tactics employed against him by Network personnel, specifically Mr. Westmore [sic]. After reiterating his contention that he has never taken drugs for any purpose and that his conviction on the possession charge was, at least in part, because of his race, in sometimes gross language he indicated his frustration with the program and his desire to be taken off it if it was the Council's intention to keep him on it for the rest of his life. Upon receipt of that letter, Dr. Goetz, on behalf of the Network, advised the Respiratory Council by letter that the Network had been unable to successfully monitor Respondent in its program, and offered to forward background information to support that conclusion. It would appear that upon the receipt of that information, the Council contacted the Department's legal section and, after a review of the file by that agency, was advised that Respondent had not violated his contract. Therefore, in an effort to salvage the relationship with Respondent, the Network prepared another contract for Respondent which included a reiteration of the requirement for random urinalysis and for the monthly contact, though this time, the contact was to be by telephone to Dr. Goetz only or, in his absence, his designee. This was to obviate the potential of Respondent getting into any dispute with other staff members. In addition, however, a requirement was added that Respondent be courteous and cooperative in all contacts with the PRN staff and representatives. Respondent refused to sign that contract even though it, too, was back dated to December 1, 1989, and his signature would not have added any time to the period of observation. Instead, on August 17, 1992, Respondent wrote to Dr. Goetz, again outlining his position that he was in full compliance with the PRN requirements and complaining of what he saw as the unfairness of the requirements placed upon him. After fully describing what he considered to be the inappropriateness of the requirements, he outlined his position on the various paragraphs of the proposed contract and indicated he would sign it only if he were guaranteed he would get full credit for time already spent in the program, and the total time of enrollment is reduced below five years. Upon receipt of that letter, Dr. Goetz telephonically contacted the Department's legal section and was advised to obtain a psychiatric evaluation of the respondent. Attempts were made to contact Respondent through September, October and November, 1992, both by telephone and by certified letter. Phone messages were not returned and the certified letter was not accepted. In this regard, Respondent claims he did not receive the letter, possibly because of a residential move. However, he did not indicate when this move took place, and as a result, it is impossible to determine if that is the reason for the nondelivery of the letter or if Respondent merely refused to accept it. Thereafter, in December, 1992, a letter was sent to the Department's legal staff by the Network, forwarding a copy of the latest contract and Respondent's response thereto. In the following February, the Department counsel was advised by Network that it was unable to establish cooperative monitoring of the Respondent and that Respondent was in violation of paragraphs 1 and 4 of the contract, relating to random urinalysis and monthly communication. It would appear that Respondent neither submitted to urinalysis nor had any monthly contact with the Network subsequent to his letter to Dr. Goetz in August, 1992. Respondent admits it is not in his best interests not to comply with the terms of the contracts he executed with the Network, and he would like to comply with as little friction as possible. However, he claims, shortly after the execution of the original contract, he received a call from Mr. Westmoreland indicating he was not complying. When he asked for an explanation, he was brusquely told, "read the contract", without further explanation. It was only when he spoke with another Network representative, Ms. Crummy, that he was told wherein he was delinquent. At that time, he also got the second contract. Notwithstanding Dr. Goetz had discussed the terms of the contract with Respondent at or shortly after the signing, Respondent contends he was not aware of the requirements for monthly letters, claiming he believed he had only to submit to the random urinalysis. In light of the Respondent's educational level, and the extreme simplicity of the contract language, it is impossible to accept that Respondent didn't know what was expected of him, and it is so found. Respondent has always contended he was not a drug user and denied he had any dependency on drugs. Therefore, he claims, he did not see any reason to send in a monthly letter nor did he know what the letter should include. For that reason, he asserts, he merely used the short form letter utilized in the early responses. When he was advised that was not sufficient, he wrote a longer letter which said much the same. He claims not to know what more he could have said. Respondent relates an ongoing disagreement with Mr. Westmoreland, and was, because thereof, transferred to the monitoring of Mr. Fontaine. In November, 1991, he was called for a urinalysis but had no money to pay for it. In light of the fact that Dr. Krone, the physician performing the urinalysis, reportedly had changed his procedure to require cash in advance, Respondent indicated he would take the test when he got paid later in the month. Mr. Fontaine agreed to this, but shortly thereafter, Mr. Westmoreland called Respondent and directed that he take the test. According to Respondent, Westmoreland said he didn't care where Respondent got the money to do so. Though the discussion between the two men became heated, the test was done. In December, 1991, Respondent received the letter stating he was no longer enrolled under the supervision of the PRN and was being reported for noncompliance. He claims that when he called the Network about this, they would not discuss it with him, merely stating he was out. When the Department started its investigation, Respondent spoke with the investigator, Mr. Hannah, and requested he be informed of what was determined. He claims he never received any notice from either the Department or PRN. He subsequently found out it had been determined he had done nothing wrong, but the Network sent him a new contract anyway. This last contract included the requirement for courtesy. Because Respondent felt he had done nothing wrong, he refused to sign it and wrote the letter setting out what he would agree to do and what he would not agree to. He has not received any response to that letter and as far as he is concerned, is still waiting. He believes he has been cancelled from the program, and without the new contract, he is not a part of the Network and has no requirement to cooperate in a program in which he is no longer enrolled. Respondent claims he does not refuse to cooperate but wants a contract which incorporates his terms as he outlined them in his August, 1992 letter to Dr. Goetz. In addition, since he feels he did nothing wrong, he wants an apology from someone. He asserts he has complied with the terms of the Board's Order in that he passed the test and has successfully cooperated with and complied with the requirements of the network as he understood them.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that The Board of Medicine enter a Final Order in this case finding that Respondent, Leonard T. Campbell, violated the provision of Section 468.365.(1)(i), Florida Statutes, by failing to successfully participate in the PRN program mandated by the Board's Order of January 23, 1990, imposing a reprimand, and revoking his certification as a respiratory therapist technician, such revocation being suspended for two years conditioned upon his execution of an advocacy contract with the PRN, successful compliance with the terms and conditions of that contract, and such other conditions as the Board deems appropriate to the circumstances. RECOMMENDED this 11th day of May, 1994, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 11th day of May, 1994. COPIES FURNISHED: Alex D. Barker, Esquire Department of Business and Professional Regulation 7960 Arlington Expressway, Suite 230 Jacksonville, Florida 32211-7466 Leonard Campbell, R.T.T. 8215 North 9th Street Tampa, Florida 33604 Dr. Marm Harris Executive Director Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay Acting General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact On July 6, 1982, the Respondent received an application for licensure by endorsement submitted by the Petitioner. By a notice of intent to deny dated January 18, 1983, the Respondent notified the Petitioner that it was denying his application. The Respondent expressly stated in its notice that this denial was because the Petitioner "did not average 75 percent on FLEX weighted average on the licensure examination of the Federation of State Medical Boards of the United States, Inc., as required in Rule 21M-29.01(2) , Florida Administrative Code," and because he "is not certified by the National Board of Medical Examiners as having completed its examination, within ten years immediately preceding the filing of the application for licensure by endorsement, as required by Section 458.313(1)(d), Florida Statutes." Prior to June, 1980 the Federation of State Medical Boards of the United States, Inc., which prepares and administers the FLEX examination, mathematically calculated the final weighted average by a round up method. Thus, a weighted average of 74.50 percent to 74.99 percent was rounded up to 75.0 percent and was deemed to be a passing grade by the Board. Beginning with the June, 1980 examination, the Federation changed its policy. Since then the weighted average is no longer rounded up, but the decimal or fraction is dropped entirely. Scores of 74.99 percent are now rounded down to 74.0 percent. The FLEX scores presented to the Respondent by the Petitioners produce a FLEX weighted average of 74.6 percent. Because scores have been rounded down since June, 1980 the Petitioner's 74.6 percent score was treated as 74.0 percent, and the Petitioner was found not to meet the 75.0 percent requirement. Although the Petitioner testified that he knew of one other individual with similar scores who was licensed by the Respondent, he produced no corroborative evidence to support this self-serving assertion, and he introduced no evidence to show why, in view of the FLEX requirement of 75.0 percent, he is entitled to licensure.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the application for licensure by endorsement filed by the Petitioner, Esmat Adly Zaklama, M.D., be DENIED. DONE and RECOMMENDED this 10th day of May, 1983, in Tallahassee, Florida. COPIES FURNISHED: Esmat Adly Zaklama, M.D. 7 Hegeman Avenue No. 7-H Brooklyn, New York 11212 WILLIAM B. THOMAS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of May, 1983. John E. Griffin, Esquire Assistant Attorney General The Capitol, Suite 1601 Tallahassee, Florida 32301 Dorothy Faircloth, Executive Director Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32301 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact The Department of Health and Rehabilitative Services (HRS) received a letter of intent (LOI) dated October 21, 1988 from "Ocala Healthcare Associates Joint Venture." That letter of intent provided that the proposed applicant sought to add twenty-five community nursing home beds to its 35 bed facility then under construction, in HRS District 3 in Marion County, Florida. The letter of intent was a prerequisite to filing an application for a certificate of need (CON) authorizing those beds. The October 21, 1988 LOI was accompanied by a "certificate of resolution" of Ocala Healthcare Associates Joint Venture of even date. That resolution was certified by Winston A. Porter. HRS generally does not recognize a joint venture as a legal person or entity capable of applying for and holding a certificate of need, based upon an opinion of its legal counsel and based upon the fact that Chapter 10-5 Florida Administrative Code, at its definition of "applicant" does not include the entity known as a "joint venture." There is no specific prohibition, by statute or rule, against joint ventures holding certificates of need, however, and the Department's witness, Ms. Gordon-Girven also acknowledged that the Department has no specific policy prohibiting issuance of a CON to a joint venture. In any event, on November 23, 1988, "Ocala Healthcare Associates General Partnership" filed an application for a certificate of need pursuant to the previously filed letter of intent. In its letter of December 2, 1988, HRS rejected that application on the basis that "the applicant submitting the application was not the same as the applicant identified in the letter of intent." Upon learning of this, Mr. Winston A. Porter, the owner of the parent entity and chief operating officer of the applicant entity, or general partner, immediately notified HRS that the joint venture named in the letter of intent and the general partnership named in the application were actually one and the same entity and that the use of the term "joint venture" in the letter of intent and resolution was a mere clerical error. In corroboration of this position, in fact, Ocala Healthcare Associates general Partnership (Ocala) had already altered its form from a joint venture to a general partnership by way of "an amendment and conversion of Ocala Healthcare Associates Joint Venture to General Partnership Agreement" entered into and dated December 10, 1987. That conversion agreement had been done at the behest of HRS, based upon its advice to Mr. Porter and Ocala Healthcare Associates, Inc. that the Department did not recognize joint ventures as capable of holding certificates of need. It was thus done to comply with HRS' own requirements. HRS does not license joint ventures to operate nursing homes but does license general partnerships for that purpose. The minimum requirements for the certificate of need application require that the legal name of the applicant and parent corporation be given. Rule 10-5.008(1)(d), Florida Administrative Code quoted below, contains no specific "minimum requirements" regarding how the name of an applicant should be listed on an application nor that it should agree or be the same in all cases as that depicted on the letter of intent. The Rule merely incorporates the application form as to "minimum requirements" by reference. The form, in turn, requires only that the applicant's name be entered, not that the name be the same as that on the letter of intent. Ocala, on its certificate of need application listed its legal name just as it truly is, that is, Ocala Healthcare Associate General Partnership. It, of course, had listed its name by mistake, on the letter of intent as "Ocala Healthcare Associates, Joint Venture." The CON application, however, also indicated that the current general partnership, Ocala Healthcare Associates General Partnership, was indeed the same entity as the former joint venture. Further, HRS was on constructive and actual notice of the change in business form undergone by Ocala at HRS' behest in December, 1987. Be that as it may, however, no rule or policy of the Department specifically states that an application for a CON and the related letter of intent must be filed by exactly the same entity. In fact, however, here the evidence shows that the letter of intent and the application were actually filed by the same entity. The controlling and owning members or partners of Ocala Healthcare Associates General Partnership were listed in the letter of intent, even though it was mistakenly called a joint venture, and were also listed in the application. They were named as, and are, one and the same entities. Further, the minimum requirements depicted in the application form say nothing about the applicant's name and the name depicted in the letter of intent being identical. HRS' position that the letter of intent and the application be identical or filed by the same entity is designed to put potential competitors on notice of who the new attempted market entrant is. Here that purpose was accomplished anyway. Ocala never attempted to mislead anyone by its filing of the letter of intent under the "joint venture" name. The joint venture is owned and controlled by the same entities as the general partnership and the component parts of the joint venture and general partnership are identical. Further, HRS personnel involved with this matter were on notice, both constructively and actually, that the joint venture had been dispensed with and the general partnership had supplanted it. Finally, the agency was not prohibited from notifying Ocala of the apparent discrepancy in the names depicted on the letter of intent and on the application, but it took no such action, even though its certificate of need review personnel were on actual notice that Ocala had altered its business form from that of joint venture to general partnership.
Recommendation Having considered the foregoing findings of fact and conclusions of law, the evidence of record and the candor and demeanor of the witnesses, it is therefore, RECOMMENDED that a Final Order be entered accepting Ocala's application for a certificate of need for comparative review with other applicants in the November 1988 batching cycle. DONE AND ORDERED this 2nd day of June, 1989, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of June, 1989. APPENDIX Petitioner's Proposed Findings of Fact: Paragraph 1: Accepted. Paragraphs 2-16: Accepted. Respondent's Proposed Findings of Fact: Paragraph 1: Accepted. Paragraph 2: Accepted. Paragraph 3: Accepted. Paragraph 4: Accepted. Paragraph 5: Accepted. Paragraph 6: Accepted. Paragraph 7: Rejected as contrary to the preponderant weight of the evidence and as subordinate to the hearing officers findings of fact on this subject matter. Paragraph 8: Rejected as to its' material import and as contrary to the preponderant evidence and subordinate to the hearing officers findings of fact. Paragraph 9: Rejected as not material to resolution of the narrow range of issues in this proceeding. COPIES FURNISHED: R. Bruce McKibben, Jr., DEMPSEY AND GOLDSMITH Post Office Box 10651 Tallahassee, FL 32302 Richard H. Patterson, Assistant General Counsel Department of Health and Rehabilitative Services 2727 Mahan Drive Tallahassee, FL 32308 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
Recommendation The action of the Board in denying the application of Petitioner was correct and should be affirmed. DONE and ENTERED this 7th day of August, 1984, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of August, 1984. COPIES FURNISHED: Dr. George D. Skiadas 1460 Gulf Boulevard, #1112 Clearwater, Florida 33515 John Griffin, Esquire Department of Legal Affairs The Capitol Tallahassee, Florida 32301 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Dorothy Faircloth, Executive Director Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Mrs. M. L. Croft was called and sworn and testified that she was a R.N. and was employed from October 1974 until March 1975 at Bay Convalescent Center, Panama City, Florida as the Director of Nursing. On or about November 1, 1974, several events came to her attention which caused her to look into the patient care rendered by Mrs. Parrish to patients and coworkers at Bay Convalescent Center. On November 1, 1974, she received a call from the father of an employee of Bay Convalescent Center, Ruby Goodman, a nurse's aide, who advised Croft that his daughter was ill and that she had received some medical care from Mrs. Parrish. Croft determined by an examination of records and a discussion with Mrs. Parrish that Mrs. Parrish had administered penicillin, darvon, and emperin to Ruby Goodman. Mrs. Parrish admitted that she had administered these medications to Ruby Goodman but stated to Mrs. Croft that she had not known it was against the rules. with regard to Ruby Goodman, Mrs. Parrish testifying in her own behalf said that she had thought that it was the policy of the Center to treat its employees based upon a prior occurrence when an employee had reported sick and another Registered Nurse had given medications to the employee. Ms. Croft stated that she had also examined the charts kept by Mrs. Parrish during the month of October 1974. These included the chart of Ellis Roberts for the period of October 4 until October 30, 1974, which the witness identified and was received as Exhibit 1. There is no entry contained on Exhibit 1 for 12:00 midnight, October 12, 1974, and thereafter at 12:00 midnight and 6:00 a.m. from October 13 until October 17, 1974, indicating whether the patient received or refused ampicillin. Because no entry was made it cannot be determined whether a charting error had occurred, or whether Roberts received or refused his medication. No entry was made in the nurses' notes (Exhibit 4) indicating a change in medication or procedure for the administration of ampicillin. Ms. Croft testified that she counted the number of pills in the ampicillin bottle assigned to Roberts on the morning of November 1, 1974, and there were two more capsules present than there should have been. Exhibit 1 would indicate that Roberts possibly did not receive ampicillin on a total of eleven occasions between October 12, 1974 and October 17, 1974, when the medication was discontinued. Based upon Exhibit 1, Ms. Croft should have discovered eleven extra capsules of ampicillin on hand in Roberts' ampicillin bottle. Neither the testimony nor Exhibit 1 indicates who was caring for the patient, Roberts, on the evening of October 12, 13, 14, and 17, 1974. Ms. Croft testified that Mrs. Parrish was on duty during the night shift, 11:00 p.m. until 7:00 a.m. on October 15 and October 16, 1974. Mrs. Parrish testified that she could not recall the events well but that she had withheld medication from Roberts only on one occasion and that was on doctor's orders when Roberts had run a high temperature and Mrs. Majors, R.N., had taken over charting of the patient. On that occasion because of the patient's temperature all medications were discontinued and the patient packed in ice and given an alcohol rub according to Mrs. Parrish. She further explained that Mrs. Majors had handled the charting and entered the doctor's orders upon the patient's records, therefore, she did not know why the instructions to discontinue ampicillin did not appear in the doctor's order notes for October 15, 1974. Having examined the nurse's notes and doctor's orders for October 15, 1974, Mrs. Parrish in response to the Hearing Officer's inquiry, could not identify the aforementioned incident with Roberts. Exhibit 4 indicates that Roberts first had ice packs applied on the night of October 29, 1974, in response to a serious change in his condition. The charting of the patient's condition for October 29, 1974, was by Mrs. Majors, R.N. With regard to the charges against Mrs. Parrish relative to the patient Ellis Roberts, the Hearing Officer concludes that the evidence presented does not prove that Mrs. Parrish failed to administer ampicillin as ordered by the attending physician because the records indicate eleven occasions upon which the drug was possibly not administered while Ms. Croft's pill count indicates only two extra ampicillin pills. Exhibit 4, the nurse's notes for October 10, 1974 through October 18, 1974, do not reveal any entries by Mrs. Parrish. The absence of entries on Exhibit 1 makes it impossible to determine when or if Mrs. Parrish was on duty. However, the uncontroverted testimony of Ms. Croft was that Mrs. Parrish was on duty during the period 12:00 midnight and 6:00 a.m. on the nights of October 15 and 16, 1974. Exhibit 1 clearly indicates that at error in the charting of ampicillin occurred at 12:00 midnight and 6:00 a.m. on October 15 and 16, 1974. Ms. Croft testified further that she had examined the chart of Anita Pritchard, which she identified and which was received as Exhibit 2. This exhibit indicates that the patient did not receive a prescribed does of lanoxin by the entry having been circled for 9:00 am. and 5:00 p.m. on October 21, 1974. However, the record further indicates along side the 9:00 a.m. entry on October 21, 1974, that the medication was given. Ms. Croft was asked to examine the nurse's notes and doctor's instructions but was unable to find any basis for the change in medication schedule. A review of Exhibit 2 indicates that the patient received all of the medications to be given at 9:00 a.m. and 5:00 p.m. on October 21, 1974. Exhibit 2 further indicates that the patient did refuse medications form other nurses on other occasions. According to the instructions on Exhibit 2, Mrs. Parrish did not properly complete the annotation of the patient's refusal to take the medication because, according to the testimony of Ms. Croft, no entry was made in nurse's notes stating the reason for not giving the medication. Mrs. Parrish, according to her testimony, had no clear recollection of the event and could not determine from an examination of Exhibit 2 if the initial and circle appearing on the exhibit were hers or whether the lanoxin was given the patient. Ms. Croft then identified the medication chart of Lena Sparks which was received into evidence as Exhibit 3. Ms. Croft testified that Exhibit 3 revealed that the patient Lena Sparks had received on the night of October 30, 1974, a dosage of tunial prior to bedtime. Exhibit 3 further reflects that the patient was to receive a dosage of tunial "HS PRN". According to these instructions, the patient should have received tunial at bedtime as needed or required. Exhibit 3 reflects that Mrs. Parrish administered a dosage to Ms. Sparks at 3:45 a.m. on the morning of October 31, 1974. The administration of the drug tunial to Ms. Sparks by Mrs. Parrish was contrary to the instructions regarding the administration of this drug to Ms. Sparks. Ms. Croft, having examined the records, could not find any doctor's authority to repeat the dosage at any time. Ms. Parrish testified that Ms. Sparks was a noisy and loud person and that on another occasion she had given her medication to quiet her upon the instructions of another nurse. She testified that based upon the prior incident that she had felt justified in administering tunial to Ms. Sparks and the patient awoke at 3:45 am. on October 31, 1974. Mrs. Parrish appeared to be evasive and belligerent and her testimony concerning events .were vague and she could recall very few actual facts surrounding the incidents in question. The one incident which she recalled regarding the radical change in the patient Roberts' condition did not occur on the date when, according to, the testimony of Ms. Croft, Mrs. Parrish was on duty and failed to properly administer Roberts' medication or chart the administration of his medication. According to Ms. Croft Bay Convalescent Center is a skilled nursing facility whose patients require trained nursing care. She also testified that oral changes in doctors' instructions require entry in nurses' notes and doctors' instructions followed up by a "change order" which must be forwarded to the doctor within twenty-four (24) hours, signed by the doctor, and returned for enclosure in the file. Mrs. Parrish has been an L.P.N. for twenty (20) years and prior to her employment by Bay Convalescent Center had been primarily a private duty nurse for the preceding ten (10) years. At the time of the incident alleged in the Complaint, Mrs. Parrish had been employed at Bay Convalescent Center for approximately three (3) weeks. Mrs. Parrish testified that she was unfamiliar with Bay Convalescent Center's medication charting procedure.
Recommendation Having made the aforestated findings of fact regarding the licensee, Emmaline Hutto Parrish, I find that her actions with regard to Ruby Goodman, Ellis Roberts, Anita Pritchard, and Lena Sparks to have been unprofessional and to have violated Section 464.211)(b), Florida Statutes, and I would recommend that the licensee's license be revoked. DONE and ORDERED this 15 day of October, 1975. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of October, 1975. COPIES FURNISHED: Julius Finegold, Esquire 1130 American Heritage Building Jacksonville, Florida 32202 William E. Harris, Esquire 406 Magnolia Avenue Panama City, Florida 32401 Ms. Helen Keefe, Executive Director Fla. State Board of Nursing 6501 Arlington Expressway Suite 201 Jacksonville, Florida
