The Issue The issue in this case is whether the wheelchair transport driver certifications of each of the Respondents should be revoked.
Findings Of Fact The Director is responsible for, inter alia, providing wheelchair transport driver certifications in Pinellas County. Gammage, Miller, and Stewart were each certified by the Director to be a wheelchair transport driver. Each of the Respondents worked for Wheelchair Transport Service, Inc. (the "Employer"). The process by which drivers obtain a certification from the Director is as follows: The Employer hires an individual to be a driver. It is the responsibility of the Employer to make sure each driver applicant has been fingerprinted. The Employer must also forward each driver's application to the Florida Department of Law Enforcement ("FDLE") for a criminal background check. When the background check is complete, the Employer must certify to the Director by way of an affidavit that the applicant for certification: has not been convicted of a felony; (2) has not been convicted of a misdemeanor directly related to his or her employment; and (3) has not pled nolo contendere to any charge of felony. The Employer must also affirm that it has attempted to contact the applicant's prior employers, that the applicant is of good moral character, and that the Employer has contacted three non-related individuals to attest to the applicant's morality. Once this process is complete, the Employer provides the Director with the driver's application along with an "Affidavit As To Background" for the driver. Upon receipt of this information, the Director would issue a certification to the applicant. The Director does not normally do an independent background check on the applicants. Rather, it relies upon the affidavit from the employing entity. In January 2006, the Director received a copy of an anonymous letter that had been sent to a local hospital which provided services to a large number of Veteran's Administration patients. The letter alleged improprieties by the Employer, specifically that it was hiring unqualified drivers. The qualifications of drivers are important to the Director because drivers are transporting the most vulnerable members of society, i.e., the sick, weak, infirm, and elderly. Based on the allegations in the anonymous letter, the Director undertook an independent investigation. Despite its limited financial resources, the Director performed a background check on all drivers for the Employer. The investigation found that seven drivers, including the three Respondents, had disqualifying criminal histories. For Gammage, the Employer had provided an affidavit to the Director stating that Gammage met all the criteria for certification and had no disqualifying criminal background. The affidavit was signed by Gammage and by a representative of the Employer. The affidavit was notarized, but it is unclear whose signature was being affirmed by the notary. Gammage, despite the representations in the affidavit, did have a disqualifying criminal history. He had two felonies, a burglary in 1994 and a sale of cocaine conviction in 1997. He served time in jail for at least one of the felonies. Nonetheless, the Director relied upon the affidavit from the Employer and issued Gammage a certification. After receiving his certification, Gammage worked for the Employer driving wheelchair transport vehicles for approximately seven years. He has been recertified every two years and has a clean employment record. The affidavit for Miller also affirmed that a background check had been done, that Miller had no felonies or other disqualifying criminal history, and that he was of good moral character. Miller's affidavit is not signed by the Employer, but "Wheelchair Transport Service, Inc." is stamped or typed on the signature line. The affidavit is notarized, presumably affirming Miller's signature since it is the only actual signature on the affidavit. Miller, too, actually had felonies in his background. He was found guilty of dealing in stolen property in 1994. Another felony charge, cruelty to a child, had been reduced to a misdemeanor, but it may also be a disqualifying event due to the nature of the crime. Miller's application and affidavit were provided to the Director, and a certification was duly issued. Stewart also applied for certification through the Employer. Stewart's affidavit affirmed his qualifications to be a wheelchair transport driver, i.e., the absence of a disqualifying criminal history and that he was of good moral character. The affidavit introduced into evidence was not signed or stamped by the Employer, nor was it notarized. According to Stewart, this was one of several affidavits he had done for his Employer. However, Stewart had a disqualifying criminal history as well. His record included battery on a police officer in 1991 and robbery with a deadly weapon in 1992. Despite this fact, the Director issued a certification for Stewart.1 All of the Respondents testified that they had told the Employer about their criminal backgrounds, but the Employer indicated to them that it didn't matter. All of the Respondents believed that the Employer was able to "take care of the problem" so that they could become certified. None of the three Respondents directly told the Director that they had no criminal history. In fact, under the certification process, it was solely the Employer's duty to advise the Director. It is clear the Employer--not the Respondents-- intentionally misled the Director concerning the criminal history of the three Respondents. Nonetheless, the Director continues to use the Employer to provide wheelchair transport services because "they have changed the way they do things." Apparently, the Employer now provides an FDLE background check along with the application and affidavit. Gammage, Miller, and Stewart have proven they are good employees. Each has a clean record with the Employer (Gammage for seven years or more), and each continues to work for the Employer outside Pinellas County. The medical director was kind in her praise of the three men, but firm in her stance that they were not eligible to have wheelchair transport driver certifications.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Pinellas County Emergency Medical Services, Office of the Medical Director, revoking the certifications of each Respondent. DONE AND ENTERED this 11th day of December, 2007, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of December, 2007.
The Issue As to case 89-3568BID, whether the bid protest filed by B & L Service, Inc., shall be upheld. As to case 89-3569BID, whether the bid protest filed by AAA Wheelchair Wagon Service, Inc., d/b/a County Transportation, shall be upheld.
Findings Of Fact On April 7, 1989, Respondent, Department of Health and Rehabilitative Services (DHRS), published and issued a Request for Proposals (RFP) which solicited proposals for the provision of twelve identified categories of transportation services to Medicaid recipients in DHRS District X. DHRS issued the RFP because it did not want to award the contract primarily on the basis of price. The purpose of the RFP was to solicit proposals which evidenced a demonstrated capability and reliability for providing cost-effective, courteous and prompt transportation services to transportation disadvantaged Medicaid recipients in District X to and from medical appointments and Community Mental Health services. The RFP identified twelve transportation categories which would be the subject of the contract to be awarded. The categories were designated by the letters a-1. Petitioner, B & L Service, Inc. (B & L Service), and Petitioner, AAA Wheelchair Wagon Service, Inc., d/b/a County Transportation (AAA Wheelchair) submitted proposals that were accepted and evaluated by DHRS. Petitioner, B & L Service timely protested the award to AAA Wheelchair of the categories of service identified in the RFP as category f. and category This protest forms the basis for Case 89-3568BID. Petitioner, AAA Wheelchair timely protested the award to B & L Service of several categories of service for which both AAA Wheelchair and B & L Service had submitted proposals. This protest forms the basis for Case 89-3569BID. An evaluation committee consisting of four DHRS employees and one employee of the Florida Department of Transportation was appointed to evaluate the different proposals. The RFP advised all parties that the evaluation committee's recommendations would be reviewed by the District Administrator who would make the final determination. The evaluation committee analyzed each proposal using the rating sheet that was included as a part of the RFP. The following categories and point values were used to analyze each proposal: Response to Statement of Purpose/Need Project Understanding - 10 points Method of Service Provision - 20 points Demonstrated Organizational Capability - 10 points Rate Analysis - 10 points Categories f. and g. are as follows: Demand-responsive wheelchair transpor- tation requested at least 24 hours prior to the provision of service: approximately 800-1000 trips per month Demand-responsive wheelchair transpor- tation requested less than 24 hours prior to the provision of service: approximately 15-30 trips per month The evaluation committee reasonably determined that it should recommend one provider for categories f. and g. to avoid unnecessary confusion for the recipients of the respective services. Category f., which would involve between 800-1000 trips per month, was a more significant category than category g., which would involve 15-30 trips per month, in terms of number of persons served and the amount of money involved. It was reasonable for the winner of category F. to be awarded category g. The evaluation committee awarded B & L Service the following points for category f.: Category I: 45 Category II: 85 Category III: 27 Subtotal: 158 Category IV. 46 Grand Total 204 The evaluation committee awarded AAA Wheelchair the following points for category f.: Category I: 41 Category II: 89 Category III: 36 Subtotal: 166 Category IV: 38 Grand Total 204 The evaluation committee awarded B & L Service the following points for category g.: Category I: 45 Category II: 86 Category III: 27 Subtotal: 158 Category IV: 46 Grand Total 204 The evaluation committee awarded AAA Wheelchair the following points for category g.: Category I: 41 Category II: 89 Category III: 36 Subtotal: 166 Category IV: 32 Grand Total 198 B & L Service and AAA Wheelchair received the same number of total points for category f. The evaluation committee voted to break the tie for category f. between B & L Service and AAA Wheelchair. By a vote of 4 to 1, the evaluation committee voted to recommend that B & L Service be awarded the contract for category f. and, consequently, for category g. There was no justification or explanation given by the committee for its vote. The procedures under which the committee was operating did not provide for a vote in the event of a tie. B & L Service proposed to perform the services required for categories f. and g. for $14.70 per trip while AAA Wheelchair proposed to provide the services for category f. for $15.00 per trip and the services for category g. for $16.00 per trip. The lower price proposed by B & L Service enabled it to score higher than AAA Wheelchair in category g. and to tie AAA Wheelchair in category f. AAA Wheelchair scored higher than B & L Service in categories I-III of categories f. and g., the areas designed to evaluate the provider's ability to deliver quality service. Paul V. Freedlund, the District Administrator for DHRS District X delegated to Carmen Gutierrez, the Acting Deputy District Administrator for DHRS District X, the responsibility to review the RFP process to ensure its validity. Ms. Gutierrez was instructed by Mr. Freedlund to recommend the providers she considered most capable of performing the contracts for the respective categories of service based on the information that was available to her. Ms. Gutierrez delegated to Nancy Porter, the Medicaid Program Administrator for DHRS District X, the responsibility to review the RFP process and to make a recommendation as to which provider should receive the award for categories f. and g. Ms. Porter was also told to justify her recommendation. B & L Services had been the provider of the services required by categories f. and g. during the 1988-1989 DHRS fiscal year. AAA Wheelchair had been the provider of the services required by categories f. and g. for several years immediately preceding the 1988-1989, DHRS fiscal year. During their respective periods of performance, DHRS monitored their performances and maintained monitoring reports which reflected any deficiencies in the performances. Mr. Freedlund told both Ms. Gutierriez and Ms. Porter that because of the close scores any monitoring reports for the competing providers should be reviewed and to go with the provider they felt was better able to render the service effectively. Nancy Porter, pursuant to the instructions she had received, reviewed the proposals submitted by B & L Service and by AAA Wheelchair, reviewed the evaluation committee's work, and reviewed the monitoring reports of B & L Service for the period it performed the subject services and the monitoring reports of AAA Wheelchair for the period it performed the subject services. Nancy Porter recommended that AAA Wheelchair be awarded the contract for the category f. and the category g. services. In her memo to Paul Freedlund dated June 2, 1989, she justified her recommendation to award the category f. and category g. services, together with other categories of service that are not being contested, as follows: Based upon monitoring reports, past performance under prior contracts and response to the RFP, this provider appears to have the ability to provide the quality of services required in the bid specifications, thereby making them the most advantageous to the state and the lowest qualified bidder. Nancy Porter's recommendation to Paul Freedlund was that B & L Service be awarded five of the twelve categories of service and that AAA Wheelchair be awarded the other seven categories of service. Paul Freedlund accepted Nancy Porter's recommendation. These protests followed the announcement of the intended awards. B & L Service's protest is based, in part, on contact between Nancy Caputo, president of AAA Wheelchair, and DHRS after the evaluation committee had met, but before the intended final decision was made. B & L Service's protest is also based on DHRS not following the recommendations of its committee as to categories f. and g. On May 17, 1989, Vera Sharitt, the DHRS contract manager for Medicaid transportation, wrote Nancy Porter advising her of the evaluation committee's results and recommendations. On May 18, 1989, Nancy Porter prepared a memo to Paul Freedlund which erroneously stated that B & L Services had received the highest points from the evaluation committee for category f. as well as category g. On May 19, 1989, Karen Caputo received a copy of Nancy Porter's memo dated May 18, 1989. Karen Caputo telephoned Nancy Porter, advised that an error had been made in the memo of May 18, 1989, and proceeded to tell Nancy Porter that her company could provide much better services than could B & L Service. Karen Caputo was upset when she called Nancy Porter. Nancy Porter listened and agreed to correct the error in her memo to reflect that there had been a tie in points for category f. instead of B & L Service being the point winner. On May 23, 1989, Nancy Porter prepared a second memo to Paul Freedlund which corrected the error in her memo of May 18, 1989. On May 23, 1989, Karen Caputo wrote Paul Freedlund a letter which discussed the merits of her proposal and the higher quality of service that had been provided by her company as compared to B & L Service. Her letter also asserted that B & L Service had the financial ability to offer lower prices than her company and also asserted that her company was a minority owned business. The contact Karen Caputo had with the DHRS employees occurred before Mr. Freedlund instructed Ms. Gutierrez and Ms. Porter to review the RFP process and to make a recommendation since the scores awarded by the evaluation committee were so close. Karen Caputo's contact resulted in the correction of the error in the memo of May 18, 1989. The contact Karen Caputo had with the DHRS employees did not, however, unduly influence their recommendations and did not constitute an unfair interference with the contract award process. The protest of AAA Wheelchair is based on its assertion that B & L Service was not a qualified proposer and that its response to the RFP was deficient. B & L Service's performance of the f. and g. categories of service for the fiscal year 1988-1989 did not disqualify it as a proposer. While a number of deficiencies were noted in the monitoring reports for this period of time, DHRS had taken no steps to disqualify B & L Services as a proposer. B & L Service was a qualified proposer. The response to the RFP submitted by B & L Service was not deficient.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Department of Health and Rehabilitative Services enter in case 89-3568BID a Final Order which denies the bid protest of Petitioner, B & L Service, Inc. IT IS FURTHER RECOMMENDED that the Department of Health and Rehabilitative Services enter in case 89-3569BID a Final Order which denies the bid protest of Petitioner, AAA Wheelchair Wagon Service, Inc., d/b/a County Transportation. DONE AND ENTERED this 8th day of September, 1989, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of September, 1989. Appendix to the Recommended Order in Consolidated Cases 89-3568BID and 89-3569BID PETITIONER'S PROPOSED FINDINGS: The proposed findings of fact, submitted on behalf of B & L Service, Inc., are addressed as follows: The proposed findings of the first paragraph are addressed in paragraphs 1 and 4. The proposed findings of the second paragraph are rejected as being unnecessary to the results reached. The proposed findings of the third paragraph are addressed, in part, in paragraphs 1 and 2 and are rejected in part as being unnecessary to the results reached. 4 -5. The proposed findings of the forth and fifth paragraphs are rejected as being unnecessary to the results reached. The proposed findings of the sixth paragraph are subordinate to the findings of paragraph 5. The proposed findings of the seventh paragraph are addressed in paragraph 8. The proposed findings of the eighth paragraph are addressed in paragraph 9, 10, 12, 13, and 16. The proposed findings of the ninth paragraph are addressed in paragraph 11 and 16. The proposed findings of the tenth paragraph are addressed in paragraph 24. The proposed findings of the eleventh paragraph are addressed in part in paragraph 25 and are rejected in part as being contrary to the weight of the evidence. The proposed findings of the twelfth paragraph are addressed in part in paragraph 25 and are rejected in part as being unnecessary to the results reached The proposed findings of the thirteenth paragraph are addressed in paragraph 25. The proposed findings of the fourteenth paragraph are addressed in part in paragraph 18 and are rejected in part as being recitation of testimony or as being subordinate to the findings made and the conclusions reached. The proposed findings of the fifteenth paragraph are addressed in part in paragraph 25 and are rejected in part as being recitation of testimony or as being subordinate to the findings made and the conclusions reached. The proposed findings of the sixteenth paragraph are rejected as being contrary to the weight of the evidence and as being recitation of testimony. The proposed findings of the seventeenth paragraph are addressed in part in paragraph 21 and are rejected in part as being unnecessary to the results reached. The proposed findings of the eighteenth paragraph are rejected as being in conflict with the findings of paragraph 27. The proposed findings of the nineteenth paragraph are addressed in part in paragraph 18 and are rejected in part as being contrary to the evidence. The proposed findings of the twentieth paragraph are addressed in paragraph 19. The proposed findings of the twenty-first paragraph are addressed in part in paragraphs 21 and 22 and are rejected in part as being unnecessary to the result reached and as being contrary to the evidence. The proposed findings of the twenty-second paragraph are rejected as being contrary to the findings of paragraphs 22 and 27. The proposed findings of the twenty-third paragraph are rejected. The monitoring reports, taken as a whole, support the recommendations of Nancy Porter. The selective comparison of statistical information is unnecessary to the conclusions reached. The proposed findings of fact, submitted on behalf of AAA Wheelchair Wagon Service, Inc., d/b/a County Transportation, are addressed as follows: 1-2. Addressed in paragraph 1. Addressed in paragraph 8. Addressed, in part, in paragraph 3 and are rejected in part as being unnecessary to the results reached. 5-8. Rejected as being unnecessary to the results reached. Rejected as being contrary to the evidence. Addressed in paragraph 9. Addressed in paragraph 8. Addressed in paragraph 9. Rejected as being argument instead of a finding of fact. Rejected as being unnecessary to the results reached and as being argument. 15-20 and are rejected as being unnecessary to the results reached and as being argument. 21-24 and are rejected as being unsupported by the evidence and as being argument. 25-26 and are rejected as being unnecessary to the results reached. 27-28 and are rejected as being unsupported by the evidence and as being argument. 29. Rejected as being contrary to the evidence and as being argument. RESPONDENT'S PROPOSED FINDINGS: The proposed findings of fact, submitted on behalf of the Department of Health and Rehabilitative Services are addressed as follows Addressed in paragraphs 1, 2, and 3. Addressed in paragraphs 4 and 10. Addressed in paragraph 8. Addressed in part in paragraph 8. Rejected in part as being unnecessary to the results reached. Addressed in paragraph 9. 6-7. Addressed in paragraphs 12, 13, 14, 15, and 16. Addressed in paragraph 11. Addressed in paragraph 16. Addressed in part in paragraphs 12, 13, 14, 15, and 17. Rejected in part as being subordinate to the findings made. 11-12. Rejected as being subordinate to the findings made. Addressed in part in paragraphs 18 and 19. Rejected in part as being unnecessary to the results reached. Addressed in paragraphs 21 and 22. Addressed in paragraph 27. 16-18 Rejected as being conclusions of law. COPIES FURNISHED: Colleen A. Donahue, Esquire Department of Health and Rehabilitative Services 201 West Broward Boulevard Suite 406 Fort Lauderdale, Florida 33301 John M. Camillo, Esquire VERNIS & BOWLING, P. A. 301 Southeast 10th Court Fort Lauderdale, Florida 33316 Karen Caputo, President AAA Wheelchair Wagon Service Post Office Box 2281 5890 Rodman Street Hollywood, Florida 33023 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether, at the time Petitioner made application for financial subsidy for wheelchair transportation, the denial by the Department, as a conclusion of law, for a lack of general revenue funds, was appropriate.
Findings Of Fact Based upon the testimony of the witness and consideration of the pleadings filed in this cause, the following relevant and material facts are found. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes. Matthew Dying, a developmentally disabled person who lives in his family home, applied for and received services funded by the Department of Children and Family Services which were paid, in part or in full, from the Department's General Revenue Funds. Petitioner, by and through Kearn Pienta, made application to the Department for Wheelchair Transport Services. At no time was Petitioner advised to specify a particular Department funding source to pay for the requested services. The Department denied Petitioner's request for Wheelchair Transport Services subsidy. The Department's denial was based on the position that the requested services were not authorized to be paid from the Department's General Revenue Funds. The Department, after discussion with Karen Pienta, agreed to provide the requested Wheelchair Transport Services paid from Medicaid Waiver funding source of which Matthew Dying is a client and a recipient. The Department is required to transfer a percentage of its General Revenue funds into the Medicaid Waiver funding for payment services. Petitioner, at the time of this final hearing, was receiving Wheelchair Transport Services. Having secured the services requested and thereafter refusing to attend this hearing is evidence of Petitioner's intent to withdraw the Administrative Complaint herein filed. Therefore, Petitioner's challenge to Respondent's initial denial of the original request need not be addressed to dispose of this matter.
The Issue Whether the Department of Children and Family Services (Department) improperly denied funds to Felicita Cruz for the purchase of a specialized wheelchair.
Findings Of Fact Based on the oral and documentary evidence adduced at hearing, the following relevant findings of fact are made: The Department is the agency in the State of Florida charged with the responsibility of administering the Developmental Services Program, pursuant to Chapter 393, Florida Statutes. Petitioner, Felicita Cruz, is a twenty-six-year-old woman who is developmentally disabled. Petitioner has Rett Syndrome, a neurological disorder, and, as a result thereof, she is mentally retarded, has scoliosis and is unable to walk and talk. Due to Petitioner's lack of mobility, she must be regularly repositioned by someone. About fourteen years ago, Petitioner had surgery to alleviate some of the physical problems associated with her scoliosis. At or near the time of the surgery, a rod was placed in Petitioner's spine. Currently, Petitioner does not have a wheelchair, but she does have a stroller. Petitioner's stroller is several years old, does not meet her needs, and is no longer appropriate. There is no dispute that Petitioner needs a specialized fitted wheelchair. Petitioner's Waiver Support Coordinator/Case Manager for about four years stated the following in a letter dated September 3, 2002: Around February of 2002, I was asked for the case file to be handed back in to Developmental Services. Even though, [sic] I currently have no professional responsibility for this case, I am asserting my opinion that Ms. Cruz has need of a specialized, fitted wheelchair, conducive to her progressive spinal deformation. Also, due to her lack of initiative and inability to ambulate without intensive support, a wheelchair is primary for her mobility concerns. Without appropriate fitted physical support, her spinal condition can worsen, and cause more severity and progression with her disability. A letter dated September 3, 2002, from the occupational therapist who works with Petitioner at Tandem Healthcare of Kissimmee, the nursing home where Petitioner resides, also indicates that Petitioner needs a specialized wheelchair. The letter states in relevant part the following: [B]ecause of her disability, Felicita Cruz requires a specialized wheelchair. Presently she is in a stroller. This is inappropriate for the following reasons: It is the same stroller she has had for many years. Her needs have changed and should be addressed. She has sclerosis [sic] and requires a wheelchair which will be more supportive of her back. She slides out of the stroller, and this presents a safety risk. Ms. Cruz requires a specialized wheelchair which will improve both her physical well being, and increase safety in her current environment. Petitioner became a consumer of the Developmental Services Program in 1999 and was deemed eligible for the Department's Developmental Services Home and Community-Based Waiver Program ("Home and Community-Based Waiver Program"). Subsequently, in 2000 or early 2001, Nilda Cruz requested a specialized wheelchair for Petitioner. When this request was made, Petitioner was living at home with her mother, who was her primary caregiver. Apparently, in response to Nilda Cruz's request and upon the Department's determination that Petitioner needed a specialized wheelchair, Petitioner's Department-assigned case worker took steps to assist Petitioner with obtaining a specialized wheelchair. In February 2001, Petitioner was being fitted for a specialized wheelchair, through the Home and Community-Based Waiver Program. However, during this time and prior to the Department's purchasing the specialized wheelchair for Petitioner, her health declined and she was hospitalized from late March 2001 until April 4, 2001. After being released from the hospital, upon the advice of Petitioner's physician, on or about April 5, 2001, Petitioner was placed in a nursing home. Prior to Petitioner's being placed in a nursing home, she remained eligible for the Home and Community-Based Waiver Program. Based on that eligibility, the specialized wheelchair could have been funded by the Home and Community-Based Waiver Program. However, after Petitioner moved to a nursing home, she was ineligible for the Home and Community-Based Waiver Program and any services or equipment funded by that program. Although Petitioner is no longer eligible for the Home and Community-Based Waiver Program, she continues to be a client of Developmental Services and is eligible for services and equipment authorized under that program. There are no funds available in the general revenue category of the Developmental Services' budget and none have been allocated. Due to the lack of funds, the Department was unable to purchase the specialized wheelchair that Petitioner needs and, accordingly, it denied Petitioner's request for the wheelchair. In an effort to assist Petitioner, Department employees and Nilda Cruz met with the administrator of Tandem Healthcare, the nursing home at which Petitioner resides, to request that the nursing home purchase the specialized wheelchair for Petitioner. The administrator agreed to purchase a regular wheelchair at a cost of between $400.00 to $700.00, but not the specialized wheelchair that would cost an estimated $2,000.00.
Recommendation Based upon the findings of fact and conclusions of law, it is RECOMMENDED that the Department enter a final order that denies Petitioner's request for the specialized wheelchair, unless and until general revenue funds or other appropriately designated funds are available for such purpose. DONE AND ENTERED this 20th day of November, 2002, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 20th day of November, 2002. COPIES FURNISHED: Felicita Cruz c/o Nilda Cruz 2605 Quail Pond Way Kissimmee, Florida 34743 Beryl Thompson-McClary, Esquire Department of Children and Family Services 400 West Robinson Street, Suite S-1106 Orlando, Florida 32801 Paul F. Flounlacker, Jr., Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
The Issue The basic issue in this case is whether the Respondent engaged in an unlawful employment practice within the meaning of Section 760.10, Florida Statutes, by not hiring the Petitioner.
Findings Of Fact The Respondent's Policies 3.10 and 3.11 set forth conditions of employment and requirements for pre-employment medical examinations which must be complied with by "all applicants who are recommended for employment" by the Respondent School Board. The Petitioner was initially employed by the Palm Beach County School Board as a probationary bus driver effective November 3, 1981. On August 18, 1986, the Petitioner submitted his resignation from that position effective June 11, 1986. On September 16, 1988, the Petitioner submitted a new application for employment with the Respondent in the position of school bus driver. Pursuant to School Board policy, the Petitioner was referred to the Occupational Health Clinic for his pre-employment physical examination. The Respondent's application process, which is governed by School Board Policies 3.10 and 3.11, requires that all applicants for employment sign a form which informs the applicants of the employment practice. The information sheet, which the Petitioner executed, has a section wherein the applicants acknowledge that they "must successfully pass health screening administered by the District's Occupational Health Clinic" to be considered for employment. The Manager of the Respondent's Occupational Health Clinic is Ms. Linda Cherryholmes-Perkins. She has held that position since January of 1987. Ms. Cherryholmes-Perkins has a Bachelor's Degree in Nursing, a Master's Degree in Nursing, and is licensed as an Advanced Registered Nurse Practitioner. As Manager of the Occupational Health Clinic, Ms. Cherryholmes-Perkins oversees the pre-employment process, which all applicants for full-time employment must satisfy. During the Petitioner's pre-employment physical examination, he was tested to insure that he met both the Florida Department of Education Standards and the Respondent's Bus Driver Standards. The Respondent's Bus Driver Standards have been approved by the Department of Education, Division of Public Schools, School Transportation Management Section. An applicant who fails to meet both the Florida Departinent of Education Standards and the Respondent's Bus Driver Standards is ineligible to drive a school bus for the Respondent. The Petitioner knew he had to satisfactorily complete the pre- employment process to be eligible for employment. When the Petitioner was examined in connection with his 1988 application for employment, he was found to be suffering from uncontrolled diabetes, uncontrolled hypertension, and gross or morbid obesity. Because the Petitioner had not been previously diagnosed as having diabetes, he was assigned to and was allowed to perform twenty-one hours of probationary services before the Respondent discovered that the Petitioner was not qualified to be a school bus driver. When it was discovered that the Petitioner did not meet the school bus driver requirements, he was placed in a "medical hold" status by the Occupational Health Clinic. The "medical hold" status was for thirty days. During the "medical hold" period the Petitioner was given an opportunity to demonstrate compliance with the State of Florida Standards and with the Respondent's Bus Driver Standards. The Respondent accommodated the Petitioner in this regard by providing him with free follow-up testing during the "medical hold" period. At the end of the "medical hold" period, the Petitioner still failed to meet the State and School Board employment standards. During that period the Petitioner also failed to follow his physician's medical prescription. At the conclusion of the "medical hold" period the Petitioner was given a medical denial for the position of school bus driver. The primary reason for the medical denial was the Petitioner's diabetes, which was still uncontrolled. Secondary reasons were the additional health complications resulting from the Petitioner's hypertension and obesity. As a result of the uncontrolled diabetes alone, it was unsafe for the Petitioner to drive a school bus, because patients with that condition are at risk of having cognitive problems. The Petitioner's other problems made it even more unsafe for him to drive a school bus because patients with uncontrolled hypertension are at greater risk of stroke, heart attack, and similar cardiovascular incidents, and the Petitioner's obesity caused him to have a limited range of motion in his spine.
Recommendation For all of the foregoing reasons, it is recommended that a Final Order be issued in this case dismissing the Petition For Relief and denying all relief sought by the Petitioner. DONE AND ENTERED at Tallahassee, Leon, County, Florida, this 26th day of July, 1991. MICHAEL M. PARRISH, 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 Divsion of Administrative Hearings this 26th day of July, 1991. COPIES FURNISHED: Michael L. Cohen, Esquire Barristers Building 1615 Forum Place, Suite 1-B West Palm Beach, FL 33401 Hazel L. Lucas, Esquire School Board of Palm Beach County 3970 RCA Boulevard, Suite 7010 Palm Beach Gardens, FL 33410 Mr. Ronald M. McElrath, Executive Director Florida Commission of Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird, Esquire General Counsel Florida Commission of Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Ms. Margaret Jones, Clerk Florida Commission of Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925
Findings Of Fact Petitioner began employment with Respondent as a school bus driver in December, 1975. School bus drivers are part of the bargaining unit with the International Brotherhood of Firemen and Oilers, and at all times material hereto, the collective bargaining agreement between this union and the Respondent provided that employees who had not returned to work for one year following an on the job injury could be terminated without prejudice. During 1981, Petitioner was injured on the job when he twisted his back falling off a school bus, and thereafter he was determined to be disabled, and received worker's compensation benefits. Because he felt he would never be able to return to his job as a school bus driver due to his injury, Petitioner settled his claim against Respondent resulting from his 1981 injury for a lump sum payment of $15,000. In 1983, Petitioner was released by his treating physician, and applied for reinstatement with Respondent. When Respondent did not initially reinstate him, Petitioner filed a handicap discrimination complaint with the Florida Commission on Human Relations. Ultimately, Respondent did rehire Petitioner during 1983 as a school bus driver, but his salary was set at the beginning level without credit for his prior experience. Petitioner continued to work as a school bus driver after he was rehired in 1983, receiving excellent performance evaluations, until April, 1985, when the bus he was driving was hit by a truck that ran a red light. In attempting to get the bus under control after it was hit, Petitioner twisted and reinjured his back. He was not at fault in this accident. Thereafter, Petitioner was again determined to be disabled, and received worker's compensation benefits. One month after his second accident, Petitioner was released by his treating physician, Dr. Patrick J. Logue, and was allowed to return to work with Respondent in May, 1985. However, after attempting to drive a school bus, and perform the other duties of a driver, Petitioner decided he could not continue working. He determined he was not physically able to do his job. Thereupon, he was referred by worker's compensation to two additional physicians, Drs. Charles D. Nach and H. G. Siek, orthopedic surgeons licensed to practice in this State. Dr. Nach prepared a medical absence report after examining Petitioner on July 5, 1985, and concluded that Petitioner would be able to return to work on that date, July 5, 1985. Petitioner did not return to work, however, and began seeing Dr. Siek in August, 1985, as well as Dr. J. Baird, a physician at the Martha Stetson Health Center, on referral by the Respondent. Respondent's Rule 6Gx52-7.05, Florida Administrative Code, authorizes the examination of injured employees at this Health Center. Dr. Baird filed a report dated October 22, 1985, indicating Petitioner could return to work, but could not lift, bend, stoop, squat, pull or push. Dr. Siek concluded that Petitioner could return to work on November 5, 1985, but with no heavy lifting. On November 14, 1985, Respondent's Assistant Transportation Director, Walter Allison, prepared a detailed description of duties a school bus driver must perform, and requested that Petitioner allow his treating physician to review this description, and provide written verification of the fact that he could, in fact, perform these duties. The parties took, and introduced in evidence, the deposition of Dr. Siek wherein Dr. Siek testified that he had reviewed Allison's letter with Petitioner on November 18, 1985, and determined that he "didn't find that these prerequisites are too strenuous if he (Petitioner) felt they were within his capabilities." There is no evidence in the record, however, that Dr. Siek's conclusion on November 18 was ever conveyed to Walter Allison or any other representative of Respondent. In late November, 1985, Petition was referred to a "work hardening" program administered by Physical Capacities, Inc. This program is used by Respondent and other employers to prepare employees who have been off the job for some time for the physical demands of their jobs, and to avoid aggravating their conditions while increasing mobility and strength. It consists of a physical assessment, training and work simulation exercises. However, after only two days in the work hardening program, Petitioner quit the program, and refused to return. He felt the exercises were aggravating his condition. Thereafter, Petitioner resumed seeing Dr. Siek, and in April, 1986, Dr. Siek concluded that Petitioner could return to work, with light duty. However, Petitioner never insured that Dr. Siek provide Respondent with a response to Walter Allison's letter of November 14, 1985, which had clearly stated that once written verifications were received from Dr. Siek and Dr. Baird that Petitioner could perform the duties of a school bus driver, he would be permitted to return to work. Petitioner completed and filed Statements of Continuing Disability from January through June, 1986, on which he indicated he was unable to return to work due to his back and hip condition. In August, 1986, Petitioner began employment with the Upper Pinellas Association for Retarded Citizens (UPARC) as a bus driver, and has been continuously employed with UPARC to the present. On December 5, 1986, Petitioner and Respondent executed a Stipulation and Joint Petition for Lump Sum Payment of his worker's compensation claim arising from the April, 1985 accident. Under the terms of this agreement, Respondent released a lien which it had against Petitioner's recovery against the driver of the truck which hit the school bus. The lien was in the amount of $21,845.71, resulting from worker's compensation benefits paid by Respondent to Petitioner, which Respondent could have collected against the $40,000 recovery Petitioner received from the tortfeasor. The parties also stipulated that maximum medical improvement was reached on April 14, 1986. The Stipulation and Agreement was approved by the Deputy Commissioner for worker's compensation. On January 16, 1987, Petitioner filed a complaint of discrimination against Respondent alleging that since April, 1986, he had been denied reemployment by the Respondent due to retaliation for his filing of an earlier complaint of handicap discrimination in 1983. After investigation, the Executive Director of the Commission made a determination of "no cause" concerning Petitioner's complaint, and Petitioner timely filed a Petition for Relief, resulting in this hearing.
Recommendation Based upon the foregoing, it is recommended that Petitioner's charge of discrimination against Respondent be DISMISSED. DONE AND ENTERED this 29th day of March 1989, in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of March, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-5285 The Petitioner did not file a Proposed Recommended Order with Proposed Findings of Fact. Rulings on the Respondent's Proposed Findings of Fact: 1. Adopted in Finding of Fact 1. 2-3. Adopted in Finding of Fact 2. 4-5. Rejected as unnecessary. 6-7. Adopted in Finding of Fact 3. 8-9. Adopted in Finding of Fact 4. 10-12. Adopted in Finding of Fact 5. 13. Adopted in Finding of Fact 6. 14-15. Rejected in Finding of Fact 5. Rejected as unnecessary. Adopted in Finding of Fact 6. 18-20. Rejected as unnecessary and irrelevant. 21. Rejected as simply a summation of testimony. 22-24. Adopted in Finding of Fact 5. 25. Rejected as unnecessary and irrelevant. 26-27. Adopted in Finding of Fact 6. Rejected as unnecessary and irrelevant. Adopted in Finding of Fact 6. 30-31. Adopted in Finding of Fact 7. Adopted and Rejected in part in Finding of Fact 8. Rejected as unnecessary. 34-35. Adopted in Finding of Fact 8. Rejected as irrelevant and not based on competent substantial evidence. Adopted in Finding of Fact 8. 38-49. Rejected as irrelevant, unnecessary and not based on competent substantial evidence. Adopted and Rejected in part in Finding of Fact 12. Adopted in Finding of Fact 13. Adopted in Finding of Fact 6, but otherwise rejected as a conclusion of law. Adopted in Finding of Fact 1. Adopted and Rejected in part in Findings of Fact 10, 11. Rejected as unnecessary. Rejected as not based on competent substantial evidence. COPIES FURNISHED: Gary Moore, Esquire Gulf Coast Legal Services, Inc. 6 South Ft. Harrison Avenue Second Floor Clearwater, Florida 34616 Bruce P. Taylor, Esquire Post Office Box 4688 Clearwater, Florida 34618 Scott N. Rose, Ed.D. Superintendent Post Office Box 4688 Clearwater, Florida 34618 Margaret Agerton, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Donald A. Griffin Executive Director Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925
Findings Of Fact On an application received by the Respondent on September 5, 1979, the Petitioner, Community Medical Transporters, Inc. (CMT), applied for a temporary non-emergency medical transportation license. CMT indicated that it proposed covering the Broward County area and had three vehicles available. The application was denied on September 21, 1979, by Respondent for the reasons already set out above. CMT was recently incorporated in September, 1979, and has not operated a non-emergency medical transportation service in Broward County or any place else. While at present and at the time of the denial there are no medical transportation services in Broward County providing exclusively non-emergency service, there are at least four HRS licensed ambulance services which provide both emergency and non-emergency service in the area. In addition, there are several transportation services licensed by the Public Service Commission under Chapter 323, Florida Statutes, providing non-emergency service in Broward County. CMT does not hold a certificate of public convenience and necessity from the Broward County Commission. Respondent has no rules which define what statutes the public interest, safety, or convenience and the Department's witness was unable to define what the terms meant except to say that they meant holding a certificate of public convenience and necessity from the appropriate county commission.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the application of Community Medical Transporters, Inc., for a non- emergency medical transportation services license be DENIED BUT WITHOUT PREJUDICE to an application for a permanent license. DONE and ENTERED this 28th day of December, 1979, in Tallahassee, Florida. MICHAEL P. DODSON Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: S. Steven Craycraft Community Medical Transporters, Inc. 5270 N.W. 15th Street Margate, Florida 33063 Harold Braynon, Esquire District X Counsel Department of HRS 201 West Broward Boulevard Fort Lauderdale, Florida 33301 =================================================================
The Issue The issue is whether Petitioner was reemployed as a substitute or hourly teacher on a noncontractual basis after he was retired for one month.
Findings Of Fact Petitioner was employed by the Board for several years as a driver's education teacher prior to his retirement. This position is a certificated teaching position under the rules of the State Department of Education. The operation of school buses in Duval County was and is done primarily by private companies, who are independent contractors and who, in turn, hire the bus drivers. Several years ago, the State of Florida required by law that all school bus drivers be certified as school bus drivers at the time of their initial employment. The Superintendent of Schools of Duval County instituted a program to certify its school bus drivers using Board personnel. Certificated driver's education teachers were asked to become qualified with the State to evaluate and test school bus drivers to insure that the drivers were in compliance with State law. Rule 6A-3.0141, et seq., Florida Administrative Code. All of the bus driver evaluators were driver's education instructors. Petitioner was one of the driver's education teachers who qualified and was employed to evaluate and test school bus drivers. The job of the Petitioner and other evaluators was to educate and test the drivers about the bus safety rules, to include "check" rides with drivers before certifying them. The school bus driver certification program is operated by the Board on a full-time basis, 5 days a week, 8 hours a day. There is a written job description for the position of driver's education teacher which was not changed or amended to reflect the additional duties of bus driver evaluation. Prior to retiring, Petitioner worked as a driver's education teacher on a full-time basis (7 hours, 20 minutes per day) and performed the duties as evaluator and tester of the drivers after school and on Saturdays. He was paid a salary for his teaching duties and an additional amount for his services as bus driver evaluator. Although Petitioner received one compensation check, the payroll stub indicated regular and overtime pay. His additional compensation was calculated on the basis of hours actually worked and from the salary schedule for part-time teachers. Funding for regular work and overtime was charged to the same cost account, "1850", and all his pay was based upon his duties as a certified teacher in pay classification "0610." The payroll code for a driver's education teacher is "0610". The Board did not have a pay code for a bus driver evaluator. Evaluating bus drivers is an additional duty performed by driver's education teachers. Pay classification code "0610" is applicable to all driver's education teachers; and the Petitioner, as well as all of the driver's education teachers, was compensated from the instructional salary account of the Board. Although all bus driver evaluators were driver's education teachers, not all driver's education teachers were bus driver evaluators. Additional duty as a bus driver evaluator was voluntary, and driver's education teachers were paid additional compensation for performing these duties. Their entire pay, including the additional compensation, was charged to Responsibility Center No. 1850 - Driver's Education. Cost center code "1850" is a cost code associated with academic programs. Petitioner was rehired as a teacher after retirement and placed in pay category "0610". This was done because the only persons performing bus driver evaluations in Duval County are driver's education teachers, and no other classification or pay code is applicable. Petitioner was placed in salary code "0610", driver's education teacher. Messrs. Richard and Boney were Petitioner's supervisors and they did the administrative portion of certifying the drivers. Richard and Boney are "administrators" with the Board and not certificated or instructional personnel. A person is classified as a teacher on the basis of (a) the union collective bargaining agreement and (b) the rules of the Public Employees' Relation Commission. It is up to the supervisor to assign the person's duties. Those duties would determine the salary code from which the person would be paid. Petitioner retired under the FRS, effective July 1, 1989, and was placed on the FRS payroll on that date. In July of 1989, he completed a Board form by which he made himself available for reemployment. Petitioner was rehired in August as a driver's education teacher, pay classification "0610", cost center "1850". His supervisor assigned him duties as a bus driver evaluator and tester beginning on August 21, 1990. Petitioner worked part of the months of August, September and October of 1989 and was paid at the rate of $15.85 per hour, the same rate and from the same account as other hourly teachers, "1850". (Exhibit No. 6). While so employed, he could have taught the classroom phase of the evaluation program or could have been assigned to teach driver's education; however, Petitioner only did the road test and evaluation of bus drivers. Petitioner had the same duties relative to the bus drivers' evaluations and testing both before and after retirement. After retirement, the Petitioner had the same pay code and cost center he had had before his retirement. Although his assigned duties after retirement did not include driver's education, Petitioner did some of the same work that he had done before his retirement and was subject to being assigned student teaching duties. Inadvertently, the Board deducted retirement contributions from Petitioner's pay and reported the contributions to the Division of Retirement. (Exhibit No. 5). This precipitated an audit of the account; and the Division of Retirement concluded, based upon the data, that Petitioner was not employed as a teacher by the local school district.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that Division of Retirement take no action to collect the benefits paid to the retiree during the period of his reemployment by the Duval County School Board between August, September, and October 1989. DONE AND ENTERED this 28 day of September, 1990, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 28 day of September, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-2424 The Petitioner did not submit proposed findings of fact. Respondent's Proposed Findings of Fact 1-8. Adopted. First portion adopted; last two sentences rejected as irrelevant. Adopted. First portion adopted; last sentence rejected as irrelevant. Adopted. Adopted, except first sentence, which was rejected as irrelevant. Rejected as irrelevant. Adopted, except last two sentences, which were rejected as statement of issues. Adopted. COPIES FURNISHED: Aletta Shutes, Secretary Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 Albert A. Moss, Pro Se 111 Inwood Terrace Jacksonville, FL 32207 Stanley M. Danek, Esq. Department of Administration Division of Retirement Cedars Executive Center Building C 2639 N. Monroe Street Tallahassee, FL 32399-1560
