The Issue Whether or not Petitioner's application for certification as an Independent Waiver Support Coordinator should be approved.
Findings Of Fact Respondent is the state agency that implements programs and services for persons who are developmentally disabled. In this capacity, Respondent certifies and enrolls qualified individuals, private businesses, not-for-profit organizations, and units of local government to provide services to developmentally disabled persons under the Developmental Disabilities Program Developmental Services Home and Community- based Services waiver program. In so doing, Respondent must ensure that all federal requirements are met and that the health and welfare of developmentally disabled persons are protected. Respondent has established reasonable academic, training and experience criteria for individuals seeking to be enrolled and certified as Independent Waiver Support Coordinators as a part of the Developmental Disabilities Program Developmental Services Home and Community-based Services waiver program. For example, these minimum qualifications include a bachelor's degree and three years of professional experience in developmental disabilities, special education, or related fields. In addition to the academic, training and experience criteria, Respondent conducts background screening in an attempt to assess the suitability of individuals seeking to be enrolled and certified as Independent Waiver Support Coordinators. Part of the background screening involves a review of the work product, performance appraisals, and achieved outcomes of any applicant who has rendered services to individuals receiving developmental disabilities services. Respondent may deny certification to an applicant if it receives evidence of an adverse history with Respondent or the Agency for Health Care Administration as a result of background screening. Prior to Petitioner's application to be certified as an Independent Waiver Support Coordinator, she was employed by an institutional services provider which provided services to individuals with developmental disabilities; her job with the institutional services provider had essentially the same responsibilities as she would have if she became an Independent Waiver Support Coordinator. Respondent solicited and received an evaluation of Petitioner's work performance with the independent services provider. Petitioner's supervisor indicated that Petitioner's work was not satisfactory and that she would not rehire her. Respondent determined this negative evaluation as evidence of an adverse history sufficient to disqualify Petitioner and deny her certification.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order denying Petitioner's application for certification as an Independent Waiver Support Coordinator. DONE AND ENTERED this 12th day of September, 2002, in Tallahassee, Leon County, Florida. JEFF B. CLARK 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 12th day of September, 2002. COPIES FURNISHED: Joseph K. Birch 34 East Pine Street Orlando, Florida 32802 Chelsea Predue-Washington Post Office Box 1117 Clarcona, Florida 32710-1117 Beryl Thompson-McClary, Esquire Department of Children and Family Services 400 West Robinson Street, Suite S-1106 Orlando, Florida 32801 Paul F. Flounlacker, Jr., Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
The Issue Whether the Department of Children and Family Services (Department) failed to immediately provide Destiny Smith with the developmental services to which she is entitled.
Findings Of Fact For the period July 1, 1998 through June 30, 2003, the Health Care Financing Administration (HCFA), Region IV, of the U.S. Department of Health and Human Services, by agreement with the State of Florida, has agreed to permit the Department to provide services in a home and community-based setting to persons diagnosed with mental retardation or developmental disabilities. This was allowed as an alternative to receiving services in an institutional setting. It is referred to as the Home and Community-Based Services Waiver Program, or less formally, the "waiver" or "waiver program." The waiver provided that in "year three" of the program, 25,945 persons would be served, should the Florida Legislature appropriate sufficient funds to serve that number. If the appropriation is insufficient, then fewer persons will be served. Fiscal year 2000-2001 is "year three." Florida has elected to serve the number of individuals funded by the Florida Legislature, up to the number listed in the waiver agreement with HCFA, in fiscal year 2000-2001. Historically, all individuals eligible for developmental services have not received them because of insufficient funding. The Florida Legislature, when providing funding for this program in 1999, established priorities in the 1999-2000 General Appropriations Act, through the use of proviso language. Priorities for this funding, in order, are as follows: 1) Transitions for those requesting transfers from Intermediate Care Facilities for the Developmentally Disabled (ICF/DD) institutional placements; and 2) Meeting the needs of identified under-served participants in the Home and Community Based Waiver Services after accurately assessing the actual costs of each person's support plan. The Department implemented the 1999 appropriation for fiscal year 1999-2000 by promulgating a spending plan that directed the Department's districts to provide services to 15,984 persons pursuant to the priorities set by the Florida Legislature. The 2000 Florida Legislature appropriated funds to serve an additional 7,377 persons for a total of 23,360. This appropriation contained proviso language which was identical to that found in the 1999 General Appropriations Act. An addition to the proviso, however, stated that, "The Medicaid waiver services mix must be fully met for all eligible participants before funds are transferred to non-Medicaid covered services, with the exception of room and board payments." The Department implemented the 2000 appropriation by promulgating a spending plan that continued the previous year's spending plan. This plan stated that individuals who are new to the system after July 1, 1999, would only be served after those on the original waiting list are served, unless they have been determined to be in crisis pursuant to a crisis assessment tool. Petitioner applied for the general revenue individual and family support program. This program is in the category of "non-Medicaid covered services." The Department determined that Petitioner was eligible for developmental services on July 11, 2000. However, the Department further determined that Petitioner did not presently qualify for funds appropriated for fiscal year 2000-2001 because she became eligible after July 1, 1999, and because the program she sought was one which the Florida Legislature determined should be funded at the previous year's level. The crisis assessment tool is used to identify individuals who are in crisis situations. A crisis situation occurs when there is a court order mandating care; when there has been a determination that an individual is dangerous to himself, herself, or others; where there is abuse or neglect; where the person is homeless; when the person's caregiver can no longer provide for the person; or in other situations where there is a need to ensure the individual's safety and security. Petitioner does not meet any of the criteria on the crisis identification tool. As a result, she is not eligible for immediate service. At the time of the hearing there were individuals who were on the waiting list who were determined to be eligible prior to July 1, 1999 who have not yet been served. Only after those individuals are served can the persons eligible after July 1, 1999, be served. Petitioner may ultimately be provided developmental services, but this cannot occur until funds are available to the Department for that purpose.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Department enter a final order finding that the Petitioner is not entitled to receive developmental services until the Department determines that funds are available for that purpose. DONE AND ENTERED this 8th day of January, 2001, in Tallahassee, Leon County, Florida. HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of January, 2001. COPIES FURNISHED: Lucy Goddard, Esquire Department of Children and Family Services Post Office Box 390, Mail Stop 3 Gainesville, Florida 32602 Destiny Smith 27619 25th Place Branford, Florida 32008 Virginia A. Daire, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
The Issue Whether the Respondent has sufficient general revenue funds to provide the Petitioner with services under the Respondent's Developmental Disabilities Program.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department is the state agency charged with administering and determining eligibility for services to developmentally disabled individuals pursuant to Florida's Developmental Disabilities Prevention and Community Services Act, Chapter 393, Florida Statutes. Section 393.065, Florida Statutes. The program developed by the Department is known as the Developmental Disabilities Program. Jake is a resident of Miami, Florida, and is four and one-half years of age, having been born October 6, 1997. On October 24, 2000, Jake's parents submitted on his behalf an application requesting that the Department enroll him in its Developmental Disabilities Program and provide him with physical, occupational, and speech therapy services as a developmentally disabled individual.2 The parties stipulated to the following facts: Jake has a rare genetic disorder called "Williams Syndrome," which causes significant developmental delays. Jake also has a significant hearing impairment, which exasperates his developmental delays. Among other developmental delays, Jake cannot walk on his own, is unable to talk, and is unable to respond to verbal requests. Jake requires regular and frequent physical, occupational, and speech therapies, and Jake is eligible to receive these services under the Department's Developmental Disabilities Program. A social worker employed by the Department advised Jake's mother on October 25, 2000, that Jake was eligible for the requested services. The social worker developed a family support plan, which Jake's mother signed on January 12, 2001. Pursuant to the Department's policies, the Department considered Jake a "client" of the Department and eligible for services on the date the family support plan was signed. According to the Department's witness, the funding category at issue in this case is state general revenue funds appropriated by the Florida Legislature and not federal funds. Upon receiving Jake's application for services under the Department's Developmental Disabilities Program, the Department reviewed the request and implemented a prioritization schedule set forth in a Department memorandum dated June 1, 2001. The subject matter of the memorandum is identified as "State Fiscal Year 2001-2002 Spending Plan Implementation Instructions ("Spending Plan")."3 The Spending Plan was developed in accordance with the following directive of the Legislature, which is found in the Conference Report on SB 2000: General Appropriations for 2001-02, May 1, 2001 ("Conference Report"): Funds in Specific Appropriations 374 and 377 are intended to provide Home and Community- Based Services Waiver Services in accordance with a spending plan developed by the Department of Children and Family Services and submitted to the Executive Office of the Governor for approval by November 1, 2001. Such plan shall include a financially feasible timeframe for providing services to persons who are on waiting lists for fiscal years 1999-2000 and 2000-2001 and those eligible persons who apply for services during fiscal year 2001-2002. Such persons shall be enrolled in the waiver in accordance with the department's policy for serving persons on the waiting list. The Spending Plan relates to the distribution of funds to persons served through the Home and Community-Based Waiver Services program ("Waiver Program"), which is co-funded by the federal government as part of the Medicaid program.4 The Spending Plan establishes five "priority" categories for providing services through the Waiver Program: Persons who were clients as of July 1, 1999; members of the class in the case of Cramer v. Bush; persons not on the original waiting list who are in crisis (an estimated ten new clients monthly, statewide); persons discharged from the Mentally Retarded Defendant Program; and "[p]ersons who have become clients since July 1, 1999, in date order (new waiting list) -- projected to be approximately 6,284 persons remaining to be phased in between March 2002 and June 2002, subject to vacancies on the Waiver and available funding." The Spending Plan further provides that "[i]n order to serve the estimated additional 6,774 individuals who are projected to want and need Waiver services during FY 01-02, enrollment on the Waiver will be phased in as described above." According to the procedure specified in the Spending Plan, a waiting list for Waiver Program services is maintained by the Department's Central Office of the Developmental Disabilities Program, and that office advises the various districts when they may begin providing services to a person on the list. According to the Spending Plan, services are to be provided to individuals on the waiting list "subject to vacancies on the Waiver and available funding." Upon review of his application for services, the Department classified Jake in the fifth category of the Spending Plan as a person who become a client after July 1, 1999, and his name was placed on the waiting list to receive services provided through Waiver Program funding. Although no evidence was presented on this point, it is apparent from the text of the Spending Plan that, in addition to the Waiver Program funding for services to the developmentally disabled, there is a second source of funding for services to these individuals, Individual and Family Supports ("IFS") funding.5 The Department did not provide any indication in its denial letter and it did not present any evidence at the final hearing to establish that the "general revenue funds" at issue were IFS funds. It has been necessary to infer from the record that such is the case.6 Although the Department presented no evidence with respect to Jake's eligibility for services from IFS funds or with respect to the availability of IFS funds to provide Jake with the services for which he is eligible, the Spending Plan provides: "The use of non-Waiver funds (Individual and Family Supports (IFS) budget category) to fund services for additional persons who are awaiting enrollment on the Waiver is prohibited." The only possible inference from the evidence presented by the Department and from the record as a whole is that, notwithstanding the reasons stated in the Department's denial letter in this case, Jake was denied services from IFS funds because he was placed on the Medicaid Waiver Program waiting list.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a final order finding that Jake Cheskin shall remain on the waiting list for Home and Community-Based Waiver Services under the Developmental Disabilities Program and ordering that Jake Cheskin shall be provided with the physical, occupational, and speech therapy services for which he is eligible as soon as a vacancy occurs or additional funding is available under the Department's Developmental Disabilities Program.8 DONE AND ENTERED this 31st day of July, 2002, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 31st day of July, 2002.
The Issue The issue in this case is who is entitled to payment of remaining retirement benefits due to James E. Brandon, deceased.
Findings Of Fact James E. Brandon was employed by the Hillsborough County Parks and Recreation Department and was a participant in the Florida Retirement System (FRS). Mr. Brandon had a long standing relationship with Dennis A. Barga. In February 1995, James E. Brandon applied for FRS disability benefits due to a medical condition. On the application for disability benefits, James E. Brandon designated Dennis A. Barga as his primary beneficiary. The application for disability benefits was approved in June 1995, with an effective retirement date of March 1, 1995. James E. Brandon elected to receive benefits under "Option 2" of the FRS, which provides for a lifetime benefit to the covered employee. Option 2 also provides that, if the covered employee does not survive for the ten years following retirement, payment is made to a designated beneficiary for the remainder of the ten year period. James E. Brandon died on August 28, 1995, of the condition which resulted in his disability. James E. Brandon did not personally receive any of his disability benefits. By letter dated September 29, 1995, the Division notified Mr. Barga that he was entitled to receive the remaining benefit payments for the ten year period. At the end of September, the Division sent two checks to the home of James E. Brandon. One check covered the initial benefits period from March 1995 through August 1995. The second check was for the September 1995 benefit. The checks were not returned to the Division and apparently were cashed or deposited. On October 10, 1995, the Division was notified by William Brandon that his brother, James E. Brandon, had completed a form amending his designation of beneficiary and that the form had been filed with the Division. The Division searched its files and located a form, FRS M-10, which was apparently filed on July 25, 1995, by James E. Brandon, and which amends his prior designation to identify sequential beneficiaries. The amended beneficiaries, in order, are William W. Brandon, III, Daniel A. Brandon, and Victoria Weaver Stevens. The Brandons are family members of the deceased. Ms. Stevens is a long-time family friend and was also employed by the Hillsborough County Parks and Recreation Department. FRS Form M-10 is the form adopted by the Division for use by a non-retired FRS participant in designating a beneficiary. Form M-10 does not require execution before a notary public. FRS Form FST-12 is the form adopted by the Division for use by a retired participant in designating a beneficiary. Form FST-12 requires execution before a notary public. The amendment of the beneficiaries should have been executed on a Form FST-12. The Form M-10, which was filed on July 25, 1995, was provided to James E. Brandon by the human resources office of the Hillsborough County Parks and Recreation Department. The form was obtained by Victoria Weaver Stevens apparently at the request of the deceased. The filing of the improper form was through no fault of James E. Brandon. The Petitioner suggests that the signature on the Form M-10 is a forgery. There is no credible evidence to support the assertion. The evidence establishes that the deceased sometimes included his middle initial in his signature, and other times did not. The Petitioner suggests that during the last weeks of the deceased's life, he was overmedicated, was often unaware of his surroundings, and was likely manipulated into changing the designated beneficiaries. There is no credible evidence that James E. Brandon was mentally incapacitated and unable to understand the import of his decisions at the time the amendment was filed with the Division.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Division of Retirement enter a Final Order dismissing the Petition of Dennis A. Barga. DONE AND ORDERED this 31st day of December, 1997, in Tallahassee, Leon County, Florida. _ WILLIAM F. QUATTLEBAUM 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 Filed with the Clerk of the Division of Administrative Hearings this 31st day of December, 1997. COPIES FURNISHED: A. J. McMullian, III, Director Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Paul A. Rowell, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950 David T. Weisbrod, Esquire 601 North Franklin Street Tampa, Florida 33602 Stanley N. Danek, Esquire Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Thomas Frost, Esquire 7901 Fourth Street North Suite 315 St. Petersburg, Florida 33702
The Issue The issue for determination is whether Petitioner was subjected to discrimination in the work environment by the Department of Corrections (DOC) due to Petitioner's race, sex, and handicap in violation of Section 760.10(1)(a), Florida Statutes.
Findings Of Fact Petitioner, Thaise Hampton, is a female African- American. On January 20, 1995, Hampton was hired by the Correctional Educational School Authority (CESA) to work as a teacher at DOC's Apalachee Correctional Institution (ACI). Hampton had not worked before that time. During the 1995 legislative session, CESA was abolished by the State of Florida Legislature. CESA’s education and job training program functions were transferred to DOC along with most positions, inclusive of Hampton’s. Hampton was placed on probationary status as a DOC employee, effective July 1, 1996. On April 12, 1996, Hampton had an on-the-job injury when she slipped and fell in the cafeteria of the institution. The State of Florida's Division of Risk Management (Risk Management) administered the workers’ compensation case for the State of Florida. Hampton was treated by a physician and excused from work because of the injury. Hampton was evaluated by Michael W. Reed, M.D., an authorized treating physician for Hampton’s work-related injury, on July 15, 1996. By correspondence dated July 22, 1996, Dr. Reed reported his evaluation of Hampton. Dr. Reed found that Hampton suffered from lumbar degenerative disc disease. He recommended physical therapy and light duty work restrictions on lifting objects greater than 20 pounds. On August 29, 1996, DOC received further correspondence forwarded by Risk Management from Dr. Reed. In that correspondence dated August 28, 1996, Dr. Reed stated that Hampton could return to work full duty and that she had reached Maximum Medical Improvement, with a 0 percent permanent impairment rating. He did not indicate that there were any work restrictions. Hampton reported to work on September 3, 1996. At that time, she was utilizing a walker to ambulate around the compound. Joseph Thompson, the Warden at ACI, and the hiring/firing authority over Hampton at that time, expressed security concerns that Hampton was utilizing a walker. He asked the personnel manager, Derida McMillian, to inquire into the situation. As a result, McMillian contacted Paul Bohac, Hampton’s supervisor, and requested that both he and Hampton come to her office. She then informed Hampton that she was not authorized to utilize a walker unless a physician had prescribed one for her use. She told Hampton that she was in receipt of a letter from Dr. Reed that indicated she could return to work on regular duty with no restrictions and that a walker represents such a restriction. McMillian then told Hampton that she could not use a walker at work until she produced a medical report indicating a need for same. She also told Hampton that a physician’s statement would be needed or her leave would not be authorized. Hampton stated that she understood and would provide the appropriate medical reports on September 5, 1996. McMillian relayed Hampton’s statements that she would provide documentation by September 5, 1996, to Margaret Forehand, a personnel technician who was a liaison with the Division of Risk Management at that time. Because no such documentation was received by September 5, 1996, Forehand called Hampton at home on September 9, 1996. Hampton advised her that she would get her attorney to obtain a doctor’s statement. On September 10, 1996, Hampton called Forehand and said that her lawyer would obtain a doctor’s statement and send it to DOC. On September 17, 1996, Hampton contacted Forehand with questions regarding her paycheck received on September 13, 1996. Forehand advised that DOC had not received the physician’s statement that was to have been provided on September 5, 1996. Forehand reiterated at that time that Hampton needed to provide a doctor’s note as to her status. Hampton told Forehand that her attorney would be taking care of the matter. On September 18, 1996, Forehand spoke with Alice Taylor at the Division of Risk Management and was advised that Risk Management had received a letter from a Dr. Ayala regarding Hampton’s condition. Taylor told Forehand that Ayala's letter did not change anything--Hampton had not been removed from work or prescribed a walker. Neither McMillian nor Forehand was aware of any prescription for a walker by a Dr. Randall dated June 3, 1996, until March 11, 1997, when they were shown the prescription. Additionally, Forehand had no record indicating that Dr. Randall was approved by the Division of Risk Management as a treating physician. On September 19, 1996, Hampton appeared at the personnel office. She did not have a prescription for a walker at that time. Thus, Hampton was considered to be on unauthorized leave status since September 5, 1996. Warden Thompson terminated Hampton’s employment on September 19, 2001, for excessive unauthorized absences. Hampton alleged that several white male employees and an inmate were allowed accommodations: Mr. Ammons; Paul Bohac; and inmate John Peavy. Warden Thompson testified that he approved a request for Mr. Ammons to use a wheelchair after receiving a request from the CESA Personnel Office. He was informed that Mr. Ammons would be retiring in 30 days. Mr. Ammons was not a DOC employee. Warden Thompson stated that he was not aware that Paul Bohac had worn a back brace into the office or that he had brought an ergonomic chair into the office. If he had known that he was using special medical equipment, he would have requested a prescription for the devices. Paul Bohac was not utilizing a walker. Warden Thompson was not aware that inmate John Peavy was issued a walking stick; however, inmates were allowed to utilize assistive walking devices if the medical department authorized it. Warden Thompson approved Hampton’s termination because of her unauthorized absences. She refused to work at full duty or provide a physician’s statement documenting any work restrictions.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered dismissing the Petition for Relief. DONE AND ENTERED this 24th day of April, 2002, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 24th day of April, 2002. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway Suite 100 Tallahassee, Florida 32301 Marva A. Davis, Esquire 121 South Madison Street Post Office Box 551 Quincy, Florida 32353-0551 Gary L. Grant, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway Suite 100 Tallahassee, Florida 32301
The Issue The issue for determination is whether, as alleged, Respondent discriminated against Petitioner based on her sex, thereby violating Section 760.10, Florida Statutes. If that violation occurred, the remaining issue is what relief is appropriate. Petitioner contends that she should have received disability benefits during her pregnancy from July 21, 1987 through September 10, 1987 and that Respondent's refusal to pay constituted discrimination.
Findings Of Fact In their joint prehearing statement, filed at hearing, the parties stipulated to the following: During the calendar year 1987 the Petitioner was employed by the Respondent at its Melbourne, Florida, plant. During 1987 the Respondent provided weekly income benefits for non-occupational disability pursuant to the provisions of a document entitled "Addendum to Weekly Income Benefits for Non-Work Related to Disability." (Exhibit R-4) The Petitioner was off from work for the Respondent from April 21, 1987 through October 26, 1987. The Petitioner delivered a child on September 10, 1987. The Petitioner received weekly income benefits of $189.33 for the period from April 21, 1987 through July 21, 1987 and from September 10, 1987 through October 23, 1987. On Monday October 26, 1987, Petitioner returned to work with Respondent at her regular position and rate of pay. Respondent (Acopian) is a manufacturer of electronic components with a plant in Melbourne, Florida. Commencing in October 1979, and at all times relevant, Petitioner was employed by Acopian as an assembly worker. Her assigned duties required her to assemble and solder personal computer boards, a task performed primarily in a seated position and requiring little physical exertion. When she was hired, Ms. Faith was instructed regarding the company's benefit plan by Evan Martin, Vice President for the company. Mr. Martin is responsible for overall operations of the plant and for personnel matters. Ms. Faith filed the requisite forms and received disability benefits under the company's plan between November 9, 1981 and January 18, 1982, when she was unable to perform her duties due to pregnancy and childbirth. Sometime prior to April 20, 1987, Ms. Faith learned that she was pregnant again. Her treating physician was Dr. Eugene F. Wawrzyniak, an obstetrician with offices in Palm Bay, Florida. On April 20, 1987, Ms. Faith was given a note by her physician stating that she should be excused from work until the estimated date of her delivery, October 8, 1987. Ms. Faith's mother took the note to Acopian, delivering it to Doris Hayden, Evan Martin's Administrative Assistant, and the person responsible for maintaining the personnel files and disability claims. Ms. Faith was given the claim forms and completed portions of the form on May 10, 1987, indicating that her period of disability was to commence April 22, 1987. She also indicated on the form that her sickness or injury arose out of the course of her employment. Because of that, Ms. Hayden submitted the form to the state worker's compensation agency. She understood that the agency required forms be sent anytime an employee claims a work- related illness or injury. On May 18, 1987, Ms. Faith received notice of denial of the worker's compensation claim based on no injury arising out of employment. On June 15, 1987, Acopian received another note from Dr. Wawrzniak indicating that Ms. Faith must remain home due to threat of a miscarriage. Dr. Wawrzniak also completed the physician's portion of the disability claim form on June 15, 1987, indicating that Ms. Faith would be disabled from April 21 through six weeks post-partum. The condition he listed was "pregnancy with threatened spontaneous abortion." (Respondent's Exhibit 7.) Ms. Faith completed her portion of the form on June 19, 1987, and this time did not indicate the condition arose out of her employment. Evan Martin routinely reviews all claims for non-work related benefits. The company is self-insured as to that benefit plan. Mr. Martin had never seen a case at Acopian where a physician stated so early in pregnancy that the patient would be disabled for virtually the entire term of pregnancy. Because he was confused as to Dr. Wawrzniak's statement, he sent the doctor a letter, dated July 17, 1987, requesting medical facts in support of his diagnosis. Although Dr. Wawrzniak later testified, at his deposition on December 1, 1988, that his clinical impression in 1987 was that Petitioner could not have returned to her duties at Respondent after July 18, 1987, his response to Mr. Martin dated July 18, 1987 was not consistent with that conclusion. Specifically, he indicated in his July 18, 1987 correspondence that: Gerda Faith is a 27 year old white female, G- 3, P-1, who had a natural delivery in 1981 with a miscarriage of June 1986. She was seen in this pregnancy on 2/13/87 initial visit with a positive pregnancy test. She subsequently followed in the next two months with post coital bleeding and lower abdominal cramping. This would suspect [sic] a threatened abortion or miscarriage at this time and [sic] was told to rest and work would have to be curtailed. Otherwise, presently in the pregnancy on 7/28/87 she was examined fetal size [sic] approximately 30 weeks gestation which is consistent with her due date of 10/8/87. She is doing well and there is no sign of threatened [sic] miscarriage at this point in time, otherwise, there is no vaginal bleeding as in the first trimester of pregnancy and the patient is doing well. (Emphasis added) (Respondent's Exhibit 10.) Insofar as there appeared to be inconsistencies between this latest report and Dr. Wawrzyniak's statements as to the period of anticipated disability, and no supporting medical documentation was provided, Mr. Martin again requested medical evidence from the physician on August 31, 1987. Mr. Martin's August 31, 1987 correspondence stated in pertinent part that: It appears to us while Gerda had difficulties during the first trimester of her [sic] pregnancy, thereafter she could have returned to work until some time in late September, 1987. This is based upon your statement that she is now doing well, and there is no sign of threatened miscarriage at this point in time. However, this appears to be inconsistent with your statement on Gerda's health insurance claim form that she would be continuously and totally disabled and unable to work from April 21, 1987 through six weeks after the birth. (Emphasis supplied) We would appreciate it if you could provide the medical evidence upon which you relied in stating that she was continuously disabled and unable to work for the entire period of time rather than after the first trimester had passed and the threat of miscarriage had subsided. This information is necessary so that we may evaluate further whether to provide disability payments for the entire period claimed. (Respondent's Exhibit 11.) By letter dated September 1, 1987, Dr. Wawrzyniak responded as follows: In regards to your most recent letter on August 31, 1987 in relation to Gerda Faith, my last letter stated that she was doing better after 30 week gestation in which was written on 7/18/87. I felt that at this point and [sic] time there was no sign of threatened miscarriage and that she did not have any complaints regarding these symptoms of second or third trimester bleeding. Presently, she is doing well and I feel that under the circumstances she has approximately 5 weeks to go in her pregnancy and her due date is October that she can go back to work. She is physically fit and is out of danger in regards to her pregnancy at this stage. Mind you that this may change dramatically from week to week and if I so chose [sic] to have her out of work I shall write you a personal letter. (Emphasis supplied) (Respondent's Exhibit 12.) On September 9, 1987, Ms. Faith went into labor prematurely and delivered her child on September 10, 1987. It is undisputed that she was out of work from April 21, 1987, through October 23, 1987. She was initially paid benefits for the post-partum period and was later paid for the period April 21, 1987 through July 21, 1987, when Acopian was told by her doctor that there was no sign of threatened miscarriage. She claims she is owed benefits between July 21, 1987 and her delivery. Ms. Faith acknowledges that under Acopian's plan an employee is not automatically entitled to disability benefits simply because she is pregnant. The non-work related disability benefits under Acopian's plan are available to male and female employees alike for a wide range of medical conditions. Since 1983, payments have been made to at least seventeen women, including Ms. Faith, for pregnancy or pregnancy-related conditions. It is not unusual for Acopian, either through Evan Martin or his assistant, Doris Hayden, to seek clarification in medical documentation for both males and females. In such instances the physician usually cooperates fully.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that Petitioner's Petition for Relief be dismissed. DONE and ENTERED this 19th day of April, 1989, in Tallahassee, Leon County, Florida. MARY CLARK 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 19th day of April, 1989. COPIES FURNISHED: Patrick J. Deese, Esquire Post Office Box 361937 Melbourne, Florida 32936-1037 Edward H. Feege, Esquire Post Office Box 2165 Lehigh Valley, PA 18001-2165 Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Dana Baird, Esquire General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925
The Issue The Department of Health and Rehabilitative Services issued a Request For Proposals for a computer system for the Miami branch of the Department's Office of disability Determinations. Wang Laboratories was found by the Department's evaluation committee to have submitted the best proposal of the three received. IBM's proposal was ranked in second place by the committee. Subsequent to the receipt and evaluation of proposals, the Department withdrew the RFP," declared that an emergency existed, and proceeded on an expedited basis to purchase IBM equipment. The issue in this case is whether, during the course of these events, the Department acted according to the requirements of law.
Findings Of Fact The Department of Health and Rehabilitative Services ("Department") is responsible for the administration and operation of the Office of Disability Determinations ("ODD") which determines eligibility for federal Social disability benefits. Referrals to the ODD are made by the Social Security Administration ("SSA") offices in Florida. The ODD obtains applicant information, assists in developing disability benefit claims, and communicates the eligibility decision to the SSA. The SSA benefits are directly paid by the SSA to the recipient. The ODD operation is federally funded. During the most recent fiscal year for which data is available, the ODD handled approximately 114,000 referrals from the ESA and received approximately $27 million in federal funds. The ODD also determines eligibility for Florida's "medically needy" program, which is partially federally funded. Referrals for the medically needy program come from other Department assistance programs. During the most recent fiscal year for which data is available, the ODD handled, approximately 2,600 medically needy determinations. According to the budgeting estimates, the Department projects up to 2,000 medically needy determinations will be required during the next fiscal year, approximately one-third of which will be processed in the Miami ODD. In order to increase the productivity of state ODD operations, the SSA provides funds for the acquisition of data processing equipment to automate the data collection and disability determination process. The allocation of such funds is based upon proposals, identified as "advance planning documents", submitted to the SSA by individual states. In June or July of 1988, the Department submitted, to the SSA, an advance planning document proposing to acquire data processing equipment for the seven Florida ODD locations at a cost of almost $1.7 million. The Department's plan provided that, if funds were not available to automate all ODD locations at the same time, the Miami office be the initial location to be equipped. According to Russell Rodgers, Chief of Administrative Services for the ODD, the Miami location was identified primarily because of case load, and because the Miami employees were already utilizing a computer system. The Department's advance planning document was prepared and submitted by ODD personnel. The Department's Office of Management Systems, responsible for the agency's data processing system, had previously completed a needs analysis for the ODD. The Management Systems analysis was performed through a planning methodology identified as "STRADIS" (an acronym for "structured Analysis, Design and Implementation of Information Systems") which appears to provide a level of planning in equipment acquisitions. At some point during preparation of tee advance planning document submitted to the SSA, Mr. Rodgers spoke with a Wang Laboratories ("Wang") representative while collecting information. Wang markets a computer system configured for disability determination offices. The Wang disability determination system is used in 22 or 23 other states. In talking with Mr. Rodgers, the Wang representative suggested acquiring a new Wang system through "sole resource" purchasing rules, which permit the avoidance of competitive bidding procedures. However, Mr. Rodgers and the ODD preferred utilizing the competitive bidding process, and declined to purchase the Wang equipment under the "sole source" provisions. The advance planning document was not reviewed by Management Systems personnel. Although testimony was elicited suggesting that the ODD proposal was erroneously not submitted for review to the Department's Management Systems office, the evidence shows that, at the time the document was prepared and submitted to the SSA in 1988, such review was not specifically required. The Department's Management Systems Office is responsible for the agency's data processing information system operations. Viann Hardy is Deputy Secretary for Management Systems, and is responsible for the Department's automated information systems. Ms. Hardy reports to the agency head, Secretary Gregory L. Coler. Ms. Hardy is authorized to act on behalf of the Secretary on information system issues. Ms. Hardy supervises a staff of approximately 300 employees. During the relevant period of time, Ms. Hardy was involved in implementation of the Department's data processing plans, in supervising the consolidation of Management Systems' offices, and in the relocation of a substantial number of her employees to the newly consolidated site. Ms. Hardy had little personal involvement in the RFP prior to September 11, 1989, the date upon which notice of the recommended award was to be made. Ms. Hardy relied upon Marilyn Van Dusseldorp, an Assistant responsible for development and operation of the Department's equipment and software, for information related to the RFP. Ms. Van Dusseldorp personally reviewed the RFP drafts, provided information to Ms. Hardy, and suggested additions and amendments to the document. In April, 1989, the Florida ODD was notified by the SSA that the proposal had been approved and that $403,724 in federal funds would "likely" become available towards the close of the relevant fiscal year for acquisition of data processing equipment for the Miami ODD office. The identified funding level for automating the Miami office was based upon the ODD's cost projection for that location. The SSA did not have funds sufficient to automate the remaining offices at that time. The SSA notification, dated April 26, 1989, suggested that the ODD proceed "...if permissible under State procedures . . . to initiate action to contract for the system so that you may obligate the funds as soon as they are authorized as there may be little time between when the funds become available and the end of the fiscal year." The notification also states "[t]o minimize costs, the hardware and software you purchase should be able to utilize the PC's which the DDS already owns if replacing them would increase the overall costs." Following receipt of SSA authorization, the ODD staff initiated development of a formal "Request For Proposals" ("RFP") document for the acquisition of the planned data processing system. The ODD employees with primary responsibility for preparing the RFP had limited experience with the RFP process. Wilbert Hobbs, the ODD employee responsible for preparation of the RFP, had not done so previously. It had been several years since Mr. Rodgers, Hobbs' supervisor, had been involved in such an effort. In preparing the RFP, ODD personnel sought information from the Department's Management System's office. Three or four drafts of the RFP were produced by ODD. Management Systems personnel reviewed the drafts and suggested substantive modifications to the document, some of which were incorporated. By memo to Secretary Coler, dated June 28, 1989, Ms. Hardy recommended that the RFP be submitted to the Information Technology Resources Procurement Advisory Council ("ITRPAC") for review and that the acquisition proceed as scheduled. Secretary Coler concurred with Ms. Hardy's recommendation. Prior to June 28, Ms. Hardy had not reviewed the RFP. In the June 28 memo, Ms. Hardy, note the expedited time frame allotted for publication of the RFP, review of proposals and award of contract. She states that the advance planning document was submitted by ODD to the SSA, "without Management Systems coordination". She further notes that the proposed system is not planned to interface with other Department systems, because the ODD "indicates that federal requirements preclude access" by other Departmental programs. However, she also states that the requirement that the ODD system interface with the SSA's National Disability Determination System ("NDDS") computer (an IBM system) "should" provide that the ODD can be connected to the Department's "FLORIDA" system (also an IBM system). The FLORIDA system will provide integrated data files for the Department's economic assistance programs, and will determine eligibility, calculate benefits, and assist case workers in delivering available services. The FLORIDA system constitutes an expenditure of approximately $104 million, of which 82% are federal funds. Also on June 28, 1989, Ms. Hardy contacted Carol Pettijohn of the Information Resources Council ("IRC") and informed Ms. Pettijohn that the RFP was being forwarded for review. Ms. Pettijohn is an Information Resource Management consultant at the IRC. The IRC reviews planned information resource acquisitions and provides information to agencies as to whether the proposed acquisition meets statutory requirements and is consistent with state policy. The IRC also provides information to the ITRPAC. The ITRPAC, a Cabinet function, must review and approve agency computer equipment acquisitions which exceed a specified cost threshold. Ms. Hardy advised Ms. Pettijohn that the RFP had not been completely reviewed by her office, but that due to alleged time constraints, it was being forwarded in the draft form. It was subsequently determined that the acquisition in this case did not meet the threshold above which ITRPAC approval was required. However, Ms. Pettijohn did review the RFP and provided her expertise to the Management Systems office. During the preparation of the RFP, employees of Management Systems and Ms. Pettijohn considered the specific requirements of the ODD system as stated in the RFP document. Issues considered by the drafters included the advisability of limiting the RFP to the Miami ODD office when the remaining ODD offices would eventually be interconnected, the lack of required connection to the Department's FLORIDA system, and, whether adherence to the Department's "standards" for computer equipment purchases should be required. By letter of June 30, 1989, the SSA, advised the Department that the $403,724 requested to automate the Miami office was officially available and that the Department should proceed to ``obligate'' the funds. On July 28, 1989, the RFP ("RFP-89-RR-1") was issued. The RFP sought a data processing system far the Miami ODD office which would combine data collection, case management, statistical and fiscal operations. The system would be required to interface with the SSA/NDDS computer. The RFP aid not require vendors to specify expansion costs, connectivity to the FLORIDA system, or adherence to the Department's computer "standards". The RFP permitted replacement of existing ODD equipment. The RFP provided that the Department could "reject any and all proposals in the best interest of the Department." On August 8, 1989, Addendum #1 to the RFP was released. A bidder's conference was held on August 14, 1989. On August 16, 1989, Addendum #2 was released. The deadline for submissions gassed on August 30, 1989, with proposals being received from three vendors, Wang, International Business Machines ("IBM"), and Unisys. The Unisys proposal is not at issue in this proceeding The Wang proposal included the Wang VS-5000 computer and the Case Management Disability Determinations System software by the Levy software company. The1 IBM proposal included the IBM AS-400 computer and the Disability Determination System software by the Versa software company. The Department's six-member e1valuation committee included employees of both the ODD and Management Systems. The proposals were reviewed in accordance with procedures developed by personnel who had prepared the RFP. Although the Department asserts that the Wang proposal was nonresponsive to the RFP, the greater weight of the evidence indicates that at least the Wang and IBM proposals were responsive and that the committee properly evaluated the proposals. The RFP required proposals be submitted in two packages; a "technical" package and a "cost" package. On August 30, 1989, the committee opened and began to review the technical submissions received. Following the technical evaluation of the proposals, the evaluation team ranked the Wang proposal in first place and the IBM proposal in second place. The Wang proposal was judged superior in all technical categories. On September 5, 1989, the committee opened and reviewed the cost proposals received. Wang's proposed price was $225,393.58. IBM's proposed price was $399,924. Pursuant to Chapter 44-800, Florida Administrative Code, the RFP required that the top two vendors demonstrate the communications ability by the transfer of formatted documents to and from the Department's mainframe computer (a Burroughs system). On September 5, 1989, the evaluation committee notified the top two vendors, Wang and IBM, to begin the communications demonstration. The purpose of the requirement, according to the rule, is to establish, "an effective procedure for demonstrating minimal compatibility of all new information resource hardware prior to acquisition." The results of the test are certified by the agency's information resource manager as having met the administrative requirement. The deadline for completion of the test was 2:00 p.m. on September 11, 1989, the date upon which the recommended award of the contract was to be posted.. On September 8, 1989, Mr. Rodgers learned from Peter Digre, another Deputy Secretary for the Department, of concern related to the nature of Management Systems' involvement in the RFP drafting and review process. Mr. Rodgers provided an explanation of the drafting and review process, and identified the Management Systems' participation. Mr. Rodgers also explained the ODD position on various issues addressed during the preparation of the RFP. During this approximate period of time, Ms. Hardy traveled to Miami, where she was hosting a conference of social workers scheduled for September 11- 13, 1989. Although the evidence is unclear as to the purpose of the conference, Ms. Van Dusseldorp, other Department employees, and IBM representatives, were present in Miami for the meeting. In Tallahassee, both Wang and IBM were involved in completing the communications demonstration by the September 11 deadline. Wang had no apparent difficulty in meeting the requirement. However, IBM was apparently unable to perform the required test without connecting an IBM personal computer between the proposed IBM system and the Department's mainframe. IBM's use of the personal computer as described was highly unusual because such was not part of the IBM proposal. The Department had not previously certified a like demonstration as having met the administrative requirement. Joseph Spiccia, the Department official in charge of the office responsible for conducting the certification tests, was at the Miami conference. He was aware of IBM's difficulty in completing the formatted file transfer test. On several occasions, he discussed the matter with his employees who were actually present at the test site in Tallahassee. He also discussed the situation with Ms. Hardy, and with an IBM representative in Miami for the conference. Failure to complete the communications test in an acceptable manner would have resulted in IBM's disqualification. Although no vendor had previously been certified under similar circumstances, Mr. Spiccia determined that the use of the personal computer in the communications test was acceptable. Ms. Hardy agreed, and on September 11, as the Department's information resource manager, signed the certification documents indicating that IBM met the communication requirement. On September 11, 1989, Ms. Hardy and Ms. Van Dusseldorp, both in Miami, discussed the RFP situation and the recommended award to Wang. September 11 was the day scheduled for posting of the recommended award. Ms. Hardy instructed Ms. Van Dusseldorp to delay posting the notice of recommended award. In discussing the matter with Ms. Van Dusseldorp, Ms. Hardy expressed concern about Wang's financial condition, apparently in response to several newspaper articles Ms. Hardy had read, indicating that financial problems had arisen. The RFP had not required submission of corporate financial information. During the conversation with Ms. Van Dusseldorp, Ms. Hardy expressed interest in ownership of the software source code (basic computer instructions). Source code ownership would permit the Department's computer support staff to provide modifications and service to software if such service were unavailable from a vendor. The RFP had not required ownership of the software source code be provided to the Department. Source code had not been a consideration during the development of the RFP. During the conversation with Ms. Van Dusseldorp, Ms. Hardy also expressed concern related to the RFP'S lack of required integration with the FLORIDA system and adherence to the Department's "standards" for computer equipment. Ms. Hardy directed Ms. Van Dusseldorp to gather information, including additional references on Wang. Ms. Van Dusseldorp did so immediately. Ms. Hardy also discussed her concerns with Ms. Pettijohn of the IRC. On September 11, 1989, Ms. Van Dusseldorp requested information from an IBM representative attending the Miami conference. In response, she quickly received an IBM sales memorandum headed, "Are you prepared to rise your DDS operations with a vendor who is going down the tubes?" The IBM document addresses site expansion, source code availability and connectivity. According to the telecopier date on the copy in evidence, the document was apparently prepared as early as September 8 (the date of Mr. Digre's meeting with Mr. Rodgers, and prior to Ms. Hardy's discussion with Ms. Van Dusseldorp). After Ms. Van Dusseldorp expressed surprise at the heading, the IBM representative retrieved the document add tore off the top of the page containing the heading. On September 11, 1989, Ms. Van Dusseldorp contacted one of her employees in Tallahassee, and instructed him to draft a document identifying issues related to accepting the Wang proposal and to withdrawing the RFP. She directed him to include STRADIS documentation, source code ownership and integration with the FLORIDA system. Ms. Van Dusseldorp also directed the employee to schedule oral presentations by Wang and IBM. In response to Ms. Van Dusseldorp's directive, a memorandum was drafted and sent to her by telephone facsimile machine. On September 11, 1989, Ms. Van Dusseldorp also contacted another Department employee attending the Miami conference, and directed that she provide information related to connectivity requirements between the ODD system and the FLORIDA system. On the next day, the employee provided handwritten notes in response to Ms. Van Dusseldorp's request. On September 11, 1989, Ms. Van Dusseldorp was contacted by Mr. Rodgers, who requested authorization to post the notice of recommended award as provided in the RFP. Ms. Van Dusseldorp informed Mr. Rodgers that Management Systems intended to "review the process" and that the notice was not to be posted. By letter of that date, Mr. Rodgers notified the vendors that the posting of the recommended award was being delayed to permit Management Systems "an opportunity to review and approve posting of this award." On September 13, 1989, Ms. Hardy returned from Miami. On either September 14 or 15, Ms. Hardy and Ms. Van Dusseldorp met in Tallahassee to discuss the situation. At that time, they reviewed questions which were be addressed at the oral presentations. Also on September 13 or 14, Ms. Van Dusseldorp received additional materials from IBM representatives in response to her Miami request. Included in the materials were copies of newspaper articles reporting Wang's alleged financial difficulties and materials purported to be advice from a brokerage firm related to investments in Wang. During their Miami discussions, Ms. Hardy had directed Ms. Van Dusseldorp to obtain "supplemental references" on Wang. Ms. Van Dusseldorp contacted only two state offices with Wang equipment, the Executive Office of the Governor and the IRC (Ms. Pettijohn's office). Ms. Van Dusseldorp requested information related to the Wang equipment, but did not ascertain whether the equipment was similar to Wang's ODD proposal. Additionally, by September 18 Ms. Van Dusseldorp had obtained information from a Department employee as to the effect that proceeding under "emergency" purchasing provisions would have on potential bid protests. On September 18, Wang and IBM made separate oral presentations. Although the attendees for each presentation were not clearly identified, employees of both the ODD and Management Systems, as well as an official from the SSA, attended the presentations. At the IBM oral presentation, the discussion included the cost of expanding the IBM-proposed system to the remaining ODD sites. IBM stated that expansion costs would be the same for each additional site. IBM's original cost proposal multiplied by the remaining sites exceeded the projected project cost as identified in the Department's advance planning document and therefore exceeded SSA-approved funds. There was also discussion related to whether the memory and storage capability of the IBM proposal was excessive. There may have been some discussion related to source code. At the Wang oral presentation, Wang was questioned on the costs of expanding their system. Wang stated the expansion costs would be the same for each additional site. Expansion costs for the Wang system would be within the approved funding. There were questions related to source code. There were no questions addressing Wang's financial condition. Wang was not advised of the supplemental references contacted by Ms. Van Dusseldorp. Immediately after completion of the oral presentation, the SSA official advised Ms. Hardy that the costs of expanding the IBM system would exceed the amount approved by the SSA. Ms. Hardy contacted the IBM representatives and arranged a meeting for the following morning, September 19. On September 18, 1989, presumably following the oral presentations, Ms. Hardy discussed the situation with Secretary Coler and advised that she would recommend withdrawal of the RFP. He concurred in her recommendation during the September 18 conversation. Although the Secretary had verbally concurred, and even though she had the authority to withdraw the RFP without further approval, she sent a memorandum, dated September 19, to Secretary Coler requesting his written concurrence. The memorandum indicates that Secretary Coler initialed the previously verbal concurrence on September 19. Ms. Hardy testified that she received the returned memo on September 28, nine days after the Secretary signed it. In the September 19 memorandum, Ms. Hardy identifies six issues supposedly justifying withdrawal of the RFP. The issues include the failure of the RFP to require "corporate references", to require ownership of the software source code, to address future expansion costs, to "address network analysis/troubleshooting from a sophisticated perspective", to provide for integration with the FLORIDA system, and to require compliance with the Department's hardware and software standards. Ms. Hardy also states that the RFP did not require STRADIS documentation. The RFP did not require "corporate references", apparently meaning financial references. The concern relates only to Wang. There is no evidence that Ms. Hardy had such concerns related to IBM. Much of the information related to Wang's alleged problems came from newspaper articles and from IBM. Wang was not required or permitted to respond to her concern. The RFP did require references related to the specific system sought by the ODD. The vendors provided such references. The evaluation committee contacted the references and factored the references into the evaluation process. The failure of the RFP to require "corporate references" was immaterial. The issue of software source code ownership appears also to be at least partially related to Ms. Hardy's concern about Wang's financial stability. Ms. Hardy believed that the Department's ability to use and modify the source code could be hampered by Wang's alleged problems. Ms. Hardy also stated that source code ownership permitted the department to modify and tailor the software as necessary; however, the greater weight of the evidence indicates that "ownership" of source code is not required to perform such modifications. The RFP required that the Department receive license to use the vendor's proposed software. At oral presentations, questions related to source code were addressed to both IBM and Wang. There is no evidence that the Department would be unable to modify the source code as necessary under the requirements of the RFP. The failure of the RFP to require the "ownership" of software source code be provided to the Department was immaterial. The RFP did not specifically address expansion costs. The ODD personnel drafting the document did not believe it to be necessary to do so, in that funds were available to automate only the Miami office. Nonetheless, the RFP did require that vendors provide specific figures on equipment, service, and software such as to permit acquisition of additional equipment or software. Accordingly, the Department did have ascertained anticipated expansion costs. Further, at both the Wang and the IBM oral presentations, questions were asked and answered related to expansion costs. Both Wang and IBM identified the cost of per site expansion as the same as the single site cost for the Miami office. Ms. Hardy's assertion that the RFP did not provide information related to expansion costs is incorrect. The reference to the RFP's failure to "address network analysis/troubleshooting from a centralized, sophisticated perspective" relates to an IBM product called "Netview", which permits a centralized analysis of computer system malfunctions by a diagnostician at a single, location. Netview is proposed to be eventually installed on the FLORIDA system, but the FLORIDA system itself is not operative at this time and Netview is not installed. The RFP did not address Netview requirements. Testimony indicates that Wang is developing a product to provide compatibility with the Netview tool. At the time of the hearing, the Wang Netview product was not commercially available, but was expected to be marketed in early 1990. Wang was not provided with an opportunity to respond to Ms. Hardy's concern. The failure of the RFP to address network analysis and diagnosis of malfunctions was immaterial. The RFP did not require "integration" with the FLORIDA system. (The term "integration" indicates shared data files, as contrasted with "interface", which indicates that users are able to access information contained in, separate data files.) The RFP required that the proposed system be capable only of communicating with the SSA/NDDS system, an IBM system. The ODD personnel drafting the RFP assumed that alleged federal NDDS case file confidentiality requirements would prohibit "integration" of ODD/SSA files with the FLORIDA system. In September 19 memo, Ms. Hardy states that the requirements of integration have been of recent development resulting from "current FLORIDA needs assessment work sessions." There is no evidence that such "work sessions" occurred. The integration requirements were created in response to a directive from Ms. Van Dusseldorp, by a Department employee attending the Miami conference. Even so, in her June 28 memo to Secretary Coler, she indicates that the RFP's required connection between the ODD system and the NDDS/IBM mainframe computer "should" accommodate eventual connection to the FLORIDA system. At hearing, Ms. Hardy stated that the objective is to have the Department's programs "interface", sodas to permit the computer systems to communicate. There is no evidence indicating that the proposed Wang system would be unable to "interface" with the FLORIDA system. There is no evidence indicating that further integration between the systems is currently proposed, but it is likely that, `if such' was required, it could be achieved. The Wang proposal included the software needed to interface with the IBM system. Wang's own mainframe computer is an IBM computer. The NDDS system with which the ODD system must communicate is an IBM system. Beyond the communications requirements of the RFP, Wang was not provided with an opportunity to address Ms. Hardy's concern. The failure of the RFP to require "total integration with the FLORIDA system" is immaterial. The RFP did not require compliance with the Department's hardware and software "standards". Such "standards" are essentially internal lists of desktop microcomputers and software products which are determined, by the Department's employees responsible for computer operations, to be acceptable, and which are available for purchase at state contract prices. The issue of "standards" was addressed during the drafting of the RFP and the drafters determined it was unnecessary, and would lessen the possibility of receiving competitive proposals. Further, there is evidence that the Department does not establish standards for minicomputers and for terminals, the equipment being sought by the RFP at issue. Although Wang microcomputers were being used in the Miami ODD, Wang's proposal included conversion of the microcomputers to terminals, for which there were no Department standards. Even so, it would hake been difficult to require adherence to "standards" because the Department changed its microcomputer "standards" in August, 1989, during the period of time vendors were formulating responses to the RFP. The failure of the RFP to require adherence to such "standards" was immaterial. Ms. Hardy's statement that the RFP failed to require STRADIS documentation is correct. The RFP (at page 41, section 6.025-H) states that documentation "should use the HRS standard, which is the McDonnell Douglas STRADIS. . ." Addendum #2 to the RFP, states that vendors "must" submit STRADIS documentation, depending on the type of system proposed. With regard to the conflict between the RFP and the subsequent addendum, the evaluation team treated the item as preferred but not required. The minimum STRADIS documentation consists of a "Keyed Entity Relationship (E/R) model plus its associated Level one Data Flow Diagram (DFD)." There are apparently unknown costs related to production of the model and required IBM provided the model and diagram in its proposal. Although Wang provided substantial technical and functional documentation,, Wang did not include the model and diagram, but did include the cost of providing the STRADIS documentation in its cost proposal. The evidence shows that Wang was able to provide the STRADIS documentation at no added cost. The failure of the original RFP to require STRADIS documentation is insignificant and immaterial. In concluding the September 19 memorandum, Ms. Hardy recommended that no award be made. She identifies several reasons for her recommendation which indicate that Ms. Hardy preferred that IBM be awarded the contract. She states that the cost disparity between the low Wang bid and, the higher IBM bid indicated that the expansion costs for the Wang system would be "much higher" and the configuration proposed by Wang would not meet expected performance levels, that supplemental reference checks indicated that other agencies had problems obtaining service and support from Wang, that Wang's financial stability was "in question", that the "development of functional requirements of the FLORIDA system indicate that on-line interfaces and tight linkages with the FLORIDA system will be essential", that "[b]ecause of our plans for centralized network management from the HRS Technology Center, it is important that the IBM solution can run Network (sic)", and that the "recent implementation of the IBM/Versa solution in Tennessee was very successful. " Ms. Hardy's concern about the cost differential was misplaced. At the oral presentation, Wang clearly stated that per-site expansion cost would be no more than the initial installation. The RFP provided substantial fiscal safeguards requiring that acceptable performance levels be achieved during the installation of the system prior to the Department accepting the installation and paying the vendor. There is no evidence supporting her assertion that the difference between the Wang bid and the IBM bid indicate that Wang's expansion costs will be higher than IBM's, or that Wang's performance levels will be unacceptable. As to the "supplemental reference" checks made by Ms. Van Dusseldorp, she contacted only two additional references, one being the Executive Office of the Governor and the other being Ms. Pettijohn. Neither of the two references were substantially negative. Ms. Van Dusseldorp did not contact other offices in the Department utilizing Wang systems. One Department office, the Health Care Cost Containment Board, recently obtained Ms. Hardy's approval to expand their similar Wang system. Further, Wang was provided no opportunity to submit supplemental references or to respond to the two obtained by Ms. Van Dusseldorp. The "supplemental reference" checks made by Ms. Van Dusseldorp are immaterial. There is no evidence that Wang's financial stability was questionable. Ms. Hardy relied on a series of newspaper articles, and on other material provided by IBM, for her information. Despite her concern, she provided Wang no opportunity to respond to the issue. As to the issue of connectability with the FLORIDA system, the greater weight of the evidence does not support Ms. Hardy's assertion. As addressed previously, Ms. Hardy stated, in her June 28 memorandum to the Secretary, that the ODD system should be capable of being connected to the IBM-based FLORIDA system. The evidence shows that the SSA/NDDS system, which the RFP indicated the ODD system was to connect with, is an IBM system. The mainframe computer used by Wang is an IBM system. The Wang system would be capable of communicating with the FLORIDA system at least to the extent the department has actually considered the issue. The failure of the RFP to require "integration" with the FLORIDA system does not indicate that the Wang system is unable to "interface" with the FLORIDA system, if and when such capability is desired. Ms. Hardy's asserts that, "[b]ecause of our plans for centralized network management from the HRS Technology Center, it is important that the IBM solution can run Network (sic)". This statement clearly suggests Ms. Hardy's preference for the IBM system. "Netview" (incorrectly identified as "Network" in the memo) is an IBM tool which permits analysis of computer system malfunctions by a diagnostician located in a centralized office. The RFP did not address Netview requirements. Evidence shows that Wang's system either is or will be Netview-compatible. At this time, the Department's FLORIDA system is not operating Netview. Wang was not provided with an opportunity to respond to Ms. Hardy's concern. The lack of Netview requirements in the RFP is immaterial. Further evidence of Ms. Hardy's preference for the IBM system is her comment, the "recent implementation of the IBM/Versa solution in Tennessee was very successful...." The source of Ms. Hardy's information is a magazine article she obtained while attending the Miami conference attended by IBM representatives. However, IBM's response to the RFP included Tennessee in its required references which were considered by the evaluation committee. The RFP provided that the Department could reject any and all proposals if such action was determined to be in the best interest of the Department. At hearing, Ms. Hardy asserted that her rejection of proposals and withdrawal of the RFP were in the best interest of the Department. The evidence suggests that Ms. Hardy favored the IBM proposal. As previously identified, the rationale for withdrawing the RFP included factors either detrimental to Wang or supportive of the IBM proposal. The greater weight of evidence does not support a finding that withdrawal of the RFP is in the best interest of the state. The rationale for nonaward of the contract and withdrawal of the RFP consists of factors either immaterial, unsupported by evidence, or contrary to fact. The withdrawal of the RFP was arbitrary. In the memo of September 19, Ms. Hardy recommends to Secretary Coler, that an emergency be declared. In part, Ms. Hardy relies on her stated belief that the federal funds would revert if not obligated by a date certain, and also states that "[d]eclaring an emergency does stop any further recourse within the state administrative hearing process. On September 19, 1989, the day Ms. Hardy forwarded her memorandum recommending that the RFP be withdrawn, Ms. Hardy met with employees from ODD and Management Systems, and representatives of IBM. A representative from the SSA also attended. The subject of the meeting was the cost of expanding the proposed IBM system to the remaining ODD sites. Ms. Hardy called the meeting in response to the SSA representative's concern that IBM's expansion costs would exceed proposed funding. At the meeting, a printed document was provided by IBM comparing the proposed Wang and IBM systems, and addressing Netview and source code issues. Additionally, a handwritten document was circulated which indicated that the per site expansion software costs for the IBM proposal could be significantly lower than the initial installation, and that an expanded ,system could be achieved within the SSA-approved funds. There were no Wang representatives notified of or present at the September 19 meeting. No official notice of the proposed withdrawal of the RFP had been provided to any vendor. On September 20, 1989, a meeting took place in Mr. Rodgers' office, attended by employees of management Systems and representatives of IBM. The purpose of the meeting was to establish specific pricing for the acquisition of the IBM system for the Miami ODD office. The framework for the discussion was the price proposal submitted the previous day by IBM. The Department's plan was to purchase some of the equipment through the state's negotiated price contract program. The remainder of the equipment would be acquired through "emergency purchase" provisions. There were no Wang representatives notified of or present at the September 20 meeting. No official notice of the proposed withdrawal of the RFP had been provided to any vendor. On September 22, 1989, Mr. Rodgers mat with IBM representatives to review the vendor's written proposal related to the discussion of September 20. Questions were raised during the meeting, and on September 25, the participants met again, at which time IBM presented the final version of the proposal. The proposed system included equipment and software substantially similar to the proposal submitted by IBM in response to the RFP. There were no Wang representatives notified of or present at either the September 22 or 25 meetings. No official notice of the proposed withdrawal of the RFP had been provided to any vendor. As previously stated, Ms. Hardy recommends in the memo of September 19 to Secretary Coler, that an emergency be declared based upon the alleged reversion of funds and on the belief that such would prevent an administrative challenge to the action. At some time after the memo had bean forwarded to the Secretary, Mr. Rodgers prepared a written statement offering further support for the declaration of emergency, including increased case loads and personnel reductions. Although the additional materials were subsequently attached to the memorandum, they were not included as of the date the memo was forwarded to the Secretary. On October 16, 1989, the Secretary signed the emergency certification form, completion of which is required by the Department of General Services prior to emergency acquisitions. The certification included the additional Rodgers materials. According to Rule 13A-1.001(14) Florida Administrative Code, an emergency purchase is "...a purchase necessitated by a sudden unexpected turn of events (e.g. acts of God, riot, fires, floods, accidents or any circumstances or cause beyond the control of the agency in the normal conduct of its business) where the delay incident in competitive bidding would be detrimental to the interests of the State." The evidence does not establish that the "emergency" in this case is related to a sudden unexpected turn of events. The evidence does not establish that funds would indeed revert back to the federal government if not obligated by a date certain. Although Department witnesses testified that the federal funds were required to have been obligated not later than September 30 or such funds would revert to the federal government, the evidence does not establish what was required to encumber the funds. There is no evidence indicating that the Department has sought information from the SSA related to action required to obligate such funds. Even if the evidence established that such funds would revert to the federal government, such is clearly not due to a sudden unexpected turn of events sufficient to qualify for purchase under an emergency situation. The Department also suggests chat settlement of legal action against the Department (unrelated to this case) will result in a substantial increase in the number of medically needy determinations which must be made. The legal action was resolved prior to the release of the RFP. Again, the situation is not due to a sudden unexpected turn of events sufficient to qualify for purchase under an emergency situation. The greater weight of evidence establishes that the declaration of emergency was part of a plan to acquire an IBM system for the Miami ODD. On September 26, 1989, Ms. Hardy signed an information resource request authorizing acquisition of the IBM system. Two purchase orders were prepared identifying the computer equipment available on state contract. Two emergency purchase orders were prepared to acquire the remaining equipment which was not available under the state contract. No official notification of the withdrawal of the RFP had been made. Between September 19 and 27, Mr. Rodgers requested authorization to release notice of the withdrawal the RFP several times. Apparently pursuant to Ms. Hardy's instructions, Ms. Van Dusseldorp did not authorize release. On September 28, 1989, Ms. Hardy authorized release of a letter, dated September 27, 1989, informing the vendors that the RFP had been withdrawn. The letters were sent certified mail on September 28, 1989. At least in part, the purpose for Ms. Hardy's delay in providing notification of the withdrawal of the RFP to the appropriate vendors was her belief that the RFP withdrawal and emergency purchase could prevent an administrative challenge to Management Systems' acquisition plan. Ms. Hardy admitted that she believed, pursuant to information obtained from within the Department, that withdrawal of the RFP and subsequent declaration of emergency prohibited administrative challenge. Ms. Hardy desired to eliminate the possibility that an administrative challenge would delay the planned IBM acquisition. The effect of the delay was to permit the Department to negotiate the purchase of the IBM/Versa system without the other vendors learning of the Department's action prior to execution of the contracts and emergency purchase orders. The Department asserts that the rejection of all bids and withdrawal of the RFP, was an act separate and apart from the declaration of emergency and subsequent negotiations with IBM. The evidence does not support the assertion. The reason for the September 19 meeting between representatives of IBM, the Department, and the SSA was to discuss expansion costs of the IBM system and the related concern expressed by the representative of the SSA to Ms. Hardy (after the oral presentations of September 18), that the IBM proposal would exceed available funds if the Miami costs were multiplied by the remaining sites. IBM arrived at the meeting prepared to establish a reduced price for the expansion sites. The IBM proposal which served as a basis for the discussion was the IBM proposal submitted in response to the RFP. The IBM emergency purchase proposal included substantially the same equipment and software as that included in the RFP proposal. Page 22 of the RFP, at paragraph 4.020, entitled "Cost Discussions", in relevant part states, "Any discussion by the bidder with any employee or authorized representative of the Department involving cost information, occurring prior to posting of Bid results, will result in rejection of said bidder's proposal." The weight of the evidence indicates that the discussions between IBM and the Department prior to the release of the RFP withdrawal notice, are violative of this paragraph. The evidence establishes that the RFP would have provided an acceptable system, that Wang and IBM proposals were responsive to the RFP, and that the proposals were appropriately evaluated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Health and Rehabilitative Services enter a Final Order awarding the contract #RFP-89-RR-1 to the Petitioner. DONE and RECOMMENDED this day February, 1990, in Tallahassee, Florida. WILLIAM E. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 1990. APPENDIX TO RECOMMENDED ORDER CASE NO. 89-5488BID The following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified in the Recommended Order except as follows: 3. Rejected, argument, not appropriate finding of fact. 6. Rejected, immaterial. The statement that "comments from Deputy Secretary Hardy and others were sent to the development team" is rejected, not supported by greater weight of the evidence. Cited evidence does not support finding that Ms. Hardy provided comments to the development team. Greater weight of the evidence indicates that comments came from others involved in RFP preparation, not from Ms. Hardy, whose role during the RFP development process was, at best, minimal. The identification of issues addressed in Ms. Hardy's memo misstates the context within the memo and as related to issues at hearing, rejected, not supported by greater weight of evidence. 37. Rejected, irrelevant. 53. Rejected, as related to September 25 contract which does not require transfer of source code ownership. The fact that the IBM contract does not provide for source of ownership is indicative of Ms. Hardy's lack of concern related to IBM's financial stability. 58. Rejected, irrelevant. IBM likely did not include Netview in the RFP proposal because the RFP did not require such. 59-60. Rejected, irrelevant, RFP did not address connectivity issues. As to "Netview Gateway," rejected, not supported by evidence, testimony indicated that the product was not commercially available at time of hearing. 74. Rejected, not supported by evidence. 82-84. Rejected, irrelevant. Wang's alleged financial problems, not supported by evidence. Rejected, cumulative. Rejected, greater weight of evidence does not establish that Wang/Netview product is commercially available. Rejected, fourth and fifth sentences, argument, not appropriate finding of fact. 97. Rejected, unnecessary. 102. Rejected, unnecessary. 103, 105-113. Rejected, cumulative. Respondent The Respondent's proposed findings of fact are accepted as modified in the Recommended Order except as follows: 3. The assertion that the advance planning document should have been submitted to Management Systems for approval is rejected, not supported by greater weight of evidence. The evidence indicates that, at the time the document was submitted to the SSA, no such requirement existed. 9. Rejected, not supported by evidence. Statutory citation states that Deputy Secretary is "responsible for automated information systems". The statute does not specify that such responsibility includes approval of systems. 11-12. Rejected, not supported by evidence. Characterization of RFP as "defective" rejected, unnecessary. Rejected, not supported by evidence. Accepted as to the fact that such articles were read, but rejected as to whether such articles established that Wang was financially troubled, not supported by evidence. Rejected. Greater weight of evidence does not establish that delay in notification was related to agency policy. 32B. Rejected, characterization "major concerns" not supported by greater weight of the evidence. 33-37. Rejected. No evidence to permit conclusion related to Wang's financial status. The fact that Wang was never asked for information related to financial status does not support alleged concern. The fact that articles came from Wall Street Journal, irrelevant. 40. Rejected, immaterial. 43-45. Rejected, not supported by greater weight of evidence. Factors identified as support for emergency purchase existed prior to publication of the RFP. The greater weight of evidence suggests that emergency purchase action was primarily to permit acquisition of IBM equipment. Rejected, irrelevant. Rejected, not supported by greater weight of evidence. Factor identified as support for emergency purchase existed prior to publication of the RFP. The greater weight of evidence suggests that emergency purchase action was primarily to permit acquisition of IBM equipment. 49-50. Rejected, immaterial. Intervenor The Intervenor' s proposed findings of fact are accepted as modified in the Recommended Order except as follows: 2. The reference to expiration of funding is rejected, not supported by the evidence. 5-15. Rejected as to indicating Wang proposal was nonresponsive, not supported by greater weight of evidence. Actions by the Department do not indicate that at any time prior to Wang's filing of the protest was Wang determined to be nonresponsive to the RFP. In fact, had Wang been viewed as nonresponsive, the Department could have simply disqualified Wang and proceeded to make the award to the second-place bidder, IBM. Instead the Department withdrew the RFP, net because the bids were nonresponsive, but because the RFP was deficient. 21. Accepted as to the time frame within which the RFP was drafted. Rejected as to the alleged deadline, not supported by evidence. 25. Rejected as to Mr. Rodgers' anxiety, immaterial, and as to the alleged deadline, not supported by evidence. 28-30. Rejected, not supported by greater weight of evidence. Actions by the Department do not indicate that at any time prior to Wang's filing of the protest was Wang determined to be nonresponsive to the RFP. In fact, had Wang been viewed as nonresponsive, the Department could have simply disqualified Wang and proceeded to make the award to the second-place bidder, IBM. 36. Rejected, not supported by evidence. Cited testimony was that of an ODD employee who was not involved in oral presentations and had not previously worked on an RFP. 40. Rejected, not supported by the evidence, which indicates that Ms. Hardy attended only portions of the oral presentations. Last sentence, rejected, irrelevant. The RFP did not require source code ownership. Last two sentences, rejected, irrelevant. The RFP did not require "Netview" capability. 48. Rejected, not supported by greater weight of evidence. 49-51. Rejected. Suggested loss of finds not supported by evidence. Other factors identified as support for emergency purchase existed prior to publication of the RFP. The greater weight of evidence suggests that emergency purchase action was primarily to permit acquisition of IBM equipment. 52. Rejected. Testimony clearly shows that all discussions between DHRS and IBM to provide system through emergency purchase occurred prior to official notice of withdrawal of RFP to vendors, yet it is unlikely that IBM participated in discussions related to purchasing the Miami ODD system without knowledge that the RFP was not operative. Reference to alleged loss of funds rejected, not supported by evidence. Last two sentences, rejected, irrelevant. COPIES FURNISHED: John Miller General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700 Thomas M. Beason, Esq. Donna Stinson, Esq. Moyle, Flanigan, Katz, Fitzgerald & Sheehan, P.A. The Perkins House, Suite 100 118 North Gadsden Street Tallahassee, Florida 32301 John M. Alford, Esq. Holland & Knight Drawer 810 Tallahassee, Florida 32302 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 =================================================================
The Issue Whether proposed amendments to Florida Administrative Code Rule 59G-8.200 are invalid exercises of delegated legislative authority.
Findings Of Fact AHCA is designated as the single state agency for administering the Federal/State Medicaid Program pursuant to Section 409.902, Florida Statutes (2003).2 The Florida Medicaid Developmental Services Home and Community-Based Services Waiver Program (HCBS or DS waiver services) is one of several Medicaid waiver programs. HCBS is designed to provide services to individuals with developmental disabilities to allow them to remain in the community and avoid placement in institutions. AHCA and DCF have entered into an agreement, by which DCF has agreed to implement the HCBS program. AHCA retains the authority and responsibility to issue policy, rules, and regulations concerning the HCBS program, and DCF is required to operate the program in accordance with those policies, rules, and regulations. The Florida Association of Rehabilitation Facilities, Inc. (FARF), is a not-for-profit 501(c)3 corporation, and a state-wide association of corporate organizations providing services to handicapped and developmentally disabled persons. Of the 61 members of FARF, 51 are Medicaid home and community- based waiver providers who provide services to developmentally disabled persons, who are recipients of the Florida Medicaid program and are enrolled under the HCBS waiver program. The Association for Retarded Citizens of Florida, Inc. (ARC), a not-for-profit corporation, is a state-wide association which works through advocacy, education, and training to reduce the incidence of mental retardation and other developmental disabilities. It has 43 affiliate chapters located throughout the state. Of those affiliate chapters, 40 are Medicaid providers, which provide Medicaid services to developmentally disabled persons who are recipients of the Florida Medicaid program and are enrolled under the HCBS waiver program. ARC also has approximately 1,500 individual members. Between 25 to 50 percent of the individual members are either self-advocate recipients of services from the HCBS waiver program or family members or guardians of HCBS waiver program recipients. On January 17, 2003, AHCA published a Notice of Rule Development concerning proposed amendments to Florida Administrative Code Rule 59G-8.200. The proposed amendments incorporated by reference changes to a handbook entitled "Developmental Services Waiver Services and Coverage and Limitations Handbook" (Handbook). AHCA published its Notice of Proposed Rule on July 25, 2003. A First Notice of Change was published on October 17, 2003, and a Second Notice of Change was published on November 26, 2003. A Notice of Additional Hearing was published on November 26, 2003, and a final public hearing on the proposed amendments was held on January 6, 2004. The Handbook's purpose is stated in the Handbook as follows: The purpose of the Medicaid handbooks is to furnish the Medicaid provider with the policies and procedures needed to receive reimbursement for covered services provided to eligible Florida Medicaid recipients. The Handbook provides that a provider must have a signed DS Waiver Services Agreement with DCF in order to be eligible to provide DS waiver services. The Developmental Disabilities Program Medicaid Waiver Services Agreement (DS Waiver Services Agreement) requires the provider to comply with all the terms and conditions contained in the Handbook for specific services rendered by the provider. During the rulemaking process, AHCA involved stakeholders in the development of the amendments to Florida Administrative Code Rule 59G-8.200, including changes to the Handbook. A stakeholder is an organization or individual who has a primary interest in the HCBS waiver program or is directly affected by changes in the program. At the final hearing, Shelly Brantley, former bureau chief of AHCA's Medicaid Program Development, correctly described ARC and FARF as stakeholders for the HCBS waiver program. Petitioners conducted surveys of their membership to determine whether the proposed changes to the Handbook would adversely affect their members. Surveys were also conducted to determine whether any of the members were small businesses as that term is defined in Section 288.703, Florida Statutes. Of the 51 provider members in FARF, 15 qualified as small businesses having less than 200 employees and less than $5 million in total assets. Of ARC's 40 provider members, 38 met the small business definition of Section 288.703, Florida Statutes. Such surveys by associations provide the type of information that would be commonly relied upon by reasonably prudent persons in the conduct of their affairs. AHCA acknowledged that small businesses would be impacted by the changes to the Handbook, and the impact to small businesses was discussed and considered in developing the proposed rules. As of the date of the final hearing, AHCA had not sent a copy of the proposed rules to the small business ombudsman of the Office of Tourism, Trade, and Economic Development as required by Subsection 120.54(3)(b)2.b., Florida Statutes. Petitioners have alleged that AHCA failed to follow applicable rulemaking procedures by not having the Handbook available at the time of the publication of the notice of rulemaking on July 25, 2003, and the notices of changes published on October 17, 2003, and November 21, 2003. Although the Handbook was incorporated by reference as an amendment to Florida Administrative Code Rule 59G-8.200(12), the major purpose of the amendment was to make changes in the Handbook. The Notice of Rulemaking published on July 25, 2003, provided that the Handbook was available from the Medicaid fiscal agent. However, the revised Handbook was not generally available until August 2003. Further revisions to the Handbook were not readily available at the time the notices of changes were published. The lack of availability of the Handbook on the dates of the publication of the notices did not impair the fairness of the rulemaking proceedings or the substantial interests of Petitioners. Petitioners had an opportunity to review the handbook and to give input to AHCA concerning the proposed changes. Petitioners did get copies of the revised Handbook in time to meaningfully participate in the two public hearings which were held on the proposed rules, and Petitioners had an opportunity to provide written comments on the revisions to the Handbook. At the final public hearing held on January 6, 2004, AHCA provided the participants with a "clean copy" of the Handbook, meaning a copy in which the underlines and strike- throughs had been deleted and the text read as it would read when published in the Florida Administrative Code. This caused confusion among the attendees at the public hearing because "clean copy" Handbooks had not been available to the public prior to the final hearing. With one exception concerning residential habilitation services for children, which is discussed below, the "clean copy" of the Handbook was essentially the same as the version which had been available to the public, in which added language was underlined and deleted language was struck-through. The interests of Petitioners and the fairness of the rulemaking proceedings were not impaired by the use of a "clean copy" of the Handbook at the January 2004 final public hearing. A state Medicaid Agency is required to provide notice to a recipient ten days before the agency takes action to reduce a benefit pursuant to 42 CFR Section 431.200. The evidence did not establish whether AHCA provided notice to HCBS waiver recipients that the proposed changes to the rule would reduce certain benefits. Some of Petitioners' witnesses did not think that any of their individual members received notice, but there was no direct evidence to establish that no notice was provided. Petitioners challenged the following provision of the Handbook: Providers wishing to expand their status from a solo provider to an agency provider, or a provider desiring to obtain certification in additional waiver services must be approved by the district in order to expand. A provider must have attained an overall score of at least 85% on their last quality assurance monitoring conducted by the Agency, the Department, or an authorized agent of the Agency or Department in order to be considered for expansion. Petitioners argue that the language in this portion of the Handbook is vague and gives AHCA unbridled discretion when "considering" a provider for expansion. The language is not vague and does not give AHCA unbridled discretion when a provider is considered for expansion. In order for a provider to be considered for expansion, the provider must have scored at least 85 percent on their last quality assurance monitoring. The 85-percent score is a threshold which the provider must meet before AHCA will determine whether the provider meets other criteria for expansion, which are set out in the Handbook, statutes, and rules. Recipients have a freedom of choice in selecting their service providers from among enrolled, qualified service providers. Recipients may change service providers to meet the goals and objectives set out in the their support plans. Petitioners have challenged the following provision, which AHCA proposes to add to the freedom of choice section of the Handbook: Freedom of choice includes recipient responsibility for selection of the most cost beneficial environment and combination of services and supports to accomplish the recipient's goals. Petitioners contend that the language is vague, arbitrary, and capricious, fails to establish adequate standards for agency discretion, and vests unbridled discretion in AHCA. The term "cost beneficial" is defined in the Handbook to mean "economical in terms of the goods or services received and the money spent." The Handbook also contains the following definition for a support plan: Support plan is an individualized plan of supports and services designed to meet the needs of an enrolled recipient. This plan is based upon the preferences, interests, talents, attributes and needs of a recipient. The recipient or parent, legal guardian advocate, as appropriate, shall be consulted in the development of the plan and shall be receive a copy of the plan and any revisions made to the plan. Each plan shall include the most appropriate, least restrictive, and most cost-beneficial environment for accomplishment of the objectives and a specification of all services authorized. The plan shall include provisions for the most appropriate level of care for the recipient. The ultimate goal of each plan, whenever possible, shall be to enable the recipient to live a dignified life in the least restrictive setting, appropriate to the recipient's needs. The support plan must be completed according to the instructions provided by the Department. (emphasis supplied) The "most cost-beneficial" language is not new. It already exists in the current Handbook, which is incorporated by reference in Florida Administrative Code Rule 59G-8.200. The proposed amendment does not impose a new requirement on recipients, and it is not vague, arbitrary, or capricious. The "most cost beneficial" language is consistent with the Handbook provision defining the terms "medical necessity" or "medically necessary" as they relate to the determination of the need and appropriateness of Medicaid services for a recipient. One of the conditions needed for a determination that a service is a medical necessity is that the service "be reflective of the level of service that can be safely furnished, and for which no equally effective and more conservative or less costly treatment is available, statewide." Petitioners have challenged the following provision of the Handbook: All direct service providers are required to complete training in the Department Direct Care Core Competencies Training, or an equivalent curriculum approved by the Department within 120 days from the effective date of this rule. Said training may be completed using the Department's web- based instruction, self-paced instruction, or classroom instruction. Providers are expected to have direct care staff who are competent in a set of direct care core areas. A curriculum has been developed to provide assistance to the providers in training their direct staff to become competent in these direct care areas. The training curriculum consists of two modules, with three different training formats. Petitioners contend that the curriculum was not completely developed, and would not be in existence at the time the rules are adopted. The Web-based format was completed in the fall of 2003, and the other two formats were completed in the spring of 2004. Thus, the Department's Direct Care Core Competencies Training is available. Petitioners have challenged the following provision of the Handbook: The current Department approved assessment, entitled Individual Cost Guidelines (ICG), is a tool designed to determine the recipients' resource allocations of waiver(s) funds for recipients receiving supports from the State of Florida, Department of Children and Families, Developmental Disabilities Program (DDP). The ICG is a validated tool that provides a rational basis for the allocation of the waiver funds to individuals with developmental disabilities. Waiver(s) funds refers to funds allocated through the Developmental Services HCBS waiver, the Supported Living Wavier, and the Consumer- Directed Care Plus waiver (CDC+). The instructions for the completion of this assessment is provided by the Department and is completed at least every three years or as determined necessary by the recipient and the waiver support coordinator, due to changing needs of the recipients. It is Petitioners' contention that the ICG, like the Direct Care Core Competencies Training, was not completed and would not be available to the providers prior to the adoption of the proposed rules. The ICG was completed in the fall of 2003. Its validity and reliability as an assessment tool for assessing needs of individual recipients has been tested. During September and October 2003, a three-day workshop was held in every district of DCF for the purpose of training workers to administer the ICG. The first day of the workshop provided an overview for interested persons. Hardcopies of the ICG were handed out for review by the participants, including providers. Petitioners have challenged the portion of the Handbook which provides, "[t]he primary live in support worker shall be named on the lease along with all other recipients." It is Petitioners' position that the proposed language is in conflict with unchallenged language in the proposed Handbook and is contrary to the guidelines in the State Medicaid Manual. The unchallenged portion of the Handbook at page 2-77 provides: The in-home support provider or the provider's immediate family shall not be the recipient's landlord of have any interest in the ownership of the housing unit as stated in Chapter 65B-11.005(2)(c), F.A.C.[3] If renting, the name of the recipient receiving in-home support services must appear on the lease singularly or as a guarantor. The State Medicaid Manual provides at page 4-450, subsection 12, that "FFP for live-in care givers is not available in situations in which the recipient lives in a caregiver's home or a residence owned or leased by the provider of Medicaid services." AHCA contends that the purpose for requiring the live- in support worker to sign the lease is to prevent the live-in home support worker (worker) from taking advantage of the recipient by failing to contribute anything to the normal living expenses. Having the worker named on the lease does not guarantee that the worker will pay his or her portion of the rent. The recipient is still liable to the landlord whether the worker pays, and the worker would be liable whether the recipient paid. The unchallenged portion of the proposed changes to the Handbook provides that the worker must pay an equal share of the room and board for the home. Having the worker on the lease poses problems when the worker is no longer providing services. The landlord may not be willing to renegotiate the lease by substituting another worker on the lease. Additionally, the worker may not wish to vacate the premises just because he or she is no longer providing services, and, since the worker is a lessee of the property, the recipient may have to find new quarters if the recipient does not desire to share the home with the worker. Petitioners have challenged the portion of the Handbook which provides that "[t]he amount of respite services are determined individually and limited to no more than thirty (30) days per year, (720 hours) per recipient." Respite care is defined in the Handbook as "a service that provides supportive care and supervision to a recipient when the primary caregiver is unable to perform these duties due to a planned brief absence, an emergency absence or when the caregiver is available, but temporarily unable to care for or supervise the recipient for a brief period of time." Respite care services are designed to be provided for a short time. In determining the amount of time to limit respite care, AHCA reviewed historical data and did not find that many individuals used respite care service for more than two weeks. Stakeholders, family members of recipients, and recipients were involved in discussions with AHCA concerning the time limitation to 30 days. AHCA reviewed other waiver state agencies and found that waivers for individuals with developmental disabilities have similar limits on respite care. Individuals whose primary caregiver may become unavailable for a period of greater than 30 days may receive other types of services to assist them while their caregivers are absent. The types of services that may be available are determined on a case-by-case basis. Petitioners have challenged the portion of the Handbook which provides: III. FINES AND PENALTIES In accordance with the provisions of Section 402.73(7), Florida Statutes, and Section 65-29.001, Florida Administrative Code, penalties may be imposed for failure to implement or to make acceptable progress on such quality improvement plans as specified in Section II.A of this Agreement. The increments of penalty imposition that shall apply, unless the Department determines that extenuating circumstances exist, shall be based upon the severity of the non-compliance, non-performance or unacceptable performance that generated the need for a quality improvement plan. The penalty, if imposed, shall not exceed ten percent (10%) of the total billed by the provider for services during the period in which the quality improvement plan has not been implemented, or in which acceptable progress toward implementation has not been made. This period is defined, as the time period from receipt of the report of findings to the time of the follow-up determination that correction or progress toward improvement has not been made. Non-compliance that is determined to have a direct effect on individual health and safety shall result in the imposition of a ten percent (10%) penalty of the total payments billed by the provider during the period in which the quality improvement plan has not been implemented or in which acceptable progress toward implementation has not been made. Non-compliance involving the provision of training responsibilities or direct service to the individual not having a direct effect on individual health and safety shall result in the imposition of a five percent (5%) penalty. Non-compliance as a result of unacceptable performance of administrative tasks, such as policy and procedure development, shall result in the imposition of a two percent(2%) penalty. In the event of nonpayment, the Department will request the Agency for Health Care Administration deduct the amount of the penalty from claims submitted by the provider for the covered time period. This penalty provision is contained in the DS Waiver Services Agreement contained in Appendix B of the Handbook. The providers are required to complete the agreement to provide services to recipients and are required to comply with the terms and conditions of the agreement. Although the agreement is between the Developmental Disabilities Program of DCF and the providers, DCF is entering into the agreement pursuant to an interagency agreement between DCF and AHCA that DCF will operate the waiver program on behalf of AHCA. AHCA establishes the rules, policies, procedures, regulations, manuals, and handbooks under which DCF operates the program. The inclusion of the penalties provision in the agreement is done based on the authority of Subsection 402.73(7), Florida Statutes, and Florida Administrative Code Rule 65-29.001, which govern the authority of DCF, not AHCA. If AHCA seeks to impose penalties on providers relating to the waiver program, it can do so only based on its statutory authority. DCF merely stands in the shoes of AHCA and has only the authority for the operation of the waiver program that AHCA would have if AHCA were operating the program itself. Petitioners have challenged the portion of the Handbook which reduces the maximum limits of residential habilitation services from 365 days to 350 days. AHCA contends that the reduction of days is merely a reduction in the maximum number of days that a provider can bill for residential habilitation services. The rate at which the provider is being compensated includes a 15-day vacancy factor. The State Medicaid Manual from the Center for Medicare and Medicaid allows for this type of reimbursement and provides: FFP [federal financial participation] is not available to facilities providing services in residential settings on days when waiver recipients are temporarily absent and are not receiving covered waiver services (sometimes called reserve bed days). Medicaid payment may be made only for waiver services actually provided to an eligible recipient. Since providers incur fixed costs such as rent, staff salaries, insurance, etc., even when a waiver recipient is temporarily absent, you may account for such continuing costs when developing payment rates for these providers. For example, rent is generally paid for a period of 1 month. However, day habilitation services are generally furnished only 5 days per week. You may take the entire month's rental cost into consideration in setting the rate paid for services furnished on the days the recipient is present. Similarly, if data shows that a recipient is served in residential habilitation an average of 325 days per year and the slot is held open when the recipient is on a leave of absence, you may consider the entire yearly cost to the provider when establishing its rate of payment. However, in the rate setting process, it must be assumed that a facility will not have a 100 percent utilization rate every day of the year. Consequently, payment rates are established by dividing the provider's total allowable costs by the number of Medicaid patient days you estimate recipients will actually utilize. The change from 365 days to 350 days is not a reduction in service, it is a reimbursement method which utilizes a 15-day vacancy factor. The number of days chosen was based on information furnished by the providers to AHCA during a survey completed in July 2003. Based on the survey, it was concluded that the providers billed for services for 345 to 350 days per year. Contrary to its present position, Petitioner FARF took the position early in the rulemaking procedure that billing on a 365-day year would be harmful to the providers. In a letter to AHCA dated February 4, 2003, Terry Farmer, CEO of FARF, advised: Attached is a compilation of written comments from Florida ARF members on the proposed rule #59G-8.200, titled "the Home and Community Based Services Waiver." * * * Going to the 365 day billing schedule will create hardships for consumers, families and providers because it discourages weekly home visits and doesn't address frequent hospitalizations or vacations. The 15 day down factor is very low for consumers who want to go home 2-3 times a month and would also like a yearly vacation. Recommendation: Increase the down factor to 5 days per month (60 days per year) to accommodate for absences in order to reduce the negative impact of home visits and vacations upon both the consumer and group home provider. This is particularly important when the focus is on meeting Personal Outcomes that may result in the consumer being away from the group home. Petitioners have challenged the portion of the Handbook which deleted the following provision: Residential habilitation services may be provided to children residing in a licensed facility or children with severe behavioral issues living in their family home. The child must have a written behavior analysis service plan that is written and monitored by a certified behavior analyst, in order for the services by a behavior assistant to be reimbursed under residential habilitation. The focus of the service is to assist the parents in training and implementing the behavior analysis services plan. At the final hearing, AHCA conceded that it was in error when it deleted the language relating to the provision of residential habilitation services to children and stated that the language would be reinstated. Section 409.908, Florida Statutes, provides: Subject to specific appropriations, the agency shall reimburse Medicaid providers, in accordance with state and federal law, according to methodologies set forth in the rules of the agency and in policy manuals and handbooks incorporated by reference therein. AHCA set out its rate methodology for Developmental Services Home and Community Based Services rate reimbursement in Appendix A of the Handbook. Petitioners have challenged the rate methodology, stating that it was vague, failed to establish standards for agency discretion and vested unbridled discretion in AHCA's determination of rate reimbursement. The rate of reimbursement cannot be determined based on rate methodology. However, based on a reading of the introductory language to the rate methodology, it does not appear that it was the intent of AHCA to be able to determine the rates by using the rate methodology in Appendix A, and staff of AHCA readily admit that a specific rate for a specific service cannot be determined using the language in the methodology alone. The first paragraph of the methodology states: The following section describes key aspects of the Developmental Services (DS) Home and Community Based Services (HCBS) rate reimbursement structure. Specifically the cost items for each rate component are listed, agency and independent contract status is defined, and the rate structure for various services is described. It appears that the methodology set out in Appendix A is an overview of the process that was used in determining the rates. AHCA is in the process of developing rules that set out the actual rates that will be used. Petitioners have challenged the portion of the Handbook which provides that the maximum limit for adult day training is 240 days, a reduction from 260 days. The reduction of adult day training days is a limitation on services and a limitation on billing. The rate for providing adult day training contains a similar vacancy factor as contained in the rate for residential habilitation services. The purpose of adult day training is to provide training for skills acquisition. Adult day training is provided five days a week, meaning that the maximum time any recipient could spend in adult day training is 260 days a week. However, adult day training is not provided 260 days a year. No training is provided on holidays such as Christmas, Thanksgiving, Memorial Day, Labor Day, and other normal holidays. Generally, individuals do not attend training 260 days a year for other reasons such as hospitalizations. In determining that 240 days would be sufficient in amount, duration, and scope, AHCA contacted providers and learned that recipients generally do not receive adult day training more than 240 days per year.
The Issue The issue is whether Respondent engaged in the practice of discrimination against Petitioner when terminating him from employment as a firefighter due to a medical condition.
Findings Of Fact Petitioner, Jonathan Race, was employed by Respondent, Orange County Fire Rescue Department, since January 1989, and worked in the Operations Division as a Lieutenant/EMS Supervisor. In this role, he managed, coordinated, and performed firefighting and emergency rescue services. In the mid-1990s, Petitioner was diagnosed with atrial fibrillation which ultimately resulted, in July 2001, in his undergoing an open heart surgical procedure known as the "MAZE" procedure. Following the open heart surgery, Petitioner had a pacemaker installed in August 2001. Petitioner's cardiologist from 1997 to January, 2005, was Arnold Einhorn, M.D. Barry Portnoy, M.D., is a physician under contract with Orange County to perform annual physical examinations for members of the Orange County Fire Rescue Department. While Dr. Einhorn served as Petitioner's cardiologist, he had periodic conversations with Dr. Portnoy concerning Petitioner's cardiac condition. On May 20, 2003, Dr. Einhorn wrote a letter to Dr. Portnoy in which he stated that Petitioner, "continues to be on medical therapy with beta blockers and Digoxin and his underlying heart rate is in the 30s and this making him dependent on the pacemaker approximately 80% of the time." Dr. Einhorn concluded at that time that Petitioner needed to continue with his medications and use of the pacemaker. Petitioner, concluded, Dr. Einhorn, "is dependent on the pacemaker." On January 16, 2004, Dr. Portnoy conducted an annual physical for Petitioner. On February 6, 2004, Dr. Portnoy stated in his evaluation of Petitioner: "Classification deferred pending additional information. . . . Employee may continue in his/her present duties for no more than 30 days while awaiting further evaluation." On June 4, 2004, Dr. Portnoy completed his evaluation of Petitioner, imposing a restriction of "No functioning as a member of a team or independently where sudden incapacitation could result in harm to himself, risk to others, or mission failure." Dr. Portnoy placed Petitioner on light duty, which resulted in his assignment to an office job at fire headquarters. Respondent's policy dictates that, when an employee is placed on light duty, a medical review is conducted. After being placed on restricted or light duty, a medical review of Petitioner was commenced in June 2004. Respondent's medical review committee requested that Petitioner obtain from his cardiologist, Dr. Einhorn, information concerning Petitioner's cardiac condition. On January 5, 2005, Dr. Einhorn, at Petitioner's request, sent a letter to Dr. Portnoy in which he stated, in part, "We have been trying to wean the patient off beta blockers and Digoxin to see if the patient is still pacemaker dependent. He is now not on any Digoxin and Toprol and interrogation of his pacemaker revealed 30% atrial paced with 16 runs of atrial fibrillation." Based upon the information received from Dr. Einhorn by Dr. Portnoy, Respondent sent Petitioner a letter dated February 17, 2005, which stated that Respondent had determined there was a preponderance of evidence that restrictions placed on Petitioner by Dr. Portnoy would continue indefinitely and that Petitioner would not be able to return to his position in the Operations Division as Lieutenant/EMS Supervisor. Respondent concluded that under Article 34.11 of the Collective Bargaining Agreement, Petitioner would be medically separated from his employment with the County, effective March 26, 2005, at 19:30 hours. While on light office duty, Petitioner was given additional time to pursue other jobs with Orange County. Petitioner did not find another job with Orange County. On March 10, 2005, after Petitioner had received the February 17 letter from Respondent, Amish Parikh, M.D., wrote a letter "To Whom It May Concern", in which he stated that Petitioner "is now pacing only 0.8% of the time and it is not considered pacemaker-dependent. I believe the pacemaker is not a limiting factor in his ability to perform his job and he should be permitted to return to full duty without restrictions." Nothing in this letter makes reference to any medications Petitioner would be required to take in the future. On April 15, 2005, after Petitioner had been terminated from his employment with Respondent, Petitioner was examined by another cardiologist, Sunil M. Kakkar, M.D., who concluded that Petitioner was not pacemaker dependent and could return to full duties with Respondent. Neither Dr. Parikh nor Dr. Kakkar testified at the hearing. Their written reports appear to be based upon one visit by Petitioner with each of them. On March 23, 2005, Dr. Portnoy reviewed the March 10 letter from Dr. Parikh. Dr. Portnoy did not change his determination that Petitioner was pacemaker dependent after his review of Dr. Parikh's letter. Dr. Portnoy did not lift the restrictions he had imposed on Petitioner. At the time of hearing, Petitioner continued to take medications, both aspirin and Toprol, for his cardiac condition. David Hart worked as a firefighter with Respondent from March 16, 1981, through his voluntary retirement, with the rank of Engineer, on February 10, 2005. Mr. Hart was diagnosed with atrial fibrillation in 1992 and was treated for the condition with medications for the ensuing six years. Mr. Hart had a pacemaker implanted in October of 1998, and had the pacemaker in place through his retirement. While still employed by Respondent, Mr. Hart's private cardiologist, Dr. Filart, provided Respondent and Dr. Portnoy with information concerning the pacemaker, and determined that Mr. Hart was not pacemaker dependent. Based upon Dr. Filart's determination that Mr. Hart was not pacemaker dependent, Mr. Hart was not removed from duty or placed on restricted duty due to his pacemaker. Mr. Hart agreed that the decision with respect to pacemaker dependency should be made by the patient's cardiologist. Petitioner claims that he was discriminated against by Respondent due to disparate treatment between himself and David Hart. He alleges he is not pacemaker dependent, is similar to Mr. Hart, and, therefore, should not have been medically separated from his employment with Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a Final Order finding that the Respondent did not discriminate against Petitioner and dismissing the Petition for Relief. DONE AND ENTERED this 11th day of May, 2006, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 2006. COPIES FURNISHED: Denise Crawford, Agency Clerk Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Jonathan A. Race 1081 Dean Street St. Cloud, Florida 34771 Gary M. Glassman, Esquire Orange County Attorney's Office Litigation Section 435 North Orange Avenue, 3rd Floor Orlando, Florida 32801 Cecil Howard, General Counsel Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
