Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: The Petitioner, Seminole Community College, is a community college governed by a community college district board of trustees vested with the responsibility of operating the college in accordance with applicable statutes, rules of the State Board of Education and State Board of Community Colleges, as well as its own rules. Each community college board of trustees is responsible for establishing and discontinuing programs and course offerings. Each community college board of trustees is responsible for the appointment, employment, and removal of personnel. Such personnel includes course instructors employed by the college to teach specific courses or programs offered by the school. The Petitioner offers instruction in courses ranging from basic academic subjects, which might be comparable to high school courses, to sophisticated courses that might be comparable to four-year college courses. Additionally, the Petitioner is the area vocational center and adult continuing education function for Seminole County. Prior to April 9, 1991, the Respondent had been a continuing contract instructor employed by the Petitioner for several years. Respondent was employed to teach the upholstery or reupholstery (upholstery) course/program offered by the college. In the 1986 school year, the upholstery program was given a formal evaluation as it had experienced a decline in student enrollment. Goals were established to encourage student participation in the program and additional development of the program. The evaluation or program review described in paragraph 6 was performed under the guidelines addressed in Appendix K, and resulted in the program being placed on probation for one year with the following condition: that the enrollment goal of an average of 16 full-time or full-time equivalent students per term be established. The probation term ran from April 1, 1986 through, presumably, March 30, 1987. Appendix K is a procedure utilized by the Petitioner to evaluate and review programs or courses offered by the school. On March 27, 1986, the president of the college issued a letter to Respondent advising him of the probation status of the upholstery program. The letter further provided that should the program be terminated, that the instructional position held by Respondent would be terminated. In January, 1991, Dr. Samuels, as Vice President for Instructions, issued a memorandum to the Deans' Council advising them of budget cuts incurred and expected by the college. Further, the memorandum provided that it was expected that instruction would have to absorb a major fraction of the expected future decrease amount. On January 17, 1991, the college president issued a memorandum to all full-time college employees that addressed the cuts experienced to that date and the expectation of cuts for the planning for the next budget year. In connection with planning for the 1991-92 budget year, Dr. Samuels met with the deans for areas of instruction under his supervision and requested that they consider alternatives given budget cuts of three levels: $200,000; $400,000; and $600,000. The goal was to prioritize spending to meet the instructional needs of the college, and to assume potential budget "worst case" scenarios. Dean Tesinsky gave the directors of her applied technologies area the following guidelines to prepare their proposals for services and programs: to preserve full-time faculty positions; to preserve full-time equivalent (FTE) student hours; if possible, to reduce regular part-time support first; and to eliminate unproductive programs. "Unproductive programs" were defined as having low enrollment relative to capacity and a decreasing enrollment trend. Such programs are also referred to as "weak programs" in this record. When the reviews of their programs were completed by the directors under Dean Tesinsky, she reported findings to Dr. Samuels. Such findings recommended the elimination of the upholstery, welding and culinary arts (on- campus) programs at the $600,000 budget cut level. The reviews performed by the directors and Dean Tesinsky did not follow the guidelines set forth in Appendix K. Concurrent with the planning incidental to the budget cuts options, Dr. Samuels reviewed information regarding the course offerings and courses or sections not available at the college but which were in great demand by large numbers of students. Courses of instruction which were identified as being in critical need of full-time instructors were: computer assisted drafting (CAD); biology, with laboratory experience; mathematics, foreign languages, and humanities. Further, there were vocational programs within the applied technologies area where additional sections and, consequently, instructors, were needed to meet student demand for courses. As a result of the foregoing, Dr. Samuels concluded that the budget amounts needed for instructors' salaries would have to increase, not decrease. To that end, Dr. Samuels concluded that monies captured from the elimination of unproductive programs could be redistributed to fund sections in the high demand areas of instruction previously identified. Given the notion that they would have to eliminate Respondent's program, Dean Tesinsky, Dr. Samuels, and Russ Calvet attempted to relocate Respondent to another program or course of instruction. However, no course or instructor opening was found for which they felt Respondent could qualify and be reassigned. On March 22, 1991, the college president issued a letter to Respondent that provided, in part, as follows: I have been informed that it is no longer feasible to continue the Reupholstery program. Therefore, in consideration of the College's mission to meet the educational needs of the community, the current budget concerns for the next fiscal year, and the past, present, and projected future enrollments of the Reupholstery program, it has been determined that the program will be discontinued at the end of this fiscal year. It is therefore with considerable regret that I inform you that a recommendation shall be made to the District Board of Trustees on April 9, that your contract with the College be terminated as of June 30, 1991. Your educational qualifications do not make it possible to reassign you to another instructional program area; however, should a position vacancy occur for which you are qualified, you will be notified. On April 1, 1991, the president forwarded a memorandum to the district board of trustees members that addressed the proposed termination of employment of the three vocational instructors. That memorandum reiterated the information given to the Respondent in the letter dated March 23, 1991. On April 9, 1991, the board of trustees voted to terminate the full- time, continuing contract position held by Respondent. Subsequently, Respondent timely requested an administrative hearing to review that decision.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Board of Trustees of the Seminole Community College enter a final order confirming the elimination of the upholstery program and the termination of Respondent's continuing contract. DONE and ENTERED this 30th day of July, 1992, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 1992. APPENDIX TO RECOMMENDED ORDER RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: Paragraphs 1 through 3, 5 through 7, 12, 14 through 22 are accepted. As to paragraph 4, it is accepted that Respondent was hand-delivered the letter notice dated March 23, 1991; otherwise rejected as a conclusion of law. It is concluded, however, that such letter was sufficient to place the Respondent on notice of the college's position regarding the proposed actions. That portion of paragraph 8 which suggests that Director Satterlee's analysis was the first time the reupholstery program was identified as weak is rejected as contrary to the weight of the evidence. This program had a history of being "unproductive" and had, in fact, been on probation in the not-too- distant past. Paragraph 9 is rejected as a misstatement of Petitioner's exhibit 41. That exhibit showed the headcounts as stated but showed the "instructor salary w/benefits" to be $62,552. Paragraph 10 is rejected to the extent that it suggests the reupholstery program had been on probation in any year other than 1986. With the following clarifications, paragraph 11 is accepted: that additional full-time instructors were needed; that the number of adjunct instructors would be reduced since full-time instructors would be added; that adding full-time instructors was a meaningful goal in order to upgrade programs/courses; add "therapy" after the word "respiratory" in the first sentence of 11b.; add under 11c., that there are now less than 500 students on overload status. The first sentence of paragraph 13 is accepted. The remainder is rejected as irrelevant. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: To the extent addressed in the foregoing findings of fact, paragraphs 1 and 2 are accepted. Paragraphs 3 through 5 are accepted but are irrelevant. With regard to paragraph 6, it is accepted that Dr. Samuels is Vice President for Instructions with the general responsibility for all the instructional programs at the college and that he made recommendations to the president of the college; otherwise rejected as not supported by the record cited. Paragraph 7 is accepted. Paragraph 8 is rejected as not supported by record cited. Paragraph 9 is accepted with the clarification that Mr. Calvet's title is Dean of Personnel Services. Paragraph 10 is accepted. Paragraph 11 is rejected as it does not make sense. Paragraph 12 is rejected as contrary to the weight of the evidence. Paragraph 13 is rejected as not supported by the record cited. Paragraph 14 is rejected as irrelevant; no wrongdoing or misconduct has been suggested by the Petitioner. With regard to paragraph 15, it is accepted that the letter dated March 22, 1991, was the first written notice of the proposed action; otherwise rejected as contrary to the weight of the evidence. With regard to paragraph 16, see comment above regarding proposed finding of fact 15. Paragraph 17 is rejected as a misstatement of the record. To suggest the Petitioner contemplating "firing" Respondents grossly misstates their position. The Respondents' programs were eliminated and, consequently, their continuing contracts terminated. No suggestion of misconduct, incompetence, or wrongdoing on the part of these instructors should be suggested. To the contrary, these instructors were well qualified in their respective fields and respected by the employer. Paragraphs 18 and 19 are accepted. Paragraph 20 is accepted to the extent addressed ruling 12 above. Paragraph 21 is rejected as repetitive; see above. Paragraph 22 is rejected as contrary to the weight of credible evidence. Paragraph 23 is rejected as repetitive; see above. Paragraphs 24 through 30 are rejected as contrary to the weight of the evidence, irrelevant, or not supported by the record cited. Paragraphs 31 through 37 are accepted. Paragraph 38 is accepted when clarified to add "an administrative procedure" for "the" after the word "out." Paragraph 39 is accepted. Paragraph 40 is rejected as a conclusion not supported by the record cited. Paragraph 41 is rejected as contrary to the weight of the evidence. Paragraph 42 is accepted. Paragraph 43 is rejected as repetitive or irrelevant. Paragraph 44 is rejected as not supported by the record cited or irrelevant. Paragraph 45 is rejected as not supported by the record cited or irrelevant. Paragraph 46 is accepted but is irrelevant. Paragraph 47 is rejected as argument and irrelevant. Paragraph 48 is rejected as argument and irrelevant. Paragraphs 49 through 52 are accepted. Paragraph 53 is rejected as contrary to the weight of the credible evidence. Paragraph 54 is accepted. Paragraph 55 is rejected as contrary to the weight of the credible evidence. Paragraph 56 is accepted. With the deletion of the word "only" paragraph 57 is accepted. Paragraph 58 is rejected as contrary to the weight of the credible evidence. Paragraph 59 is rejected as not supported by the record cited. Paragraph 60 is rejected as repetitive or irrelevant. Paragraph 61 is rejected as irrelevant or contrary to the weight of the evidence. Paragraph 62 is accepted. The first sentence of paragraph 63 is accepted; otherwise rejected as irrelevant or not supported by the evidence cited or speculation. Paragraph 64 is accepted. Paragraphs 65 and 66 are rejected as not supported by the record cited. Paragraphs 67 is accepted to the extent that the meeting(s) identified the programs as "weaker." Paragraph 68 is accepted but is irrelevant. Paragraph 69 is accepted but is irrelevant. Paragraphs 70 through 73 are rejected as argumentative, irrelevant, or not supported by record cited. The first sentence of paragraph 74 is accepted; otherwise rejected as argument, irrelevant, or not supported by record cited. Paragraph 75 is rejected as argumentative, irrelevant, or not supported by record cited. The first two sentences of paragraph 76 are accepted; otherwise rejected as not supported record cited or contrary to the weight of evidence. Paragraph 77 is rejected as repetitive, irrelevant, and not supported by record cited. Paragraph 78 is rejected as conclusion of law or irrelevant. Paragraph 79 is rejected as it does not make sense or irrelevant. Paragraph 80 is rejected as contrary to the weight of the evidence. Paragraph 81 is rejected as irrelevant. With the addition of the phrase "or could be" after the word "would," paragraph 84 is accepted; otherwise rejected as contrary to the record cited. Paragraphs 85 and 86 are rejected as contrary to the record cited. Paragraph 87 is accepted. Paragraph 88 is rejected as contrary to the weight of the evidence. Paragraph 89 is repetitive in part but is accepted. Paragraph 90 is rejected as contrary to the weight of the evidence. Paragraph 91 is rejected as irrelevant. Paragraphs 92 and 93 are accepted. Paragraph 94 is rejected as irrelevant. Paragraph 95 is rejected as not supported by the record cited. Paragraph 96 is rejected as repetitive or irrelevant. Paragraph 97 is rejected as irrelevant. Paragraph 98 is rejected as not supported by record cited, contrary to the weight of evidence. Paragraph 99 is rejected as repetitive and irrelevant. Paragraph 100 is rejected as repetitive and irrelevant. Paragraph 101 is accepted. Paragraphs 102 through 105 are rejected as repetitive or irrelevant. Paragraphs 106 through 110 are accepted but are irrelevant. Paragraph 111 is rejected as contrary to the evidence. Paragraphs 112 through 115 are accepted. Paragraph 116 is rejected as argumentative. Paragraph 117 is accepted but is irrelevant. Paragraph 118 is rejected as not supported by record cited. Paragraphs 119 through 122 are accepted. Paragraph 123 is rejected as repetitive. Paragraphs 124 and 125 are accepted. Insert word "contact" after "thirty" in paragraph 125. Paragraph 126 is rejected as irrelevant or argumentative. Paragraph 127 is accepted but is irrelevant. Paragraph 128 is rejected as contrary to the weight of the evidence. Paragraph 129 is accepted. Paragraph 130 is rejected as irrelevant. Paragraphs 131 through 134 are accepted. Paragraph 135 is rejected as contrary to the weight of the evidence. Paragraphs 136 and 137 are accepted with the addition to paragraph 137 that such position was only part-time and not vacant. Paragraph 138 is rejected as irrelevant. Paragraphs 139 through 141 are accepted. Paragraph 142 is rejected as repetitive or irrelevant. Paragraphs 143 through 147 are accepted. Paragraph 148 is rejected as contrary to the weight of the evidence. Paragraphs 149 through 152 are accepted. Paragraph 153 is rejected as not supported by the record cited. Paragraph 154 is rejected as not supported by the record cited. Paragraphs 155 through 160 though repetitive in part are accepted. Paragraph 161 is rejected as contrary to the weight of the evidence. Paragraph 162 is rejected as repetitive, argumentative, or irrelevant. Paragraph 163 is rejected as contrary to the weight of the evidence. COPIES FURNISHED: J. Dana Fogle FOGLE & FOGLE, P.A. 217 East Plymouth Avenue Post Office Box 817 DeLand, Florida 32721-0817 Joseph Egan, Jr. EGAN, LEV & SIWICA, P.A. Box 2231 Orlando, Florida 32802 Margaret T. Roberts COBLE, BARKIN, GORDON, MORRIS & REYNOLDS, P.A. 1020 Volusia Avenue Post Office Drawer 9670 Daytona Beach, Florida 32120
Conclusions THE PARTIES resolved all disputed issues and executed a Settlement Agreement. The parties are directed to comply with the terms of the attached settlement agreement. Based on the foregoing, this file is CLOSED. DONE and ORDERED on this the 264 day of June , 2014, in Tallahassee, Florida. Lhd ts ELIZABETH DUREK, SECRETARY Agency for Health Care Administration Filed July 1, 2014 12:17 PM Division of Administrative Hearings A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF . APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. Copies furnished to: Shena Grantham, Esquire Agency for Health Care Administration 2727 Mahan Drive, MS#3 Tallahassee, Florida 32308 Peter A. Lewis, Esquire Law Offices of Peter A. Lewis, P.L. 3023 North Shannon Lakes Drive, #101 Tallahassee, Florida 32303 (U.S. Mail) CERTIFICATE OF SERVICE I] HEREBY CERTIFY that a true and correct copy oft of the foregoing has been furnished to the above named addressees by U.S. Mail on this Dae a Richard Shoop, Esquire Agency Clerk State of Florida Agency for Health Care Administration 2727 Mahan Drive, Building #3 Tallahassee, Florida 32308-5403
The Issue Whether the Florida Prepaid College Board (Respondent) is liable to Stephen E. Pazian (Petitioner) under the Participation Agreement for losses incurred in his investments in the Florida Prepaid College Plan as a result of Respondent’s failure to follow Petitioner’s investment instructions.
Findings Of Fact Respondent is a corporate entity created by Section 1009.971, Florida Statutes,2/ responsible for administering the Florida College Savings Program, also known as the Florida College Investment Plan (the Plan). Petitioner is an individual with a Master’s degree in Business Administration from the University Georgia. Petitioner and his wife have been residents of Homosassa, Florida, since 2003. In October 2003, Petitioner opened two accounts with Respondent under the Plan and directed that the funds for both accounts be 100 percent invested in the U.S. Equity Investment Option. Petitioner opened the first account with an initial investment of $50,000 for his daughter, Jordan S. Pazian, Account Number 0079456. The other account Petitioner opened was for his son, Benjamin W. Pazian, Account Number 0079484, also with an initial investment of $50,000. The contract between Respondent and an account owner under the Plan is the Participation Agreement. The Participation Agreement is incorporated by reference into Florida Administrative Code Rule 19B-16.003. Respondent agreed to the terms of the Participation Agreement when he signed the applications opening the two accounts. In turn, Section 1 of the Participation Agreement provides that “the Florida College Investment Plan Application (the ‘Application’) that I completed, signed and submitted to the Board and the Disclosure Statement is incorporated by reference and made a part of this Participation Agreement.” The Disclosure Statement provided to Petitioner at the time he opened the subject accounts, explained on page 28, that the Board “will mail to the Account Owner quarterly statements indicating: Contributions to each selected Investment Option made to your Account during the period. Withdrawals from each selected Investment Option from your Account made during the period. The total value of your Account at the end of the period.” In addition, the Disclosure Statement explained that the fourth-quarter, year-end account statement would provide the same information for the preceding calendar year and the investment performance for each investment option. The Application forms completed by Petitioner required Petitioner, as account owner, to provide “Contact Information” to the Board as part of the Application. Petitioner listed his address as “11987 W. Timberlane Dr., Homosassa, FL 34448-7311,” on both Applications. On October 13, 2003, Petitioner signed both Applications and initialed the following two paragraphs contained on the final page of the Applications: I have read and understand the Florida College Investment Plan Disclosure Statement and the Participation Agreement, and consent to the policies, terms, and conditions of the Florida College Investment Plan, and the Participation Agreement. I understand that the Participation Agreement, which is incorporated into this application by reference, as it relates to enrollment in the Florida College Investment Plan, constitutes a legally binding agreement between me and the Florida Prepaid College Board. I understand that the policies, terms and conditions of the Florida College Investment Plan and Participation Agreement may be amended from time to time without prior notice, and I understand and agree that I will be subject to those amendments. I understand that enrolling in the Florida College Investment Plan and investing my funds in the investment options involves a high degree of risk, account values may fluctuate and there is no guarantee. I understand that I could lose all funds, including any earnings on those funds, deposited in the account, and investments in the Florida College Investment Plan are not deposits or obligations of, or insured or guaranteed by the State of Florida, the United States government, the Florida Prepaid College Board, the Federal Deposit Insurance Corporation, or any other governmental agency or financial institution. Intuition Systems, Inc., is Respondent’s contract provider of certain administrative services with respect to the Florida College Investment Plan, including processing forms from account owners that direct changes in the selection of investment options within the Plan. On January 10, 2007, Petitioner telephoned Respondent. The call was answered by Intuition Systems, Inc. During the telephone call, Petitioner asked for a personal identification number (PIN) for online access to his two accounts. Petitioner also asked about the process for changing the direction of his investments in the Plan. In his testimony, Petitioner recalled, or thought he recalled, receiving Respondent’s facsimile number during the telephone call on January 10, 2007. That testimony, however, is not credited because, although Intuition Systems, Inc.’s business records reflect telephone contact from Petitioner on January 10, 2007, and that Petitioner ordered a PIN number and asked about changing his investments, there is no indication in the records that Petitioner asked for or received a facsimile number. Petitioner more likely received Respondent’s facsimile number from either its appearance on the first page of quarterly statements of the accounts mailed to Petitioner’s Florida residence, or from Petitioner’s wife, who received the mail and opened the quarterly statements. Petitioner testified that he did not personally receive his PIN, but conceded that it was probably sent to his home. Based upon Petitioner’s testimony and Intuition Systems, Inc.’s records reflecting Petitioner’s request for a PIN and that a PIN number was mailed to Petitioner’s residence in Homosassa, it is found that, within five-to-seven days from January 10, 2007, until Petitioner closed the accounts in 2009, Petitioner had access to a PIN number for online, computer access to investment information to the Plan accounts he opened for his children. Around the same time period (middle January 2007), Petitioner also received either online access to, or one or more copies in the mail of, a document entitled “Florida College Investment Plan Allocation Transfer Form” (Allocation Transfer Forms). Based upon Intuition System, Inc.’s records reflecting the January 10, 2007, telephone call, it is found that Petitioner was “advised of web-for-transfer form,” and the most likely scenario is that Petitioner printed Allocation Transfer Forms from Respondent’s website and provided copies of the forms to his wife. Petitioner left Florida in late January 2007 to live, temporarily, in California to work as president and chief executive officer for Prismedical Corporation. While in California, Petitioner stayed in a large motor home near his work in Napa, California, from approximately late January 2007 until returning to Florida in the fall of 2008. During that time period, Petitioner made several trips back to his residence in Homosassa, Florida. Petitioner is unaware of the exact dates he was in Florida during 2007 and 2008, but estimates he was in Florida on approximately the following dates: January 1 through January 28, 2007, May 31 through June 2, 2007, August 25 through September 3, 2007, September 28, 2007, October 7, 2007, November 21 through November 24,2007, December 23 through December 31, 2007, January 1 through January 2, 2008, February 9 through February 17, 2008, and November 10, 2008, through the end of 2008. During the time period that Petitioner was staying in California, Petitioner never updated his address on file with Respondent from Homosassa, Florida, as set forth in his Applications for the accounts, and there is no evidence that Petitioner otherwise advised Respondent or its administrator of an address change. Prior to February 4, 2007, Respondent’s wife, Barbara Pazian, filled out the top portion of two Allocation Transfer Forms for Petitioner’s two Plan accounts: one for the investment account for their daughter, Jordan, and the other for the investment account for their son, Benjamin. The information Ms. Pazian wrote into the top portion of each of the two Allocation Transfer Forms included Stephen E. Pazian’s name as the account owner, a daytime telephone number in Homosassa, Florida, the names of their two children as beneficiaries of the accounts, and the respective account numbers for the two accounts. Petitioner obtained the two partially completed Allocation Transfer Forms from his wife either before or after he left for California. On Sunday, February 4, 2007, while in his motor home in California, Respondent completed and signed the bottom portion of each of the two Allocation Transfer Forms. The Allocation Transfer Form Petitioner completed for the account in Jordan Pazian’s name authorized Respondent to move 100 percent of the equity balance to the fixed income investment option. The Allocation Transfer Form Petitioner filled out for the account in Benjamin Pazian’s name authorized Respondent to move 50 percent of the equity balance into the fixed income option. The top pre-printed paragraph of the Allocation Transfer Forms provides: Return this form to: Florida College Investment Plan P.O. Box 6587 Tallahassee, Florida 32314-6567 Respondent’s facsimile number is not provided on the pre-printed Allocation Transfer Forms. Instead of mailing the Allocation Transfer Forms, Petitioner prepared a facsimile transmittal cover sheet on his computer and dated it February 5, 2007. The facsimile cover sheet was on Prismedical Corporation letterhead and was signed by Petitioner with a message to the Florida College Investment Plan Finance Department from Petitioner stating, “Please find attached two Investment Fund transfer requests for you to process. Please call me should there be any questions.” On Monday, February 5, 2007, Petitioner instructed Jennifer Teixeira, an office assistant at Prismedical Corporation in California, to transmit by facsimile the two completed Allocation Transfer Forms and the facsimile cover sheet Petitioner had prepared to Respondent at fax number 850- 309-1766. As shown by telephone records, Ms. Teixeira completed the task of transmitting by facsimile the three pages as instructed on February 5, 2007, at 9:28 a.m. While there was evidence adduced at the final hearing that Respondent has acted upon investment instructions received by fax, it is clear that the instructions on the Allocation Transfer Forms require mailing and that it was Petitioner who decided to transmit the forms by facsimile instead of mail. Petitioner received a printout from the transmitting facsimile machine in California indicating that the three pages faxed to Respondent on February 5, 2007, were received by Respondent. Other than review of that printout, Petitioner did not try to confirm with Respondent that his investment instructions were received and Petitioner did not communicate with Respondent regarding his faxed instructions for over one year and nine months. The instructions contained in the two Allocation Transfer Forms transmitted to Respondent in that February 5, 2007, facsimile were never acted upon by Respondent or its administrator, Intuition Systems, Inc. There are a number of possible explanations for Respondent’s failure to follow the investment instructions on the two Allocation Transfer Forms. First, while telephone records show that three pages were transmitted, there could have been a problem with Respondent’s fax machine which prevented actual receipt of the transmission. It is also possible that the transmission was received, but the pages were never printed because of error or because of a confidentiality code on the sending machine in California. Another plausible explanation is that the pages were received and printed out, but then lost or misplaced. A possible, but less likely,3/ scenario is that the three pages were transmitted upside down so that only blank pages were transmitted. The person in charge of document management operations for Intuition Systems, Inc., went through all of the images of incoming correspondence, including faxes, received from February 2, 2007 through February 8, 2007, by Intuition Systems, Inc., on behalf of Respondent, and could not find the fax transmitted by Petitioner to Respondent on February 5, 2007. Regardless of the actual reason, it is clear that the investment instructions contained in the Allocation Transfer Forms for Petitioner’s accounts transmitted to Respondent on February 5, 2007, were never followed. The quarterly account statements for both of Petitioner’s accounts with Respondent for the four quarters of 2007 and first three quarters of 2008 were mailed to Petitioner’s residence in Homosassa, Florida, no later than the following dates: Quarter Mailing Dates First Quarter 2007 May 1, 2007; Second Quarter 2007 August 9, 2007; Third Quarter 2007 November 7, 2007; Fourth Quarter 2007 February 13, 2008; First Quarter 2008 May 12, 2008; Second Quarter 2008 July 31, 2008; Third Quarter 2008 November 6, 2008. Petitioner’s wife, Ms. Barbara Pazian, received all of the above-listed quarterly statements and filed them away at the Pazian’s home in Homosassa. The first paragraph of each quarterly statement mailed to Petitioner’s residence specifically states: This statement summarizes your account activity for the previous quarter. Please review the information carefully. Changes to the account, including a change of address, must be in writing and be signed by the account owner. You may mark your changes directly on this statement, sign the statement and mail it to the address below or FAX to (850) 309-1766. Additional information about your account is available at www.florida529plans.com, Florida College Investment Plan, “Access My Account.” If you have any questions, please call 1-800- 552-GRAD (4723). (Emphasis added). On May 8, 2007, Petitioner’s wife called the Florida College Prepaid Board, through Intuition Systems, Inc., to inquire whether she could use some of the investment funds to purchase a new car for their daughter, Jordan, and was told that she could not. Ms. Pazian wrote a handwritten note stating “car not” on the original first 2007 quarterly report for Jordan’s account. If Petitioner had reviewed any of the above-listed quarterly statements or accessed the accounts on a computer using his PIN number, Petitioner would have seen that the instructions contained in the Allocation Transfer Forms he signed, dated February 4, 2007, had not been followed. The account summaries on the first page of each of the quarterly statements listed above clearly indicate that the only funded investment option in both accounts throughout the time period from 2007 through October 31, 2008, was the “U.S. Equity Investment Option.” According to Petitioner, however, he never bothered to review the quarterly statements or access the accounts by computer from January 2007 through October 2008. During the same time period, however, Petitioners regularly reviewed the performance of his non-Plan investments via online computer access. At the final hearing, Petitioner explained that he did not follow his investments in the Plan because it was his understanding that he could only make investment changes in his Plan accounts once a year. Petitioner further testified that since his Plan investments could not be actively traded like his other investment accounts, he considered them “sort of set-it- and-forget-it accounts.” According to Petitioner, the first time he noticed that his investment instructions had not been followed and that all of his investments under the Plan were still invested in the U.S. Equity Investment Option was when he returned home in November 2008 and decided to review the quarterly statements that his wife had filed away. In contrast, according to the testimony of Respondent’s General Counsel Thomas McSwain, during a telephone conference with Petitioner in February 2009, Petitioner told him that, while Petitioner was in California, Ms. Pazian kept him informed of his Plan account balances each quarter from the quarterly statements. Contemporaneous notes taken by Mr. McSwain are consistent with his recollection of that conversation with Petitioner in February 2009. Based upon Mr. McSwain’s testimony and corroborating notes, as well as Petitioner’s self-reported practice of regularly following his other investments, the undersigned credits Mr. McSwain’s testimony over that of Petitioner and finds that during the period of time that Petitioner was in California, Petitioner’s wife kept him informed of the account balances of his Plan investments when she received quarterly statements for those accounts mailed to Petitioner’s home in Homosassa, Florida. While Petitioner might not have actually reviewed his quarterly statements for his Plan investments from 2007 through the third quarter of 2008, the fact that he was kept apprised of the account balances on a quarterly basis demonstrates that Petitioner had sufficient information to know that his investment instructions faxed to Respondent on February 5, 2007, had not been followed. If Petitioner’s investment instructions had been followed, the quarterly statements would have revealed different account balances between his two Plan accounts. Instead, the account balances reflected on the quarterly statements for both accounts remained exactly the same throughout the time that Petitioner was in California. A change of the investment option for Petitioner’s Plan account for his daughter Jordan from a 100 percent allocation in the U.S. Equity Investment Option on February 5, 2007 to a 100 percent allocation in the Fixed Income Investment Option would have resulted as follows: Account Number: 0079456 Beneficiary: Jordan S. Pazian [Actual] [Adjusted] U.S.EQUITY OPTION FIXED INCOME OPTION Date Shares Price Balance4/ Shares Price Balance5/ 2/5/2007 4,363.7302 $15.83 $69,083.82 6,083.7900 $11.36 $69,083.82 3/31/2007 4,363.7302 $15.67 $68,360.89 6,083.7900 $11.50 $69,989.40 6/30/2007 4,363.7302 $16.51 $72,059.87 6,083.7900 $11.43 $69,533.18 9/30/2007 4,363.7302 $16.63 $72,579.53 6,083.7900 $11.76 $71,530.65 12/31/2007 4,363.7302 $16.11 $70,292.97 6,083.7900 $12.11 $73,660.76 3/31/2008 4,363.7302 $14.93 $65,129.07 6,083.7900 $12.29 $74,761.00 6/30/2008 4,363.7302 $14.59 $63,647.65 6,083.7900 $12.15 $73,947.41 9/30/2008 4,363.7302 $13.65 $59,559.57 6,083.7900 $12.12 $73,737.68 12/31/2008 4,363.7302 $10.76 $46,946.07 6,083.7900 $12.67 $77,094.04 3/31/2009 4,363.7302 $9.56 $41,714.74 6,083.7900 $12.78 $77,756.03 4/30/2009 4,363.7302 $10.58 $46,188.98 6,083.7900 $12.85 $78,203.31 6/30/2009 4,363.7302 $11.12 $48,515.40 6,083.7900 $13.03 $79,290.58 7/10/2009 4,363.7302 $10.62 $46,342.01 6,083.7900 $13.20 $80,327.87 A change of the investment option for Petitioner’s Plan account for his son Benjamin from a 100 percent allocation in the U.S. Equity Investment Option on February 5, 2007, to a 50 percent allocation in the Fixed Income Investment Option and a 50 percent allocation in the U.S. Equity Investment Option would have resulted as follows: Account Number: 0079484 Beneficiary: Benjamin W. Pazian INCOME OPTION[Actual] [Adjusted]U.S.EQUITY OPTION 50% U.S. EQUITY OPTION + 50% FIXED Date Shares Balance6/ (prices same as above) U.S. Equity Shares Balance (prices same as above) + Fixed Income Shares Balance7/ (prices same as above) Total 2/5/2007 4,363.7302 $69,083.82 2,181.8650 $34,541.91 + 3,041.8950 $34,541.91 $69,083.82 3/31/2007 4,363.7302 $68,360.89 2,181.8650 $34,180.44 + 3,041.8950 $34,994.70 $69,175.15 6/30/2007 4,363.7302 $72,059.87 2,181.8650 $36,029.93 + 3,041.8950 $34,766.59 $70,796.52 9/30/2007 4,363.7302 $72,579.53 2,181.8650 $36,289.76 + 3,041.8950 $35,765.33 $72,055.09 12/31/2007 4,363.7302 $70,292.97 2,181.8650 $35,146.48 + 3,041.8950 $36,830.38 $71,976.86 3/31/2008 4,363.7302 $65,129.07 2,181.8650 $32,564.53 + 3,041.8950 $37,380.50 $69,945.03 6/30/2008 4,363.7302 $63,647.65 2,181.8650 $31,823.83 + 3,041.8950 $36,973.70 $68,797.53 9/30/2008 4,363.7302 $59,559.57 2,181.8650 $29,779.78 + 3,041.8950 $36,868.84 $66,648.63 12/31/2008 4,363.7302 $46,946.07 2,181.8650 $23,473.03 + 3,041.8950 $38,547.02 $62,020.05 3/31/2009 4,363.7302 $41,714.74 2,181.8650 $20,857.37 + 3,041.8950 $38,879.02 $59,735.38 4/30/2009 4,363.7302 $46,188.98 2,181.8650 $23,094.49 + 3,041.8950 $39,101.65 $62,196.14 6/30/2009 4,363.7302 $48,515.40 2,181.8650 $24,257.70 + 3,041.8950 $39,645.29 $63,902.99 7/10/2009 4,363.7302 $46,342.01 2,181.8650 $23,171.00 + 3,041.8950 $40,163.93 $63,334.94 Although Petitioner had sufficient information since at least May 2007, to know that his February 2007 investment instructions had not been followed, the first time that Petitioner contacted Respondent regarding those investment instructions was on November 13, 2008, when Petitioner made a telephone call to Respondent through Intuition Systems, Inc. During that telephone call, Petitioner complained that he sent the Allocation Transfer Forms in February 2007, but that the accounts were never updated. The Intuition Systems, Inc., representative who took the call advised Petitioner that the forms were never received and therefore, the Plan accounts could not be updated. Petitioner then spoke to a supervisor at Intuition Systems, Inc., who advised Petitioner that there was no record that the Allocation Transfer Forms had been received. In January 2009, Petitioner sent a letter addressed to Mr. Hoepner, Chairman of the Florida College Prepaid Board, which was received by Respondent on January 12, 2009. In that letter, Petitioner requested that his investments be retroactively changed to reflect the investments and earnings as they would have been for each of the accounts had his investment instructions dated February 5, 2007, been followed. Petitioner’s January 2009 letter also stated, in reference to his investment instructions transmitted February 5, 2007, “The cover sheet for this request as well as the request forms and other relevant documents are attached for your reference.” The attached fax cover sheet was in color, was dated February 5, 2007, and signed by Petitioner, but had no initials of Ms. Teixeira, who had sent the original fax cover sheet on February 5, 2007. Later, during his November 19, 2009, deposition, Petitioner admitted that he had printed out that fax cover sheet in color from his computer and signed it in late 2008 or early 2009, but backdated it to February 5, 2007. Later, Petitioner produced the original fax cover sheet which he had sent on February 5, 2007, which had the initials of Ms. Teixeira on the front. According to Petitioner, his wife found the original. Petitioner’s wife, however, did not remember finding it. Regardless of who found the original, the fact that Petitioner was able to print out, back-date, and sign a copy that appears to be the original fax cover sheet demonstrates the mischief that could be achieved had Petitioner desired to misrepresent the facts regarding his February 5, 2007, facsimile. The undersigned finds that Petitioner did not intend to misrepresent the facts regarding that facsimile, but rather finds that Petitioner was overenthusiastic in his attempt to demonstrate to Respondent what had happened on February 5, 2007, through use of identical copies of the original fax cover resident in his computer. This incident, however, was considered in assessing the credibility of Petitioner’s other assertions in this case. As indicated above, Petitioner spoke to Mr. McSwain on the telephone in February 2009. During that call, Petitioner told Mr. McSwain that he did not want the February 5, 2007, Allocation Transfer Forms implemented until the matter was resolved. Respondent’s executive director sent Petitioner a letter dated April 27, 2009, informing Petitioner that Respondent was unable to approve his request, and offering Petitioner another opportunity to implement changes to his Plan accounts and including forms for that purpose. Petitioner never submitted the forms and no allocation changes took place. After filing the Amended Petition for Formal Hearing dated June 1, 2009, initiating this case, Petitioner’s Plan accounts were closed and rolled over into another 529 college investment plan at his request on or about July 10, 2009. On that date, the balance of each account was $46,292.01, after deduction of a $50.00 rollover fee for each account.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Prepaid College Board enter a Final Order finding that the Florida Prepaid College Board is not liable to Petitioner, Stephen E. Pazian, under the Participation Agreement and dismissing Petitioner’s Amended Petition with prejudice. DONE AND ENTERED this 9th day of March, 2010, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of March, 2010.
The Issue Whether petitioner was "professional staff" within the meaning of Article VII of the University Constitution and therefore entitled to continue as Dean of the College of Education, in the absence of a showing of good cause why he should not continue? Whether FSU breached the 1984-1985 employment contract between the parties when it relieved petitioner of responsibilities as Dean of the College of Education on July 24, 1985? Whether FSU was under a legal obligation to give petitioner notice of good cause for not renewing the parties' 1984-1985 employment contract for the 1985-1986 or subsequent academic years?
Findings Of Fact After James L. Gant announced his intention to step down as Dean of FSU's College of Education, Augustus B. Turnbull, III, FSU's Vice President for Academic Affairs, appointed the College of Education Dean's Search Committee, also known as the Education Dean Search Committee (Search Committee) and named Robert Glidden, Dean of FSU's School of Music, chairman of the Search Committee. Petitioner's Exhibits Nos. 3 and 9. Dr. Turnbull asked that the Search Committee "try to have a new dean on board no later than the fall semester of 1983." Petitioner's Exhibit No. 3. On December 6, 1982, Dean Glidden executed Part A of Form No. SUS/PFR- 001/75 (R3/77), a formal position vacancy announcement prerequisite to any national search. (T.29-30) This form described the "Contract Period" as 12 months; gave July 1, 1983, as the anticipated starting date; stated the position title as "Dean, College of Education"; categorized the position as having regular professorial status; and indicated the "Discipline/Field" as "Administration." Petitioner's Exhibit No. 7. As part of the national search, the Search Committee caused circulars like Petitioner's Exhibit No. 9, "invit[ing] applications and nominations for the position of DEAN COLLEGE OF EDUCATION" to be published in periodicals like the Chronicle of Higher Education, which is how the vacancy came to the attention of petitioner Bruce Wayne Tuckman, whose application for the position eventually proved successful. Agreement Reached On April 28, 1983, Dr. Turnbull wrote Dr. Tuckman "to offer [him] the position of Dean of the Florida State University College of Education which carries with it the rank of Full Professor of Education ... effective ... July 1, 1983." Petitioner's Exhibit No. 10. In the letter, Dr. Turner undertook to recommend Dr. Tuckman for tenure "at the first opportunity, which will be during the 1983-1984 Academic Year." Id. On May 3, 1983, Dr. Tuckman signed the bottom of the letter in the blank provided to indicate acceptance of the offer. In May of 1983, Drs. Turnbull and Tuckman executed an employment contract covering the period July 1, 1983 to August 31, 1983, stating "CLASSIFICATION TITLE/RANK" as "Dean and Professor" and indicating 9040 as the class code. Respondent's Exhibit No. 15. "Dean and Professor" with a class code of 9040 is listed among the general faculty classification titles and codes. Respondent's Exhibit No. 2. "Professor" appears on the same list with a class code of 9001. On the strength of the agreement evidenced by Dr. Turnbull's letter of April 28, 1983, and Respondent's Exhibit No. 15, Dr. Tuckman, a much-published scholar, left a tenured position at the City University of New York and moved to Tallahassee from New York in the summer of 1983. On September 1 and 2, 1983, respectively, Drs. Turnbull and Tuckman executed a second employment contract with terms identical to the first, except that it covered the period September 1, 1983 to August 31, 1984, and had a greater number of pay periods, accordingly. Petitioner's Exhibit No. 11. 1984-1985 Contract Central to the present controversy is the contract executed by Dr. Turnbull on September 2, 1984, and by Dr. Tuckman on September 6, 1984, which provides, in pertinent part: STATE UNIVERSITY SYSTEM OF FLORIDA FLORIDA STATE UNIVERSITY 12 MONTH EMPLOYMENT CONTRACT This contract between Florida State University and the employee is subject to the Constitution and laws of the State of Florida, the rules and regulations of the Board of Regents... Employee Name: Bruce W. Tuckman * * * 3. Department Name: Dean Education * * * 5. Dates of Appointment: 09-01-84 to 08-31-85 * * * 8. Classification Title/Rank: Dean and Professor Class Code: 9040 Appointment Modifier: B * * * The following statement is only applicable to employees holding visiting appointments; or those appointed for less than one academic year; or (3) those with less than five years continuous service who are on soft money": Your employment hereunder will cease on the date indicated. No further notice to you of cessation of employment is required. Petitioner's Exhibit No. 13. "[A]ppointment modifier B ... is for courtesy faculty status." Erb Fontenot v. Florida State University, No. 85-3843 (F.S.U.; Jan. 5, 1987) at page 2. "Persons holding an administrative or services role normally hold a courtesy rank Rule 6C2-1.004(6)(a)7.a. On March 26, 1984, President Sliger had written Dr. Tuckman, advising him that he had been awarded "tenure to be effective Fall Semester, 1984." Respondent's Exhibit No. 1. Auspicious Beginning At first, all seemed to go well with the College of Education and its new dean. As chief executive officer, Dr. Tuckman was responsible for "all budgetary, fiscal and personnel matters in the College of Education," (T.58) and "had the executive responsibility for helping to set the directions and execute the policies and procedures of the college ... [,] sat as an ex officio member of the Policy Advisory Board ... [and] on a number of [other] committees." (T.50) He tended to "general day-to-day kinds of things ... responding to letters," (T.31), affirmative action and grievance matters. As the University Director of Teacher Education, he chaired FSU's Committee on Teacher Education, "organized conferences and committees on behalf of the College of Education [,] provided interface between the College of Education and the public school districts and schools of the state and other officials of the state ... [and] represented the College of Education to outside constituencies, [including] alumni [and] legislators..." (T.58) On May 31, 1984, Petitioner's Exhibit No. 12, and again on March 27, 1985, Petitioner's Exhibit No. 14, Dr. Turnbull rated Dr. Tuckman "satisfactory," the highest rating possible, on forms on which he characterized his primary duties as Administration." Dean Tuckman performed the duties of dean as described in the By-Laws of the College of Education. Petitioner's Exhibit No. 18. Although not required to do so, he also taught every year he served as dean. Complaints Made "[I]n the fall of 84, probably around October, November ... [after it became known that Stephen Edwards was] to assume the position of the Dean of Faculty in January of 1985, faculty members from the College of Education ... [approached him] concerned about the way the college was operating and the kinds of participation in its governance that the faculty were being able to have." (T.377) In due course, Dean Edwards, as he became, relayed these concerns to Dr. Turnbull. Dr. Turnbull had also heard complaints himself from members of the faculty of the College of Education, complaints which he originally dismissed as a normal reaction to somebody who is making necessary changes." (T.229) By the spring of 1985, however, he asked Dr. Tuckman to give him a "list of some of the faculty that he considered to be the future leaders of the college ... not necessarily the old guard or people who for one reason or another would be troublemakers, but a group of faculty on whom he would rely to carry out his policy directions for the college." (T. 228-230) Dr. Tuckman compiled such a list and furnished it to Dr. Turnbull. At a meeting he called in the summer of 1985, Dr. Turnbull discussed matters with "a significant number of" the people Dr. Tuckman had listed, and "asked them to work with [Dr. Turnbull] and the dean to turn the situation around." (T.230) The group struck Dr. Turnbull as noncommittal. At Dr. Turnbull's request, Dr. Tuckman then called a meeting of the Administrative Council, comprised of department chairmen and others. In this meeting, held on a Tuesday, possibly July 16, 1985, it was decided that the Administrative Council would meet again with Dr. Tuckman, without Dr. Turnbull present, and that afterwards the department heads would meet with Dr. Turnbull to "decide where to go from there." (T.231) After the Tuesday meeting, Dr. Turnbull drafted a memorandum addressed to the faculty of the College of Education. He attached this draft to a memorandum to Dr. Tuckman, dated July 17, 1985. In the memorandum to Dr. Tuckman, he referred to the draft as "a draft cover memorandum," solicited Dr. Tuckman's suggestions with regard to the draft, and stated that he "would also like to see a copy of the 'report' from our Tuesday meeting which we can send out with this cover memorandum." Respondent's Exhibit No. 5. Dr. Tuckman wrote Dr. Turnbull a memorandum, dated July 19, 1985. Labelled "PERSONAL AND CONFIDENTIAL," it is now a matter of public record, and reads, in part: I appreciate the gravity of the situation and the difficulty of the position you are in. I struggled through one or two similar crises myself last year, albeit on the department level, where faculty members were opposed to a chairman, and know how hard that is to deal with. I appreciate the consideration you have shown both me and the faculty of the College. It may not need reiteration but I want you to know that I like my job and I want my job. I think you need to keep in mind: the fact that I have only done what I was "brought here" to do and what I said I would do. I have always been honest and forthright with you and with the faculty. I have never been knowingly devious in any of my dealings. the fact that I "inherited" a college suffering from long-term neglect and one which included a number of people who were taking advantage of that situation and of their colleagues. * * * (4) the fact that relatively unused and "rusty" faculty governance structures were not used by me not by choice but because they could not raise quorums and did not have members who wanted to see them used constructively. They are now ready to be used. I was already putting them in readiness when this whole controversy started. * * * I have been less than perfect. I have made mistakes and I am now aware of many of them. But they were honest mistakes and well- intentioned mistakes. I am neither power- hungry nor malicious. Organizations often need to survive conflict in order to coalesce and grow. The essence of the process is having the members accept some of the responsibility for growth and decision-making. I want this to happen. This crisis can be turned from a nightmare into a blessing by a combination of actions by me and you. My job is to "open up all the doors" and let all of the faculty input in. I pledge to you that I will (and have already begun to) use all informal and formal mechanisms to foster faculty participation and involvement. I believe that I am both willing and able to do this. But it will only work if, as I open my doors, you close yours. You need to let it be known that you are satisfied with the plans and directions of the College, that you have helped make sure it is on course, but that its fate depends on it being able to solve its own problems. And, as you know, those problems are many and serious. And, with that decision to let me continue (after all, I have only had two years to deal with problems and habits formed over at least 10 years) , you must step back from the process and let it continue. ... If you step back, the faculty will realize that they must begin to take faculty governance processes seriously and use them constructively to help get us out of this fix. I want faculty involvement and I can get it. If they have nowhere else to go but to faculty committees, faculty meetings and to me, that's where they'll go. But if they can go to you, Steve or Bernie, they'll go there. I ask you personally, professionally and humbly for your help, both for me and for the College. The biggest help you can provide now is to say to the world, let the College of Education solve its own problems if it wants to stay in business. The rest is up to us. Dr. Turnbull felt this memorandum "was too little, too late," (T.236) and that it advocated "the course [he] followed very consistently up until a couple weeks before that." (T.236) On July 22, 1985, the department chairmen, having earlier met with Dr. Tuckman, as agreed, met with Dr. Turnbull. They reported that Dr. Tuckman "still did not understand the seriousness of the situation, and that they were, therefore, not willing to proceed with him to try to change the faculty's mind about the course and direction of the college." (T.231) Resignation Requested Late that day Dr. Turnbull summoned Dr. Tuckman to his office and requested that he step down as dean. Dr. Tuckman asked if he could think it over overnight, and, on the morning of July 23, 1985, told Dr. Turnbull he "wanted to be able to complete this year and have another year; and that at the end of the next year, if [Dr. Turnbull] was ... dissatisfied with [Dr. Tuckman's] performance, then at that time [Dr. Tuckman] would be willing to resign." (T.62) Dr. Turnbull told Dr. Tuckman he was wasting his breath, that he wanted him "out as dean right away." (T.62) When Dr. Tuckman "pleaded with him," id., Dr. Turnbull reportedly said, "A well-worded letter of resignation would resolve [sic] you of all embarrassment or pain." (T.62) But Dr. Tuckman refused to resign, saying, "[Y]ou will have to fire me." Id. No Longer Dean Believing Dr. Tuckman had been insubordinate, Dr. Turnbull wrote a letter to him the following day. The parties stipulated that Dr. Turnbull had full authority to act for FSU's president in these matters. The letter said: Dear Bruce: Effective immediately, you are relieved of your responsibilities as Dean of the College of Education. An alternative assignment for the 1985-86 academic year will be made as soon as possible. Petitioner's Exhibit No. 15. By memorandum dated July 30, 1985, Dr. Turnbull advised Dean Edwards, "Normal procedures should be followed, except that you will substitute for Dr. Tuckman." Petitioner's Exhibit No. 5. On or after July 24, 1985, but no later than July 30, 1985, Dr. Turnbull had assigned Dean Edwards "responsibility for the administrative affairs of the College of Education during the transition following the reassignment of Dr. Tuckman." Petitioner's Exhibit No. 5. By memoranda dated July 29 and 30, 1985, Respondent's Exhibits Nos. 9- 10, and by letter to Dr. Turnbull dated July 29, 1985, Respondent's Exhibit No. 8, Dr. Tuckman made known his view that he had a right to continue as dean, writing Dr. Turnbull, "I cannot accede to your request that I surrender my position," Respondent's Exhibit No. 8, and signing a memorandum dated July 29, 1985, addressed to department heads and ohers, "Bruce W. Tuckman, Dean." Respondent's Exhibit No. 9. On July 31, 1985, Dr. Turnbull sent a memorandum to Dr. Tuckman, with a "blind copy" to FSU's counsel, in form acquiescing to Dr. Tuckman's assertion that he was still dean. This memorandum stated: RE: Revised Assignment of Responsibilities Pursuant to my July 24, 1985 letter to you and our discussion of July 30, 1985, your complete assignment as dean for the period through the expiration of your current contract (August 31, 1985), is as follows: to develop and prepare a written report on the major policy and program initiatives of the College of Education during your tenure as dean along with a summary of your perception of the goals and objectives encompassed in these policies. to provide written recommendations on priorities among these goals, objectives, and plans to implement them, together with any suggestions for alteration as a result of the necessary reduction in College resources. responding upon request to inquiries from Dean Edwards or other appropriate officials about College of Education matters. (Dean Edwards will be assisting during this transitional period in the administration of the College of Education.) This reassignment is not intended to affect your functions and responsibilities as a faculty member. In the best interests of the University and in furtherance of a smooth transition, I am instructing you to vacate the physical quarters of the Office of Dean no later than the close of business on Friday, August 2. An alternative office will be assigned in the Stone Building. Please contact Dean Edwards concerning alternative office space. The practical reality was, however, that Dr. Tuckman did not serve as Dean of the College of Education after July 24, 1985. In September of 1985, Robert L. Lathrop was named interim dean, and he became "continuing dean in January 1987." (T.289) Academic deans customarily serve at the pleasure of university presidents. By memorandum dated February 4, 1964, (but not shown to petitioner before he signed the employment contract), Gordon W. Blackwell, then FSU's president, "instituted" the policy that "Members of the faculty ... hold administrative positions (... dean ...) at the pleasure of the President." Respondent's Exhibit No. 16. This is the norm in the United States. Witnesses at hearing, including academic deans at FSU, testified that FSU's deans served at the pleasure of FSU's president during the time in question. Dr. Turnbull's letter of July 24, 1985, reflected these views, and ended Dr. Tuckman's service as dean, although Dr. Tuckman stayed on as (and remained, at the time of the hearing) a tenured full professor in the College of Education. He received the full salary he contracted for in September of 1984 during the year ending August 31, 1985. Petitioner's Exhibit No. 13. Faculty vs. Professional Staff The, Board of Regents, which heads the Division of Universities within the Department of Education, has allocated university employees among three distinct "pay plans." The position "dean and professor," like the position "professor," has been assigned to the faculty pay plan, rather than to the administrative and professional pay plan, or to the plan for "University Support Personnel," formerly career service employees. (T.131, 190, 197). Article VII of the Constitution of the Florida State University, entitled "The Professional Staff," provides: Those persons holding academic appointments within The Florida State University, but not within a college or school, and those persons within a college or school holding academic appointments whose responsibilities do not include teaching, shall be considered members of the Professional Staff. Members of the Professional Staff having appropriate qualifications and responsibilities shall be assigned faculty rank by the President of the University on recommendation of their administrative officers for the purpose of membership in the General Faculty. Members of the Professional Staff shall enjoy the assurance of annual recommendation for reappointment in accordance with the provisions of the Florida Statutes and the regulations of the Board of Regents. Petitioner's Exhibit No. 17, page 11. Dr. Tuckman first saw this provision in July or August of 1983. (T.86) The text of Article VII, now promulgated as an administrative rule, Rule 6C2-1.004(7), Florida Administrative Code, effective September 30, 1975, has been included in the FSU Constitution since 1959. Similar language may have appeared even earlier as a bylaw, and was originally drafted to authorize conferring faculty rank on librarians. (T.411) As a provision of FSU's Constitution, Article VII is not among the "rules and regulations of the Board of Regents," strictly speaking. By virtue of Article VII or its predecessor, Willis Caldwell, registrar and director of admissions, was given faculty rank, possibly as an associate professor. Catherine Warren, Dean of Women, was "designated as professor," (T.419) under Article VII or its predecessor. Ms. Warren had done graduate work in history at Columbia University, but, like Willis Caldwell, had no academic appointment within a college or school. Article VII was also applied to Robert Pierce, who, as FSU's vice-president for administration from 1972 to 1976 or 1977 (T.417), had no standing in an academic unit. (T.221) It has never been applied to persons who "had faculty status in an academic unit or with tenure." (T.224) When administrators teach, "it's considered part of their responsibility." (T.415) A faculty member who forgoes teaching for research does not, on that account, lose his status as a member of the faculty and become a member of the professional staff. FSU's president, or his designee, has broad authority in assigning administrative responsibilities to FSU's deans, but they are not professional staff, if they have faculty appointments, even if they do not teach. Article VI of the Constitution of Florida State University, Rule 6C2- 1.004(6), Florida Administrative Code, deals at length with faculty members, employees who, like petitioner, have academic appointments. As dean and professor since his arrival at FSU, Dr. Tuckman has had faculty rank all that time. He has enjoyed membership in the General Faculty by virtue of his professorial rank, and has never been a member of the professional staff. Article VII has no application in his case, and was not incorporated by reference in the employment contracts Dr. Tuckman signed.
Recommendation That FSU enter a final order in Case No. 86-2483 declaring the parties' 1984-1985 employment contract, Petitioner's Exhibit No. 13, breached, effective July 24, 1985, but denying further relief in Case No. 86-2483. DONE and ENTERED this 11th day of June, 1987, at Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of June, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2483 Petitioner's proposed findings of fact Nos. 1 through 17, 20, 22, and 24 have been adopted, in substance, insofar as material. Petitioner's proposed finding of fact No. IS has only been adopted to the extent indicated by reference to petitioner's remaining proposed findings of fact. With reference to petitioner's proposed finding of fact No. 19, the FSU Constitution has been adopted as an administrative rule, now numbered Rule 6C- 1.004, Florida Administrative Code. With reference to petitioner's proposed finding of fact No. 21, Dr. Tuckman saw Article VII in July or August of 1983. The evidence did not show that he relied in fact on Article VII. Petitioner's proposed findings of fact Nos. 23 and 25 were not established by the weight of the evidence. Respondent's proposed findings of fact Nos. 1, 2, 4, 5, 8, 9, 10, 12, 13, 14, 16, 18, 19, 21, 22, and 24 have been adopted, in substance, insofar as material. With respect to respondent's proposed finding of fact No. 3, Rule 6C2- 1.004(3)(a), Florida Administrative Code, makes clear that Article VII can confer membership in the general faculty. With respect to respondent's proposed findings of fact Nos. 6 and 7, FSU contracted in September of 1984 for Dr. Tuckman's services as "dean and professor," not only for his services as a professor. Although deans ordinarily hold professorial rank, there is a difference between being dean and being simply a professor. In executing Petitioner's Exhibit No. 13, the parties agreed that Dr. Tuckman would serve as dean through August 31, 1985. With respect to respondent's proposed finding of fact No. 11, the evidence supports every sentence but the antepenultimate, which is partially an erroneous conclusion of law. The evidence did not show that an FSU vice-president had ever before unilaterally removed a dean, although there was testimony that Robert Lawton had been asked for his resignation. (T. 220) Respondent's proposed finding of fact No. 15 has been adopted, in substance, insofar as material, except that the evidence was that Dr. Tuckman had appointed three quarters of the Administrative Council, not three quarters of the department heads. With respect to respondent's proposed finding of fact No. 17, the number was $6,056. Only the first sentence in respondent's proposed finding of fact No. 20 has been adopted as established by the weight of the competent evidence. The first two sentences in respondent's proposed finding of fact No. 23 were established by the evidence. On July 24, 1985, Dr. Tuckman was relieved of his responsibilities as dean. Thereafter, Dr. Edwards acted de facto as Dean of the College of Education. With respect to respondent's proposed finding of fact No. 25, the evidence showed that Dr. Turnbull set out to do what he thought was best for the university without any ulterior motive, but the evidence did not show that Dr. Tuckman had breached the employment agreement or that anything else had relieved FSU of its legal obligations under the agreement. COPIES FURNISHED: President Bernard Sliger Florida State University Tallahassee, Florida Gerald B. Jaski, Esquire Linda C. Schmidt, Esquire Florida State University 311 Hecht House Tallahassee, Florida 32306 Stephen Marc Slepin, Esquire Slepin & Slepin 1114 East Park Avenue Tallahassee, Florida 32301 =================================================================
The Issue Does Certificate of Need (CON) Application 10065 of VITAS Healthcare Corporation of Florida (VITAS) or CON Application 10064 of United Hospice of Florida, Inc. (United), or both, best meet the CON criteria to establish a new hospice program in Service Area 4A (Area 4A), consisting of Duval, Clay, Baker, Nassau, and St. Johns Counties?
Findings Of Fact The Parties AHCA AHCA is the state agency responsible for the administration of Florida's Certificate of Need (CON) Program. It is the only state agency with authority to issue, revoke, or deny certificates of need. VITAS VITAS is a for-profit Florida corporation presently licensed and Medicare/Medicaid certified. It is the oldest, largest, and most experienced hospice service provider in Florida. VITAS is a wholly-owned subsidiary of VITAS Healthcare Corporation (VHC). VHC is headquartered in Miami. It operates over 40 hospice programs nationwide. VHC has approximately 10,000 employees and cares for about 12,000 terminally ill patients each day. VITAS and its predecessor entities date back to the mid-seventies when Hugh Westbrook, an ordained United Methodist minister, and Esther Colliflower, a registered nurse, organized a group of hospice volunteers. In order to raise capital to expand its operations, VHC converted to for-profit status in 1992. At that time Chemed Corporation purchased a minority interest. VHC expanded greatly during the 1990s. Chemed largely funded this period of expansion. Chemed acquired 100% of VHC n 2004. The acquisition did not cause operational changes. Most of the senior management remained after the acquisition. VHC is a hospice industry leader and a socially responsible company. It has been largely focused on hospice care since its start in the late 1970s. VHC's core values are: Patients and families come first; We take care of each other; and We pledge to do our best today and even better tomorrow. VITAS’ significant involvement with the National Hospice and Palliative Care Organization’s and local ethics committees manifests its social responsibility. VITAS is also involved with Certified Pastoral Education programs. United United is a wholly-owned subsidiary of UHS-Pruitt Corporation (UHS-Pruitt), a family-owned, for-profit corporation. United provides long-term care, hospice, home health, and community based services for the elderly. United is also a socially responsible company. UHS-Pruitt, through its affiliates in United Hospice, successfully operates 25 hospice programs in Georgia, South Carolina, and North Carolina. All of the programs were start- ups as opposed to acquisitions. UHS-Pruitt is the largest provider of community nursing home services in Georgia. It is one of the largest providers of hospice services in the southeastern United States. In the early 1990s, Neil Pruitt, Sr., the founder of UHS Pruitt, determined that community nursing home services would not be the model of care delivery for the elderly in the future. He concluded that home and community-based programs such as hospice, home heath, durable medical equipment, and other alternatives to institutional care should be the company's direction. UHS-Pruitt's emphasis on home and community-based services has succeeded. Today, it provides a full continuum of health care services for the elderly, including 71 long-term care facilities, 25 hospice programs, 13 home health agencies, five pharmacies, a healthcare management company, a nutritional services company, a clinical service company, and 14 Medicaid diversion and case management programs. UHS-Pruitt subsidiaries and divisions support United's hospice operations. The subsidiaries and divisions include: (a) United Clinical, which provides clinical consultants and expertise and support services for a full range of health care professions; (b) United Pharmacy, with Doctor of Pharmacy consultants that review each hospice patient's medication regimen; (c) United Rehab, which provides physical and occupational therapies to end of life patients to improve quality of life; (d) United Medical, a full service Durable Medical Equipment and home equipment company; (e) United Home Care, offering a full range of home health services; (f) United Community Services, which provides services such as meals, outdoor activities and monthly field trips; and (g) United Care Management, which operates Medicaid nursing home diversion programs. United offers specialized programs for specific end- of-life patients and their families. Camp Cocoon, a children's grief camp open to any child who has lost a loved one, is one example. United is also the largest provider of post-acute services to veterans in the Southeast. United Veterans Services provides specialized services to veterans participating in all United Hospice programs. It also operates nine specifically certified Veterans Nursing Homes, five in Georgia and four in North Carolina. The Georgia facilities partner with the Veterans Administration to provide hospice services. Community Community is a Florida, private, non-profit corporation. Community is also a socially responsible company. It operates a full service hospice in Area 4A. Community employs approximately 800 people who provide hospice care to an average daily census of 1,100 patients and their families. Community's annual operating budget is $70,000,000. Community has one or more offices located in each of the 5 counties in Area 4A, except for Baker County. Community is Medicare and Medicaid certified. Approximately 80% of Community’s patients are Medicare patients. Medicare pays a fixed rate per day for each of the four levels of care that Medicare requires a certified hospice to deliver. During its 20-plus years of existence, Community and its volunteer board and foundation have reinvested all revenues in excess of expenses, including donations, back into patient care and serving the community in Area 4A. Community’s main office and a 38-bed hospice general inpatient and residential facility, the Hadlow Center, are located on a campus in southern Duval County to serve the most densely populated area of consolidated Jacksonville/Duval County. Community's Acosta Rua Center is a freestanding inpatient and residential facility on the West side of Duval County. Acosta Rua has 16 general inpatient beds that can also be used as residential beds. Community selected the location for Acosta Rua because it is accessible to patients from rural Baker and western Clay County and is in an area heavily populated with lower income elderly persons and African- Americans. Community located its McGraw Center for Caring, a freestanding general inpatient and residential bed facility, on the Mayo Clinic campus. This location facilitates access for patients in east Duval, northern St. John’s, and southern and southeastern Nassau Counties. Community also operates a dedicated hospice general inpatient and residential bed facility in the Pavilion at Shands Hospital in Jacksonville. Community located the facility at Shands to make it available to a large population of inner city, lower income residents who use Shands. In 2011, Community will open a dedicated general inpatient and residential bed unit at Flagler Hospital. The unit will serve patients and families in the southern part of the Service Area, southern St Johns, and south and east Clay Counties. The unit will be like all of Community’s freestanding facilities and units — homelike and designed to provide end of life care with dignity. In addition to its freestanding and dedicated inpatient and residential units, Community contracts with local hospitals for available acute care beds in the hospital, if needed. Community operates a variety of programs that provide services beyond the required minimum standards and levels of care. Examples of its programs include Community Peds Care, enhanced and extended bereavement services, veterans outreach, Camp Healing Powers for children, advanced care planning, and community professional education on end of life issues. Community operates the Neviaser Institute, on its Hadlow campus. The Institute provides professional end of life, health care, and community education to Community's staff and residents of Area 4A. Outreach programs and freestanding facilities, like Community’s, take years to develop. They involve partnerships built on trust, over the long term, with other community health care providers in Area 4A and the community. One example is the "Community Peds Care" program. The program currently serves 117 children facing end of life and their families. Community partners with the State, Nemours Children’s Clinic, the University of Florida, and Shands Hospital Jacksonville for this program. Its services go beyond hospice care. It includes perinatal planning for women at risk. The interdisciplinary, multi-provider "Community Peds Care" program is not restricted to insured or Medicaid patients. "Peds Care" in its present form took three iterations and a decade to succeed. Community spends $640,000 a year in connection with its participation in the Community Peds Care partnership. Community is the only hospice provider in Area 4A that operates freestanding hospice inpatient and residential facilities and dedicated units on hospital campuses, staffed exclusively by hospice personnel. Community’s inpatient and residential facilities and units also provide homelike accommodations (residential beds), on a sliding fee scale, for hospice patients who are temporarily or permanently homeless and are receiving the routine home care level of hospice care. Community has put its financial capital at risk to create program enhancements with an understanding that competition in the market, for the finite set of hospice patients in Area 4A, would increase every time a new provider is added. Community was aware that CON regulations permitted approval of new hospice providers when application of the regulations resulted in the "need" for a new provider. Community was also aware that the regulations permitted approval of a new provider in "not normal" circumstances, even if the "need" rule did not project the need for a new provider. Overview of Hospice Services Florida and federal laws and rules require hospice programs to provide a continuum of palliative and supportive care for terminally ill patients and their families. Palliative care generally refers to services or interventions that are not curative but are provided for the reduction or abatement of pain and suffering. Under Florida law, a terminally ill patient may qualify for hospice care if his or her life expectancy is one year or less if the illness runs its normal course. Under Medicare, a terminally ill patient is eligible for the Medicare Hospice Benefit if the patient's life expectancy is six months or less. A provider must make hospice services available 24 hours a day, seven days a week. The services provided must include nursing, social work, pastoral care or spiritual counseling, dietary counseling, and bereavement counseling. A hospice may provide physician services directly or through contract. Hospices must provide four levels of hospice care: routine, continuous, in-patient and respite. A hospice provides services to a patient and family either directly or by others under contractual arrangements with a hospice. A hospice may provide services in a patient's temporary or permanent residence. If the patient needs short-term institutionalization, the hospice provides services in cooperation with contracted institutions or in a hospice inpatient facility. Routine home care makes up the vast majority of hospice patient days. Florida law states that hospice care and services provided in a private home shall be the primary form of care. Hospice care and services, to the extent practical and compatible with the needs and preferences of the patient, may be provided by the hospice care team to a patient living in an assisted living facility (ALF), adult family-care home, nursing home, hospice residential unit or facility, or other nondomestic place of permanent or temporary residence. A resident or patient living in an ALF, nursing home, or other facility who has been admitted to a hospice program is considered a hospice patient. The hospice program is responsible for coordinating and ensuring the delivery of hospice care and services to the person consistent with statutory and rule requirements. The inpatient level of hospice care provides an intensive level of care within a hospital setting, a skilled nursing unit, or in a freestanding hospice inpatient facility. Inpatient care is a short-term adjunct to hospice home care and home residential care. It should only be used for pain control, symptom management, or respite care in a limited manner. In Florida, the total number of inpatient days for all hospice patients in any 12-month period may not exceed 20% of the total number of hospice days for all the hospice patients of the licensed hospice. Continuous care is basically emergency room or crisis care. It may be provided in a home care setting or in any setting where the patient resides. Continuous care, like inpatient care, was designed to be provided for short periods of time, usually when symptoms become severe and skilled and individual interventions are needed for pain and symptom management. Continuous care is the costliest care for payors and has the lowest profit margin for providers. Respite care is for caregiver relief. It allows patients to stay in hospice facilities for brief periods to provide breaks for their caregivers. Respite care is typically a minor percentage of overall patient days. Medicare reimburses the different levels of care at different rates. The highest level of reimbursement is for continuous care. Medicare covers payment for approximately 85% to 90% of hospice care. The goal of hospice is to provide physical, emotional, psychological, and spiritual comfort and support to a terminally ill patient and the patient's family. Hospice care focuses on palliative care and comfort measures. Hospices provide services according to a plan of care developed by an interdisciplinary group of physicians consisting of nurses, social workers, and various counselors, including chaplains. Individual hospice patients sometimes benefit from services that are not covered by Medicare and/or private or commercial insurance. These services may include music therapy, pet therapy, art therapy, massage therapy, and aromatherapy. There are also more complicated and expensive non-covered services such as palliative chemotherapy and radiation that may be helpful for severe pain control and symptom control. Community provides, and both VITAS and United propose to provide, all of the core hospice services and many of the other services mentioned above to patients. Fixed Need Pool AHCA'S hospice rule includes a numeric need formula for determining the need for an additional hospice program in a Service Area. See, Fla. Admin. Code R. 59C-1.0355(4)(a). The Agency's formula uses an average three-year historical death rate. It applies this average to an area's forecasted population for a two-year planning horizon to project the number of deaths in the area. Then the formula uses a statewide hospice use penetration rate. This is the number of hospice admissions divided by current total deaths. The statewide average penetration rate is subdivided into four categories: cancer over age 65, cancer under age 65, non-cancer over age 65, and non-cancer under age 65. By applying the penetration rates to the projected numbers of death in each category in an area, the rule formula projects hospice admissions (based on death rate and projected population growth) in each category. The most recent published actual admissions are subtracted from the projections to determine the number of projected un-met admissions in each category. If the total un- met admissions in all categories exceed 350, a new hospice is "needed," unless there is a recently approved hospice in the service area or a new hospice provider has not been operational for two years. In this case, application of the numeric need rule projected a "need" for one additional hospice in Area 4A. Subtracting the most recently reported published hospice admissions in Area 4A from the projected number of likely hospice admissions calculated by applying the penetration rates to the projected deaths in Area 4A indicated that there would be 925 more projected admissions than there had been for the period for which the admissions were published. The hospice service use rate in Area 4A has consistently been below the statewide average use rate for the past ten years. Area 4A Area 4A consists of five counties. The central and most heavily populated county is Duval. It includes the urban center of Jacksonville and its population of approximately 860,000 people. Clay and St. Johns County each have approximately 186,000 residents. Nassau County is north of Duval. Part of Nassau County is considered part of the Jacksonville metropolitan area. There are resort and retirement communities along the east coast of Nassau County. The western part of Nassau County is less densely populated and rural. The fifth county, Baker County, is west of Duval County. It is the only state-designated rural area in Area 4A. Baker County's small population is largely concentrated in the southeast quadrant of the county. A large part of the county is part of the Okefenokee Wildlife Refuge. Baker County has the lowest hospice admission rate of any county in Area 4A. None of the existing providers have an office in Baker County. Approximately 72% of Area 4A's population is Caucasian. Approximately 22% of the area's population is African-American. Community has served Area 4A for approximately 30 years. It accounts for approximately 90% of all hospice admissions in the area. In the most recent year for which figures are published, Community had 5,216 admissions. Haven Hospice began operating in Area 4A in 2001. It has an approximately 8% market share and 481 admissions annually. Heartland Hospice opened in 2007. In the most recent 12 month period for which there are published figures, Heartland served 108 patients. The Proposals VITAS and United propose to provide hospice patients in Area 4A with all of the core services and many of the other services mentioned above. The proposals are similar in many respects. Both will provide quality services and propose financially feasible programs. Either applicant could serve Area 4A well if approved. Either applicant would serve the "need" projected by AHCA. Both applicants emphasize what they describe as "underserved" African-American populations and rural populations. Each applicant maintains that its plan for serving these populations is a primary reason to approve its application. "Underserved" is not an accurate description. There is no persuasive evidence that African-American or rural patients in Area 4A who desire hospice services do not have timely access to them. The populations each use hospice services at a lesser rate than Caucasian or urban and suburban populations. But nothing indicates that this is because the services are not available. African-American utilization of hospice services in Area 4A is lower than utilization by the Caucasian population. This is not unique to Area 4A. Lower hospice utilization by African-Americans is common throughout the nation. Nothing indicates that the lower hospice utilization by African- Americans in Area 4A is not normal. To the contrary, the credible evidence establishes that this is the normal state of affairs. Each applicant also identifies a need to serve more non-cancer patients and serve more patients in need of continuous care. There is no persuasive evidence that non- cancer patients or patients needing continuous care in Area 4A who desire hospice services do not have timely access to hospice services. United also maintained that homeless persons with terminal illnesses were individuals who needed more hospice services. There is no persuasive evidence that homeless individuals in Area 4A who desire hospice services do not have timely access to them. Each applicant advances secondary arguments about features of its operations that make it superior to the other. Each applicant acknowledges, as the evidence established, the quality of the other applicant. The applicants make limited criticisms of the reasonableness of each other's proposals. The distinctions between the applicants' proposals are relatively fine and are discussed later. The VITAS Proposal VITAS proposes to establish a main office in Duval County with satellite offices in Baker and Nassau counties. It will open the Baker County office the first year of operation. VITAS projects equipment costs of $170,000 and start- up costs of $83,500. The projections are reasonable. VITAS projects 162 admissions in Year 1 and 297 admissions in Year 2. The projections are conservative and reasonable, especially in light of the market dominance of Community. VITAS' own start-up experience in Brevard, Collier, Volusia, and Flagler counties also supports the reasonableness of the utilization projections. VITAS is able to recruit staff. Its proposed staffing levels and salaries are reasonable. Factors considered in assessing reasonableness include ratios of census to discipline and the number of core employees that will be needed. The proposal of VITAS budgets sufficient funding for physician services and contracted services. VITAS's total projected costs for the proposal are $338,353. This projection is reasonable. VITAS's proposal satisfies both the Local Health Planning Council's general preferences and its hospice specific preferences. VITAS complied with all applicable AHCA rules and preferences. VITAS has well-developed and effective information technology systems that help it deliver hospice services efficiently over large geographic areas. It will use these systems in its proposed Area 4A hospice. VITAS made a number of enforceable commitments in the proposed conditions for the Area 4A hospice. VITAS commits to the following: -Minimum of 3% total patient days to persons in need of continuous care -Minimum of 65% patients with non- cancer diagnoses -Exceed statutory pain control outcome measures -Death attendance of at least 90% of deaths -Patient-family satisfaction score of 90% or greater -Discipline specific satisfaction of 90% or greater -Provide pet therapy -Establish satellite offices in Baker and Nassau Counties -Implement TeleCare Program with 24/7 nurse availability -Establish Local Ethics Committee -Implement CarePlanIT a handheld bedside clinical information system -Provide palliative radiation, chemotherapy, and transfusions where appropriate -Provide hospice services 24/7 as indicated by patient’s medical condition -Patient assessment by physician upon admission -Medical Directors must be board certified in Hospice or Palliative Care medicine within 5 years of employment -RNs encouraged to become certified in Hospice and Palliative Care nursing; with 50% of all supervisory nurses attaining such certification by second year of operation -Chaplains will be Masters of Divinity, from accredited CPE program -Social workers will be Master’s level or Licensed Clinical Social Workers -Designate hospice representative to provide community outreach, promote hospice awareness, and enhance access to African- American individuals in Service Area 4A -A Physician will serve as member of every care team -VITAS will provide bereavement services beyond the normal one year after death of patient, if needed -VITAS will not solicit or accept donations from hospice patients, their families, or the general community -Immediately establish a Clinical Pastoral Education program In addition, VHC (the parent of VITAS) will provide: -A charitable contribution of $300,000 to Florida State College of Jacksonville to fund an Endowed Teaching Chair, Scholarships and the Northeast Florida Initiative for Nursing Workforce Diversity; -A charitable contribution of up to $500,000 to the United Way of Northeast Florida, during the first three years of licensure; -A charitable contribution of $50,000 to the Jacksonville Urban League to expand health and quality-of-life initiatives in the greater Jacksonville area. Florida State College of Jacksonville is the second largest state college in Florida. It has a full array of health programs from entry level to bachelor’s degree. The college produces more nursing graduates than all other colleges and universities in the region combined. The fundraising arm of Florida State College is the Florida State College Foundation. Its sole purpose is supporting the college by raising money to support academic programs and help develop facilities. One component of the VITAS/Florida State College Foundation Hospice Care Partnership Proposal is linked to factors that affect African-American utilization of hospice care. That is the $130,000 contribution to support Florida State College's operation of a Northeast Florida Initiate for Nursing Workforce Diversity. The initiative strives to increase the number of registered nurses from disadvantaged or under represented backgrounds and ensure all citizens have access to culturally, ethically and linguistically appropriate health services. This addresses two factors identified as contributing to lower utilization of hospice services by African-Americans. The remaining components of the $300,000 VITAS proposal are not directly related to factors affecting African- American hospice utilization. VITAS's proposed measure of fulfillment of this commitment is only a signed statement by VITAS and evidence of funds transferred. VITAS proposes a donation of $500,000 to the United Way of Northeast Florida. United Way’s mission is to identify critical issues in the community, perform a needs assessment, and then raise the dollars to address those issues. The organization serves Duval, Clay, Nassau, Baker, and northern St. Johns Counties. The United Way partners with two area hospitals, Baptist Medical Center and Shands of Jacksonville. Shands has a contract with the City of Jacksonville to provide care for indigent and low income persons. It is the largest provider of health services to the indigent in the area. The United Way will use VITAS's donation to expand its elder care advocacy program and to develop better support for caregivers. Through the United Way’s partnership with Shands, donations by VITAS will reach the community’s homeless population. VITAS’ funding would also support United Way’s ?Life: Act 2.? This is a seniors initiative focused on assisting working caregivers, predominantly minority families with low and moderate incomes, to access information and support services, including end of life services. The mission of the Jacksonville Urban League is to assist African-Americans and others achieve social and economic equality. It serves Duval, Nassau, Baker, and Clay Counties, as well as a portion of South Georgia. VITAS commits to a $50,000 grant to the Jacksonville Urban League if approved. The grant addresses the fact that African-Americans utilize hospice services at a lower rate than Caucasians. The Jacksonville Urban League committed to spend $15,000 of the $50,000 grant on expanding community health and end-of-life awareness initiatives offered under the League's African-American Health Network. It also committed that $3,500 would provide educational components about end-of-life care and advance directives as part of quarterly Health and Quality of Life seminars and workshops. The remaining $31,500 is earmarked as follows: $10,000 -- four quarterly community education workshops conducted by a nutritionist focusing on healthy cooking and healthy eating; $12,000 -- sponsorship of the Jacksonville Urban League Centennial Celebration Walk-A-Thon community fund-raiser; $5,000 -- promotion for an employee/community walking program with a goal of each participant walking at least 100 miles during the year as part of the Urban League Centennial Celebration; and $4,500 -- individual incentives for people who sign up for various programs and meet specific goals. VITAS proposes only a signed statement by a VITAS representative and evidence of payment to the Jacksonville Urban League as measurement of fulfillment of the condition. VITAS has been actively involved in the Foundation for Hospices in Sub-Saharan Africa (FHSSA) since 1998. The FHSSA is a national initiative of the National Hospice and Palliate Care Organizations (NHPCO). VITAS is its leading participant, providing both monetary and clinical support over the years. Robin Fiorelli, Senior Director of Bereavement Volunteers for VHC, sits on the FHSSA Board. VITAS participates in FHSSA because that is part of its philanthropic mission. The United Proposal Like VITAS, United relied in its application upon AHCA's projected need for a hospice in Area 4A. United's letter of intent and its application did not propose approval of two programs, one based on the need projection and one based upon special or "not normal" circumstances. United advanced that proposal for the first time in this proceeding. United proposes to establish a main office in Jacksonville and satellite offices in rural Baker and Nassau Counties. United projects admissions of 222 in its first year of operations and 702 in its second year of operations. United's projected increase in second year admissions relies upon its plan to develop home health services in the area if it obtains the certificate of need. United plans to bring its allied services and programs to the area if approved. But none are presently provided in the area. United's second year projections are aggressive but not unreasonable in light of AHCA's projected 925 additional hospice admissions. In any event, United can be reasonably expected to achieve or exceed the same utilization as that projected by VITAS. United projects equipment costs of $170,000, project development costs of $84,853, and start up costs of $83,500. These are reasonable projections. United's total projected costs of $338,353 are reasonable. United's proposal will be financially feasible. It will be financially feasible even with lower utilization than projected. This is because the costs of operation are primarily staffing, which is a variable expense directly related to utilization. The ?break even? point for United is 360 admissions. Thus, even if admissions were reduced dramatically from United’s Year 2 projections, the United proposal remains financially feasible. UHS Pruitt will fund the proposed United project. United, with the support of UHS Pruitt, has the financial resources to fund, accomplish, and operate its proposed hospice program at the cost stated in its CON Application. UHS Pruitt has well-developed recruitment, training and education programs. It operates the Pruitt Online University, with numerous education modules available for each specific discipline in a patient care team. Additionally, United’s parent organization operates a state-of-the-art training and education center at its corporate headquarters in Norcross, Georgia, where it routinely conducts orientation and continuing education classes. The facility is equipped with video conferencing capabilities, multiple classrooms and lecture halls. United will use these resources to establish and operate its proposed hospice program. United will be able to appropriately staff and operate its proposed hospice program. Like VITAS, United is an established provider of high- quality hospice services. United also conditions its CON on becoming accredited by the Community Healthcare Accreditation Program (CHAP), an outside accreditation body. This will help United ensure that it provides high quality care. United commits to several conditions upon its CON. They are: -UHS Pruitt will make all of the services that it provides available to any hospice provider that wishes to contract for the services. This includes services from United Home Care, United Medical, United Pharmacy Services, and United Clinical Services. -A staff member will be responsible for outreach initiatives to the African-American community. -Form an African-American Community planning and outreach team -United will host listening sessions with African-American leaders, African- American clergy and other members of the African-American community -Based on the listening sessions United will develop message, presentation, and marketing materials addressed to the African-American community -Continually assess existing tools and obtain or develop new resources to provide culturally meaningful and appropriate educational opportunities for the African- American community -Provide ongoing comprehensive training for staff and volunteers involved in the outreach program -Develop and maintain a calendar of events that address, support, and celebrate African-American issues, heritage, and healthcare concerns. Staff members will attend the events -Develop a tool to track referrals generated by the outreach program to measure its effectiveness. -Report admissions annually by race to AHCA -Continue active membership in the Emergency Services and Homeless Coalition (ESHC) of Jacksonville, Inc., a non-for- profit alliance of organizations dealing with homeless issues. -Provide hospice services to the homeless in shelters and help with placement -Provide health screening by a registered nurse once a month at a local social service organization chosen in collaboration with the ESHC -Open a centrally located Baker County office immediately upon licensure -Open a centrally located Nassau County office by the end of the second year of operation -Join the St. Johns Rural Health Network -Provide a minimum of 2.5 % of patient days in continuous care by the end of year two -Obtain CHAP accreditation -Join Florida Hospice and Palliative Care, Jacksonville Regional Chamber of Commerce, St. Johns County Chamber of Commerce, Clay County Chamber of Commerce, and Baker County Chamber of Commerce -Make the four annual $2,000 scholarships offered by United Hospice Foundation available to Florida residents. -Meet or exceed all NHPCO Guidelines for qualifications and staffing ratios of patient care staff -Implement rapid pain management protocols to ensure 75% of patients who report severe pain will report a reduction to 5 or less by the end of the second day of care. Statutory and Rule Review Criteria Rule Preferences AHCA is required to give preference to an applicant meeting one or more of the criteria specified in Florida Administrative Code Rule 59C-1.0355(4)(e)1-5. Commitment to serve populations with unmet need Both applicants propose to serve populations that they maintain have an unmet need for hospice services. Those populations are African-Americans, rural residents, and the homeless. The evidence does not establish an unmet need for hospice services for these populations in the sense of people desiring hospice services not being able to obtain them. The evidence establishes that these populations use hospice services at a lower rate than other populations. What the applicants really propose is outreach and marketing of various sorts to increase utilization by these groups. AHCA's apparent health policy and planning goal is to increase utilization by these groups. VITAS and United proposed offices in rural areas. Their plans to increase utilization by rural residents are comparable. One is not better than the other. Both proposals include efforts to improve utilization by the homeless. Neither is superior to the other. Similarly both applicants make plausible and equivalent proposals to increase hospice utilization by non- cancer patients and people needing continuous care (3% for VITAS and 2.5% for United). Neither is superior to the other. Both applicants commit to outreach to the African- American population. Both have a history of serving African- Americans and plans to reach out to the African-American Community. VITAS also has a history of working with the community to increase awareness of end of life options. Finally, VITAS has a more concrete and expansive plan to increase African-American utilization. VITAS's commitments to make donations to the Jacksonville Urban League, the United Way, and Florida State College are specifically linked to activities that designed to increase awareness of hospice services and improve comfort with the idea of hospice in the African-American Community. This specificity and VITAS's history of engagement in the issue of hospice services for African-Americans make its proposal the better one for increasing African-American utilization of hospice services. Commitment to provide in-patient care through contracts with existing health care facilities VITAS and United intend to use scatter beds to provide in-patient care. Both intend to contract with existing health care providers. Commitment to serve patients who do not have primary caregivers at home; the homeless; and patients with AIDS The applicants make equivalent commitments to serve these patients. Commitment to provide services not covered by insurance, Medicare or Medicaid VITAS and United each have a history of providing services not covered by insurance, Medicare, or Medicaid. Both propose to do so in their applications. There proposals on this subject are equivalent. Consistency with plans; letters of support Both applicants provided letters of support demonstrating their outreach to the community and sufficient support within the community. Neither is superior in this factor. Similarly, both applicants demonstrated that their proposals are consistent with the needs of the community and other criteria contained in local and state health plans. Required Program Description VITAS and United provide detailed program descriptions in their CON applications. Both establish reasonable staffing, referral sources, projected admissions, volunteer recruitment, community education, and bereavement services. Although there are differences between the proposals, there is no significant distinction between the two in the quality or feasibility of the proposed programs. Section 408.035(1)(a), Florida statutes -- The need for the health care facilities and health services being provided AHCA projected a need for one new hospice program in Area 4A. There are no special circumstances in Area 4A that would justify adding a new program in the absence of a calculated need. Section 408.035(1)(b), Florida Statutes -- availability, quality of care, accessibility, and extent of utilization Existing providers offer quality and accessible hospice care to the residents of Area 4A. Each applicant can serve the need projected by AHCA. VITAS and United each would provide quality care to the area. It is unlikely, given the utilization rate in Area 4A and the market dominance of Community, that all of the hospice admissions projected will go to the new provider. However, each applicant is capable of satisfying the projected need. Section 408.035(1)(c), Florida Statutes -- ability to provide quality of care and record of providing quality of care VITAS uses over 40 Quality Assurance Performance Improvement measures and reports from them that help it provide high quality care. VITAS has and uses guidelines for intensive palliative care for both internal and external use. The guidelines outline how to approach and manage symptoms pharmacologically and non-pharmacologically. VITAS's medical director will be a direct employee of VITAS. In March of 2010, AHCA cited VITAS's Palm Beach hospice for deficiencies related to, but not causing or hastening, a patient's death. This was an isolated error. Because of a time lag in updating the patient records, the patient was discharged when she should not have been. AHCA made a finding of immediate jeopardy. VITAS responded promptly and correctly with a plan of correction that AHCA accepted. Since then the Palm Beach VITAS program has passed its bi-annual licensure survey. AHCA has also accepted other corrective action plans for unrelated VITAS deficiencies. Given the size of VITAS's operations, the number of people it serves, and VITAS's prompt attention to the deficiency, this incident does not indicate material problems with VITAS's quality of care. United has extensive internal quality assurance and performance improvement programs. United Clinical Services provides consulting services to all of United's hospices from an interdisciplinary care team. United also conducts surveys and audits of United's hospice program. That is one way United ensures quality care for its patients. United also conditioned its Certificate of Need on becoming accredited by the Community Healthcare Accreditation Program. This is an outside accreditation body. United will employ Medical Director services by engaging a physician under contract. Both applicants have a history of providing quality hospice services. Each demonstrated the ability to provide high quality care. VITAS and United each employ qualified people and provide them all needed training. Both applicants proposed appropriate staffing for their programs and good quality control and review practices. Neither applicant's proposed quality of care is superior to the others. They are equivalent. Section 408.035(1)(d), Florida Statutes -- availability of resources, including health personnel, management personnel, and funds for project accomplishment and operation United has adequate financial resources to establish and operate its proposed hospice program. Its parent company is committed to providing the full amount of project costs and is able to fulfill that commitment. VITAS also has adequate financial resources to establish and operate its proposed hospice program. Its parent company is committed to funding the community contributions that VITAS includes in its proffered conditions. Both applicants have the necessary personnell resources available to start and operate their programs. Section 408.035(1)(e), Florida Statutes -- extent to which proposed services will enhance access to health care for residents of the service district None of the existing providers have an office in Baker County. VITAS and United propose to establish an office in Baker County. This will improve the availability of hospice services to rural residents. Between the two applicants, neither proposal to increase availability to rural residents is superior to the other. The applicants and AHCA agree that increasing the low African-American utilization rate is an important goal. There is no persuasive evidence, however, that the lower rate is due to a lack of access to hospice services. The low rate results from a combination of historical distrust of the medical system; reliance upon family, church, and community during a patient's final days on earth; and difficulties with access to health care in general. Both applicants commit to reach out to African- Americans and work with leaders in the community to increase utilization of hospice served. Their commitments include making outreach a primary responsibility of a designated employee. VITAS, through its parent company, has a substantial record of working closely with and supporting the African- American community. Diane Deese, Director of Community Affairs for VHC, works with all minority communities. She works predominately with African-American and Hispanic organizations. Ms. Deese works with the boards and executive leadership of groups and organizations such as the National Medical Association, the largest African-American physician organization in the U.S.; the National Federation of Licensed Practical Nurses; Rainbow/PUSH; the Samuel DeWitt Proctor Conference; and the Full Gospel Baptist Church Fellowship International. The New Orleans Chapter of the National Black Nurses Association asked VHC to help in providing education and support for its nurses, although VITAS has no licensed program in the area. VITAS helped. Since 2003, VITAS has been the only hospice provider actively involved with the National Medical Association. On behalf of VITAS, Ms. Deese works closely with the president of the National Black Nurses Association, as well as with the organization’s Daytona Beach Chapter. Both wrote letters of support for the VITAS proposal. The National Black Nurses Association has a chapter in Jacksonville. For many years VITAS has supported informing African- Americans about hospice care through its engagement with The Duke Institute on Care at the End of Life, a program of the Duke Divinity School. The program was established with a founding gift from Hugh Westbrook (VITAS founder), VHC, and the End of Life Foundation. Crossing Over Jordan is one of the educational programs of the Duke Institute. The Institute created the program to focus on the role of African-American churches in supporting terminally ill members of their congregations. The Full Gospel Baptist Church Fellowship International is a group of predominantly African-American clergy who have worked with the Crossing Over Jordan conferences to educate communities, particularly African-American communities, about hospice and end-of-life care. The Full Gospel Baptist Church Fellowship International has several ministries in Jacksonville, Florida. It has worked with VITAS to educate African-American church congregations about the benefits of hospice and to encourage members to volunteer. The Samuel DeWitt Proctor Conference is a group of African-American pastors. The group leads a number of large and influential churches around the country that have entered into a partnership with the Duke Institute on Care at the End of Life to help it spread the word about the need for African-Americans to know more about hospice and palliative care options for end- of-life care. United has a record of providing hospice services to African-Americans. Overall in 2009, United provided 26% of its hospice patient days to African-Americans in 2009. In communities with large African-American populations similar to Duval, United provided in excess of 46% of its patient days to African-Americans. In 16 of its 25 hospice programs, 26% or more of United’s hospice admissions were persons of African-American descent. In five of United's hospice programs, African- Americans accounted for more than 40% of admissions. United is committed to increasing access to hospice services for African-Americans. Claudia Warren-Wheat is a Clinical Social Worker with United Clinical. She assists the United Hospice programs in the social work and community outreach functions. Ms. Warren Wheat coauthored an article published in the Journal of the National Association of Social Workers examining barriers to access for hospice use by African- Americans entitled "Hospice Access and Use by African-Americans: Addressing Cultural and Institutional Barriers through Participatory Action Research" (Nov. 1999). This Article includes recommendations for dismantling barriers to access to hospice care for African-Americans. United's plan to increase African-American utilization of hospice services includes developing a census tracking tool to routinely track referrals generated by the outreach program to measure its success. Section 408.035(1)(f), Florida Statutes -- immediate and long-term financial feasibility VITAS’s operating cash flow will fund the proposed project cost of $338,000. It is more than adequate to cover the VITAS's project costs. VITAS is an existing hospice provider in Florida and in sound financial condition. VITAS's parent, VHC, will fund the project's charitable contribution commitments. The VITAS proposal is financially feasible in the short-term and long-term. The VITAS pro forma was derived from the same financial model it has used successfully for years. The assumptions used by VITAS for revenues and expenses are reasonable and achievable. Its existing operations in Florida provide sufficient net income and cash flow to ensure the project’s financial success. VITAS’ projected utilization is conservative and is both reasonable and achievable. United has a successful history of establishing new hospice programs. It too has the resources to establish and operate the proposed program. If United does not achieve its projected utilization and linked revenue in the second year of operation, that will not impair its financial feasibility. United can adjust staffing as needed. And United is likely to achieve the utilization needed to "break even. The United project is financially feasible in the short and long term. Section 408.035(1)(g), Florida Statutes -- extent to which proposal will foster competition that promotes quality and cost- effectiveness Both applicants are capable, established hospice service providers with the backing of experience and committed parent companies. Either applicant will foster competition with the existing providers in all arenas including quality and cost effectiveness. Section 408.035(1)(h), Florida Statutes -- costs and methods of construction, etc. Neither applicant proposes construction as part of its proposal. Section 408.035(1)(i), Florida Statutes -- the applicant's past and proposed provision of health care services to Medicaid patients and the medically indigent The applicants present comparable records of providing services to Medicaid and medically indigent patients. VI. Ultimate Findings of Fact Both applicants would provide quality care to their patients. Neither is demonstrably superior to the other. Both applicants will improve access of rural and homeless residents of Area 4A. Neither is demonstrably likely to improve access more than the other. Both applicants propose financially feasible projects. There are no "not normal" or "special" circumstances related to the need for hospice services in Area 4A. Both applicants are committed to and capable of providing care to non-cancer patients. Neither has a demonstrably superior plan for doing this. Both applicants are committed to and capable of providing continuous care to those who need it. Neither has a demonstrably superior plan for doing this. VITAS's plans for increasing utilization by African- Americans, in light of its conditions, are more likely than those of United to improve African-American utilization.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is, RECOMMENDED that the Agency for Health Care Administration issue a Final Order denying the application of United Hospice of Florida, Inc., and granting VITAS Healthcare Corporation of Florida, Inc., a Certificate of Need to establish a hospice program in AHCA Service Area 4A with the conditions stated in VITAS's Certificate of Need Application. DONE AND ENTERED this 22nd day of March, 2011, in Tallahassee, Leon County, Florida. S John D. C. Newton, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of March, 2011.
Conclusions THE PARTIES resolved all disputed issues and executed a Settlement Agreement based on their mutual interests. The parties are directed to comply with the terms of the attached settlement agreement. Based on the foregoing, this file is CLOSED. DONE and ORDERED on this the Sf day ot PAGO Co013, in Tallahassee, Florida. Che ELIZABETH DUDEK, SECRETARY are Administration A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRCIT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA RULES OF APPELLATE PROCEDURE. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. Filed November 5, 2013 11:15 AM Division of Administrative Hearings Copies furnished to: William M. Blocker II, Esq. Agency for Health Care Administration (Inter-office Mail) Oertel, Fernandez, Bryant & Atkinson, P.A. Attn. Segundo Fernandez 2060 Delta Way Tallahassee, Florida 32303 Shutts & Bowen, LLP. Attn. Joseph Goldstein 200 East Broward Boulevard Suite 2100 Fort Lauderdale, Florida 33301 Blank & Meenan, P.A. Attn. F. Philip Blank 204 South Monroe St. Tallahassee, Fl. 32301 Blank & Meenan, P.A. Attn. David S. Osborne 204 South Monroe St. Tallahassee, Fl. 32301 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregging document has been furnished to the above named addressees by U.S. Mail on this the 2/>"aay oto fra 013 Agency Clerk State of Florida Agency for Health Care Administration 2727 Mahan Drive, Building #3 Tallahassee, FL 32308-5403 (850) 412-3630
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, and considering the matters in mitigation, the Hearing Officer recommends that the license of Lula Mae Kemp Tharpe be reissued in April, 1980. DONE and ORDERED this 16th day of March, 1979, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Julius Finegold, Esquire 1107 Blackstone Building 233 East Bay Street Jacksonville, Florida 32202 Robert L. McKinney, Esquire 3071 SW 27th Avenue Grove 27, Suite 7 Miami, Florida 33133
The Issue The issue is whether Respondent should be terminated from employment for the reasons stated in the Final Disposition - Notice of Dismissal (Notice), dated October 11, 2017.
Findings Of Fact Background The College is a public institution of higher education charged with the responsibility of providing post-secondary education. Currently, there are approximately 33,000 students enrolled at the College. It has eight campuses, including the Tarpon Springs Campus. Seven of the campuses have Provosts, who report to the Senior Vice President of Student Services. The College is overseen by a five-member Board of Trustees (Board), each Trustee appointed by the Governor. In this contentious dispute, the College seeks to terminate Respondent from his position as Provost of the Tarpon Springs Campus, a position he has held since 2014 under an annual Contract for Employment for Administrative Personnel of Community Colleges. The contract has been renewed three times, most recently for a term beginning on July 1, 2017, and ending June 30, 2018. The College, however, can decline to renew his contract for no cause at the end of each term. The annual contract provides that "the Board may suspend or dismiss the Administrator [Provost] for cause pursuant to the applicable provisions of the Florida Statutes and the Board of Trustees' Rules and Colleges Procedures." Also, under Board Rule 6Hx23-2.2012 (rule 23-2.2012), the College can terminate contractual employees for "immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness or conviction of any crime involving moral turpitude." In this case, the College relies upon misconduct in office as the ground for dismissal. The contract requires Respondent to comply with all relevant statutes and rules of the State Board of Education, the State Board of Community Colleges, and the Board of Trustees. He also is required to comply with the terms of any College internal policies and procedures in effect at the time that his first contract became effective, and continuing throughout his term of employment. The position of Provost is a very high-ranking administrative position. The Provost is responsible for overseeing all aspects of student services, which includes student complaints of harassment and discrimination, as well as working in partnership with Academic Deans and the faculty. It is a highly visible position with the College and in the community. The College characterized the position as the "face" of the campus and the Tarpon Springs community. The Provost also serves on various community boards and organizations to represent the views of the College. At the time of Respondent's hire in 2014, the President was Dr. William Law, while Dr. Tonjua Williams served as Senior Vice President, Student Services. Dr. Williams is now the President and the one responsible for making the decision to terminate Respondent's employment, subject to confirmation by a majority of the Trustees. Shortly after his hire in 2014, the College became aware of allegations at his prior employment in Virginia, which involved an inappropriate relationship with a subordinate female employee. Dr. Law directed Dr. Williams to speak with Respondent about the allegations. Respondent acknowledged to her that the allegation was true, and, as a consequence, he was moved from a position on campus to a district office position. Dr. Law decided to give Respondent the opportunity to continue to serve at the College, but the expectations of the College with regard to his personal conduct were made very clear in a memorandum to Respondent from Dr. Williams. It stated in part that "it all boils down to exercising good judgment. Modeling good judgment is highly valued at [the College] and has a significant impact on staff morale, leadership effectiveness and student success." Respondent acknowledged in writing that he received the memorandum. According to the President, this established the expectation that he would always use good judgment in matters concerning the College. During his tenure at the College, Dr. Williams and Respondent had what she characterized as a "great relationship," "a very close working relationship," and one that was "open and transparent." She added "[t]here were no problems with us reaching each other when we needed to speak and talk." The Incident Around 1:30 a.m. on August 21, 2017, a physical altercation between Respondent and a female occurred at her apartment in New Port Richey. Although Respondent is married, the two had been involved in an affair for around two years. The female was not a student or employee of the College. On Thursday, August 31, 2017, Respondent was served with papers requiring him to appear for a hearing in circuit court on a domestic violence injunction involving the female. While attending the hearing on Friday, September 1, 2017, Respondent was arrested by the Pasco County Sheriff's Office and charged with two felonies, one for Burglary - Occupied Dwelling Unarmed (§ 810.02(3)(a), Fla. Stat.), and another for Battery - Commit Domestic Battery by Strangulation (§ 784.041(2)(a), Fla. Stat). Both charges related to the incident that occurred on August 21, 2017. After spending the night in jail, Respondent bonded out on Saturday, September 2, 2017. On October 26, 2017, the charges were dismissed by the State Attorney after he declined to prosecute the matter. Events After the Arrest The College was closed officially for Labor Day weekend on September 2, 3, and 4, 2017. On Tuesday morning, September 5, 2017, Respondent texted Dr. Williams asking, "can we talk privately tomorrow I have a home life situation but I need to converse with you." Respondent knew that Dr. Williams planned to attend a conference at the Tarpon Springs Campus the following day, and he intended to speak with her at that time. Dr. Williams responded "absolutely." Nothing in the text suggests the "home life situation" was related to a legal matter or criminal arrest or that there was any urgency in meeting with her. Nor did it suggest that the subject of the meeting involved something that could potentially affect the College's reputation or his continued employment. In fact, Dr. Williams assumed he wanted to discuss "a personal matter." Due to the threat of Hurricane Irma, then in the Gulf of Mexico and headed towards the state, Dr. Williams did not attend the conference the next day. Also, the College closed officially on September 6, 2017, due to the hurricane and did not reopen officially until September 18, 2017. With the approval of his supervisor, Dr. Rinard, Respondent flew to Maryland, where his wife and children reside. He did not return to Florida until September 13, 2017. During this intervening period, he did not attempt to contact his supervisor or the President regarding his arrest. Even though the College was closed for the hurricane, administrators continued to perform duties and responsibilities related to the safety and security of the College. Dr. Williams conducted at least two conference calls per day via telephone or Skype, where as many as 60 administrators would join in the call to discuss situations on the campuses. Although he was in Maryland much of the time, Respondent joined in the conferences on most, if not all, of those occasions. In fact, on Monday, September 11, 2017, he texted Dr. Williams regarding the situation on the Tarpon Springs campus, which had been conveyed to him by his staff. On September 12, 2017, Respondent texted Dr. Williams and advised he was returning from Maryland. The text stated in part: "I need to speak to you regarding a personal/family matter. I will discuss all in detail with you." Again, it made no reference to his arrest. After he returned to Florida the next day, Respondent and Dr. Williams agreed to meet on September 14, 2017, at a local restaurant. However, the President later informed Respondent that she was unable to make the meeting and needed to reschedule. She attempted to reach him later that day by telephone to reschedule the meeting but was unsuccessful. At that point, she assumed Respondent wished to discuss a personal family matter that did not involve the College. The two exchanged texts again on Sunday, September 17, 2017, but Respondent chose not to mention his arrest. Around noon on September 18, 2017, or 17 days after his arrest, Respondent telephoned Dr. Williams, and, in a 15-minute conversation, he advised her that he had been arrested on September 1, 2017, he was innocent of the charges, and he had retained counsel. He also told Dr. Williams that he was involved in a relationship with a woman that went awry, and the incident was not work-related. Respondent added that he had gone to court on September 1, 2017, to file a restraining order against the female, and he believed he was being scammed.1/ During the call, Dr. Williams told Respondent she needed more details. She specifically asked that he provide a police report with the details of the incident and the name of the victim to verify she was not a student. Dr. Williams also told Respondent that he needed to contact Dr. Rinard, his immediate supervisor, and tell him what had happened. Had Respondent been unable to reach Dr. Williams by telephone on September 18, 2017, his belated efforts to notify the President would be further delayed, as Respondent's first choice was to speak to her one-on-one, or if this was not possible, to discuss the incident by telephone. His actions also raise an inference that he always intended to speak with the President, and not his direct supervisor. Later that same day, September 18, 2017, Respondent spoke with Dr. Rinard by telephone. According to Dr. Rinard, Respondent "informed [him] that he had had an affair, that the woman he had an affair with had pressed charges, he was arrested, that these were all lies, that she was a thief, she had stolen property, [and he] admitted that he was wrong to have had an affair." Dr. Rinard asked Respondent if the incident involved a student or employee or occurred on College property. He was told it did not. He did not provide Dr. Rinard with the name of the victim. The following day, the two again spoke briefly while attending a Board meeting. Respondent asked if he needed anything more in reference to their conversation the previous day and Dr. Rinard answered "no." While at the Board meeting, Respondent spoke privately with a Board member, Trustee Gibbons, and disclosed that he had been arrested. On the evening of September 18, 2017, the President telephoned Respondent and commented that she was looking at the charges on a website. She said she needed more information regarding the incident, but Respondent told her he had no documentation regarding the arrest. During the call, Respondent asked the President to speak with his attorney who could provide any details that she wanted concerning the charges. Although Dr. Williams testified there was no agreement to speak with the attorney, Respondent's criminal attorney, Mr. Theophilopoulos, testified that he understood Dr. Williams had agreed to a conference call around 5:30 p.m. on September 20, 2017, so that he (the attorney) could answer any questions she had. Dr. Williams denies that a conference call was scheduled. Respondent contends otherwise and says he went to his attorney's office and waited for her to call at the scheduled time, and when she did not, they both attempted to call her from his office but were unsuccessful.2/ Whether or not such a call was scheduled, it is undisputed that it never took place. However, Dr. Williams telephoned Respondent around 6:11 p.m. on September 20, 2017, while he was driving home from his attorney's office. The Vice President of Administrative/Business Services & Information Technology, Mr. Miles, participated in the call. Mr. Miles has oversight of the Human Resources Department. During the call, Dr. Williams informed Respondent that he was being placed on administrative leave, with pay and benefits, effective that date. Again, she requested a copy of the police report or details of the incident, as the College needed more information so that it could properly assess the situation. Respondent replied that he had no written reports but his attorney had "new information" regarding the charges. Respondent was told to have his attorney contact the College General Counsel, Ms. Gardner. A few hours after the phone call, Respondent received a memorandum from Dr. Williams via email confirming that he was being placed on administrative leave, with pay and benefits, until further notice. According to Dr. Williams, this would give the College more time to thoroughly review the situation before deciding what action to take. At that time, the College still lacked the name of the victim and detailed information regarding the arrest. On September 20, 2017, Dr. Williams notified three of the five Trustees about the incident and shared with them the information she had gathered up to that point. She also told them she was still "working" on what action to take. Respondent decided to return to Maryland the same evening he was placed on administrative leave. He testified that while driving to Maryland, he received a call from Trustee Gibbons, who told him the Board had voted to not terminate him if he was cleared of the charges. This assertion was not corroborated, and there is no record of any Board meeting at which a vote would have taken place. The Termination Process On September 21, 2017, Dr. Rinard advised Tarpon Springs faculty and staff that Respondent had been placed on administrative leave and that an interim Provost had been appointed. That evening, Dr. Williams and Mr. Miles spoke with Respondent by telephone. They informed him that the College had not yet received information regarding the arrest and instructed Respondent to return his keys. Mr. Miles offered to meet with him to pick up the keys. However, Respondent, who by then was in Maryland, told them he had already mailed his keys to his attorney. The following day, September 22, 2017, through its own investigation, the College was able to obtain a copy of the Pasco County Complaint Affidavit providing additional details regarding the arrest. On Saturday, September 23, 2017, Mr. Miles left a voicemail for Respondent and reminded him that he wanted to meet with him to obtain the keys to College property. Mr. Miles also sent a text, which stated, "Dr. Williams asked me to obtain your work keys so I'm coming today," meaning that he (Mr. Miles) would drive to Respondent's home in Palm Harbor or the campus that day to retrieve the items. In response to Mr. Miles' request, Respondent replied by email that the keys had been sent to his attorney via Federal Express from Maryland. He added that if the College had any further questions, his attorney should be contacted. As of Monday, September 25, 2017, the College had not received any additional information from Respondent or his attorney regarding the arrest, and it had not received Respondent's keys or swipe card. On September 25, 2017, Dr. Williams determined that termination proceedings should begin. The same day, Dr. Rinard issued a memorandum recommending that Respondent be dismissed from employment. The basis for the recommendation was as follows: You have engaged in misconduct by not timely disclosing to the College your arrest and the charges pending against you. You have also engaged in misconduct by not providing the College with documentation related to your arrest and not returning the College's property upon request. You have also engaged in misconduct by not being truthful and forthcoming about the details of your arrest. The memorandum was actually prepared for Dr. Rinard's signature by Mr. Miles, who oversees the Human Resources Department and is also an attorney. According to the memorandum, Respondent's actions violated rule 23-2.2012, which authorizes the College to terminate an administrator for the offense of "misconduct in office." The recommendation also referred to rule 6Hx23-2.19, which outlines the procedure the College must follow when it proposes to terminate an employee. The following day, September 26, 2017, Respondent's attorney emailed the General Counsel asking for directions on where to return the keys and swipe card that were in his possession. She replied that all College property, including any electronic devices or computers, should be delivered to the security desk lobby of the district office in St. Petersburg. On September 28, 2017, five days after Dr. Williams' directive, the keys and swipe card were delivered and secured by the College. The College did not receive Respondent's college- owned laptop and other electronic devices until October 11, 2017. The Predetermination Hearing and Termination After the recommendation to terminate was issued, Respondent requested a predetermination hearing, which is afforded an employee before a decision is made regarding termination. On October 5, 2017, a hearing was conducted by the Senior Vice President of Instructional & Academic Programs, Dr. Anne Cooper, who had the authority to affirm, modify, or reject Dr. Rinard's recommendation. Respondent was accompanied by his attorney at the hearing. At the hearing, Respondent was provided a timeline of events. In response, Respondent presented his own timeline for reporting the arrest, as well as a written statement from the alleged victim in the incident which resulted in his arrest. On October 9, 2017, Dr. Cooper issued a recommendation to the President that Dr. Rinard's decision to terminate Respondent's employment be upheld. The recommendation is found in Petitioner's Exhibit 11. By letter dated October 11, 2017, the President advised Respondent that she was upholding the recommendation for dismissal because Respondent: Failed to timely advise supervisor and college administration of the arrest and nature of the charges; Failed to provide the college with information and requested documentation regarding the arrest and allegations; and Failed to immediately return college property as requested. These grounds differed slightly from those in the memorandum signed by Dr. Rinard on September 25, 2017. Whereas Dr. Rinard's memorandum stated that Respondent had failed to timely inform the College of his arrest and pending charges, Dr. Williams' Notice stated that Respondent had "[f]ailed to timely advise supervisor and college administration of the arrest and nature of the charges." Whereas the memorandum stated that Respondent had failed to provide the college with "documentation related to [his] arrest," the Notice stated that he had "[f]ailed to provide the college with information and requested documentation regarding the arrest and allegations." Finally, whereas the memorandum stated that Respondent had not returned the College's property upon request, the Notice stated that Respondent had "[f]ailed to immediately return college property as requested." Although Respondent contends he is prejudiced because the original charges were modified, the allegations in the memorandum and Notice are substantially the same, and Respondent did not demonstrate how he was prejudiced by the minor changes. No matter which set of charges apply, the College has established that the allegations are true. The College Regulations and Policies Both parties agree there is no specific College regulation that requires employees to immediately notify their supervisor or other College officials after they are arrested and charged with a crime. However, Dr. Williams stated there is an expectation that a high-ranking employee, such as a Provost, should immediately notify his supervisor, within one or two working days, given the repercussions to the College that might arise if and when the charges became public.3/ The College relies on rule 23-2.2012 as the "principal ground for prosecution in this case." That rule allows the College to dismiss an employee under written contract for "misconduct in office." The term is not further defined by rule or statute that is applicable to the College. Because Respondent is not a career service employee, the College cannot rely on procedures applicable to that category of employees. Analysis of Respondent's Conduct At hearing, Respondent characterized the incident as "a personal and private matter" that was unrelated to the College. However, he agreed he had an obligation to tell the President and Dr. Rinard about the incident so that the College would not be blind-sided if the incident became public. He contends he made good-faith efforts to contact Dr. Williams by texting her on several occasions to request a meeting. But none of the texts stated, or even suggested, that he needed to speak with her about a work-related matter or that he had been arrested for two felony charges. Moreover, these efforts evidence the fact that he knew he had an obligation to timely, completely, and candidly report anything that could impact his effectiveness as a Provost or the reputation of the College. He failed to fulfill this obligation. Respondent does not dispute the fact that he made no effort to notify his immediate supervisor, Dr. Rinard, regarding his arrest until Dr. Williams instructed him to do so on September 18, 2017. More than likely, this was because he had very little contact with Dr. Rinard, who had assumed his position in July 2017. On the other hand, he had a much closer relationship with the President, and she is the individual who makes the final decision. According to Respondent, it was important that he discuss the matter one-on-one with the President due to the "nature of the sensitivity of the situation itself, my accuracy of understanding the accusations and the false accusations, which were also racially motivated." After Respondent was unsuccessful in personally speaking with the President on September 6, 2017, he should have immediately disclosed his arrest by telephone. The record shows that he had ample opportunity to report the incident to the President by telephone beginning on the day after he was arrested. His failure to do so exhibits a lack of good judgment and trustworthiness. The delay in reporting the arrest from September 1 until September 18, 2017, was unreasonable in light of all circumstances. As Dr. Williams noted, "there is an expectation of good judgment for Provost and campus leaders, Deans, and others in that role. And you always expect your leaders, you know, [to] protect the Institution and make sure they are aware of what is going on." In the same vein, Mr. Miles pointed out that the College ended up having "to get the information ourselves" after Respondent failed to provide additional information regarding the arrest. This led him to ask whether he could "trust Dr. Bright to give me what I need to do the job that I need to do." He added that it was imperative that the College know "what exposure" it might have and how to "react to the situation" should the incident become public. Dr. Cooper, who conducted the predetermination meeting and is the chief academic officer of the College, testified that the Provost is a high-profile position and the face of the campus in the community. She noted that even though the College was closed for a hurricane, "there were multiple opportunities to report the incident to his direct supervisor, Dr. Rinard, and he failed to do so." She also testified that the incident could have blind-sided the President and Board of Trustees and put "the College in a very poor light in regard to the community." She added that "there was potential for multiple issues associated with not reporting it sooner," and "someone in that high-profile leadership position would know that." She summed it up by saying that even if there was not a specific written policy requiring Respondent to promptly report the incident to his superiors, an obligation to do so "is leadership 101." Besides failing to report the incident for 17 days, the evidence as a whole shows that, once the incident was reported, Respondent was non-responsive, uncooperative, and somewhat evasive in responding to Dr. Williams' direction to provide her additional information regarding the arrest and the name of the victim. The President had legitimate reasons for requesting additional information. Without this information, the College was at risk of having its reputation and credibility damaged. As the President pointed out, she asked for information, and when she did not receive it, this forced her to "go dig [herself] to find information" from another source. This should not be the job of the President. Finally, as previously found, Respondent did not promptly turn in all College keys and equipment, despite being told to do so on numerous occasions.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that St. Petersburg College enter a final order terminating Respondent's employment as Provost at the Tarpon Springs Campus. DONE AND ENTERED this 4th day of April, 2018, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 4th day of April, 2018.
The Issue The Administrative Complaint herein charges Respondent with violation of Section 458.331(1)(x) F.S. (violating Rule 21M-28.002 F.A.C.) by failing to submit documentation verifying his continuing medical education for the period January 1, 1986 through December 31, 1987 in response to the Board of Medicine's random audit and further charges him with violation of Section 458.331(1)(a) by attempting to obtain, obtaining, or renewing a license to practice medicine by bribery, fraudulent misrepresentations, or through error of the department or board, to wit: falsely certifying that he had completed the continuing medical education requirements for the period from January 1, 1986 through December 31, 1987.
Findings Of Fact At all times material, Respondent was licensed by the Florida Board of Medicine, License No. ME 0034111. Respondent's Florida license expired on December 31, 1989 and has not been renewed. The Board of Medicine does not permit licensees to renew their licenses during a period of suspension. Pursuant to an October 29, 1990 Final Order, Respondent's license was suspended until such time as he complied with a prior December 16, 1988 Final Order reprimanding him and imposing an administrative fine of $2500 for a violation of Section 458.331(1)(b) F.S., discipline in another state, Texas. This cause involves Respondent's last biennial license renewal for the period 1988-1989. Pursuant to Section 455.213(5) F.S. as a condition of renewal of a license, the Board of Medical Examiners (Board of Medicine) shall require licensees which it regulates to periodically demonstrate their professional competency by completing at least 40 hours of continuing education every two years, of which at least five hours shall concern risk management. Criteria for, and content of, continuing education courses shall be approved by the Board. Pursuant to Rule 21M-28.002 F.A.C. every physician licensed pursuant to Chapter 458 F.S. shall be required to complete 40 hours of continuing medical education (CME) approved by the Board in the 24 months preceding each biennial renewal period as established by the Department. At least five of such CME hours required for renewal shall concern risk management. Pursuant to Rule 21M-28.002(2)(a) F.A.C. "risk management" means the identification, investigation, analysis, and evaluation of risks and the selection of the most advantageous method of correcting, reducing, or eliminating identifiable risks. Pursuant to Section 21M-28.002(3) F.A.C., part of the application for renewal shall include a form on which the licensee shall state that he has completed the required continuing education. Additionally, the licensee is affirmatively charged with retaining such receipts, vouchers, certificates, or other papers, such as physician recognition awards issued by the American Medical Association (AMA), as may be necessary to document completion of the continuing medical education listed by the licensee on the renewal form for a period of not less than four years from the date the course was taken. The Board is affirmatively charged with randomly auditing such numbers of licensees as is necessary to assure that the continuing education requirements are met. On or about January 18, 1988, Respondent signed the following statement which was thereafter submitted as part of his request to renew his license to practice medicine: I hereby certify that during the period January 1, 1986, through December 31, 1987, I have obtained no fewer than forty (40) hours of continuing medical education courses which meets the requirement of Chapter 455.213(5), Florida Statutes, and Rule 21M-28.002(6), Florida Administrative Code. I further certify that at least five (5) of the forty (40) hours concern risk management pursuant to Rule 21M-28.002(2), Florida Administrative Code. I understand that I must maintain such receipts, vouchers, certificates, or other papers to document completion of the CME requirements for a period of not less than four (4) years from the date the course was taken. I affirm that these statements are true and correct and recognize that providing false information may result in a fine, suspension or revocation of my license as provided in Florida Statutes 455.2275, 775.082, or 775.084. The aforementioned statement concerning CME courses taken January 1, 1986 through December 31, 1987 was required as part of the renewal process for the licensing period from January 1, 1988 through December 31, 1989. Without this statement, Respondent would not have been permitted to renew his license to practice medicine in Florida, but having made it, he was permitted to renew his Florida license. That renewal was based, in part, on the aforementioned statement signed by Respondent regarding completion of the mandatory CME credits. Thereafter, Respondent was selected randomly for audit purposes to verify his continuing medical education for the January 1, 1986 through December 31, 1987 period covered in his statement made January 18, 1988, as a predicate to license renewal. Respondent was required, pursuant to rule, to retain his documentation of 1986-1987 CME courses up through that course's same month and day in 1990 (for 1986) and 1991 (for 1987). On February 17, 1989, the agency received some CME documentation from Respondent, but it was returned to Respondent because it failed to document the required 5 hours in risk management (TR-12). Thereafter, Petitioner prosecuted Respondent for failure to provide adequate documentation of 5 hours of risk management CME credits and 35 hours of Category I CME. (TR-12-13 and the Administrative Complaint herein.) Mr. George Schaffer, the Department of Professional Regulation (DPR) investigator, testified that he also wrote Respondent for documentation of all 1986-1987 CME credits (TR-26-27). Respondent replied to Mr. Schaffer's letter on June 12, 1990, stating, in pertinent part, as follows: I am in receipt of your letter of 6/7/90 concerning continuing education for 1985. To the best of my knowledge, this was submitted when requested. Due to lack of storage space, I am unable to keep papers from these activities longer than two years and I no longer have papers for CME 1985 in my possession. Part of my CME for that period was in Medical management and quality assurance and I did receive my MBA in June of 1986. (P-5) [Emphasis supplied.] Mr. Schaffer's letter is not in evidence, and Respondent's foregoing June 12, 1990 letter suggests that Respondent was under the impression that Mr. Schaffer was asking him to submit only 1985 materials concerning risk management courses. It is noted that as of 6/7/90, Respondent was only required by law to have available documentation from 6/7/86 forward (four years from date of any CME course), and that if Respondent had completed all his required CME credits between January 1, 1986 and June 6, 1986, he was not required by statute and rule to retain and produce the proof thereof after June 6, 1990, and given the agency's return of his documents to him in February 1989 with no question raised to all his CME credits, but only to his risk management credits, it is not unreasonable that he might not have retained all of his CME documentation. However, in his response to Mr. Schaffer, Respondent has admitted that, contrary to law, he has failed to retain any CME materials more than two years. Likewise, once he was timely informed in February 1989 that his risk management hours were incompletely documented, he was on notice as of that date to submit proper documentation for his risk management hours, and as of that date charged with retaining and producing that documentation. After the Administrative Complaint herein was filed, the Respondent mailed to the DPR attorney of record a January 2, 1991 letter from "Prof. The Hon. Dr. M.E. West, O.M." on stationery of the University of the West Indies, Mona, Jamaica Campus. That letter states: TO WHOM IT MAY CONCERN CATEGORY 1 CME HOURS This is to certify that Dr. The Hon. Albert B. Lockhart has participated in a going Medical Education in the area of Risk Management from 1985-90. The hours are as following:- 1985 10 hours 1986 12 hours 1987 10 hours 1988 15 hours 1989 12 hours 1990 10 hours TOTAL 69 hours (Signature) Prof. The Hon. Dr. M.E. West, OM (P-6) Rule 21M-28.002 (6) F.A.C. describes and defines the CME courses approved by the Board and does not on its face certify as approved the courses set out in the foregoing finding of fact. The letter from "Dr. West" is not verified or notarized, and there is no evidence in this record to establish who "Dr. West" is or what constitutes his authority with regard to "going" Medical Education, whatever that may be. Respondent did nothing further to establish his compliance with the Florida CME requirements. The result is that Respondent has only established that during 1986 and 1987, the years he was requested to document, he took 22 hours of medical education, which hours have not been shown to meet the quality standards established by the Board for either Category I CME or risk management courses, pursuant to rule. 1/
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a final order finding Respondent guilty of Count I of the Administrative Complaint by violation of Section 458.331(1)(x) F.S. and not guilty of Count II of the Administrative Complaint, imposing a $5,000 penalty, and suspending Respondent's license until such time as he has paid the penalty and proved to the satisfaction of the Board that he has completed an additional approved 35 CME hours and 5 risk management CME hours, such hours to be in addition to any hours previously earned or required by rule. DONE and ENTERED this 14th day of May, 1991, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 14th day of May, 1991.
