The Issue The issue in this case is whether Respondent's foster care license should be revoked for violating Florida Administrative Code Rule 65C-13.010.
Findings Of Fact DCFS is the state agency responsible for, inter alia, licensing and monitoring foster care parents. One of its duties is to investigate all allegations of abuse or neglect concerning children in foster care. Respondent is a 70-year-old female who was licensed on December 15, 2005, to be a "medical foster parent" so that she could care for children with special needs. The alleged victim in this matter, "Joy," had been placed with Respondent on June 22, 2005. At that time, Joy was nine years old, had Downs Syndrome, and was not communicative. Joy needed corrective lens, was not very coordinated, and was prone to clumsiness. She demanded a considerable amount of care to meet her needs. In September 2005, another child, Beth, began living at the house with Respondent and Joy. The relationship between Joy and Beth was somewhat strained. Respondent previously served as a guardian ad litem for at risk children. She has been a foster parent for approximately nine years. To become a medical foster parent, Respondent underwent training and then applied for licensure by DCFS. She was duly-licensed at the time of the incident in question. From the date of her licensure until the alleged incident, Respondent was considered a very good provider of care. There were no indications that she would be abusive to children in her care. When necessary, Respondent disciplined children in her care by withholding toys, placing them in time-out, and denying television/radio privileges. She did not utilize corporal punishment. From March 27 through 31, 2006, Joy and Beth attended a Spring Break Day Camp for Children with Disabilities. On Friday, March 31, 2006, Respondent picked up Joy and Beth from the day camp at Eau Gallie High School. On the way home, Respondent had to stop the car several times and attempt to re- secure Joy's car seat because Joy kept opening it. At one point, Respondent stopped in the parking lot of a local Wal- Mart, got out of the car, and went into the back seat. She proceeded to bang on the seat several times to keep it closed, but to no avail. She then used an elastic bungee cord to secure the seat. Two people in the Wal-Mart parking lot witnessed Respondent's actions. They perceived Respondent to be hitting the child and then use the bungee cord to tie the child's hands. Neither of the witnesses testified at final hearing, and their statements (included in the police report, Petitioner's Exhibit F) were not persuasive. It should be noted that despite Petitioner's statement in its Proposed Recommended Order that Respondent was allegedly striking the child with a bungee cord, the initial police report indicates that Respondent was allegedly using "hands, fist and feet" as the means of attack. The issue of a bungee cord was only brought up by the police after conducting its follow-up investigation some three or four days later. Respondent herself was the person who advised the investigation team about the existence of the bungee cord. Respondent vividly described the incident to have occurred as follows: After picking up Joy from school, Respondent became frustrated because Joy continued to open the car seat latch. Respondent stopped, attempted to bang the seat cover back down, and scolded Joy. This happened three times during the trip from school to home. On the third occasion, Respondent yelled at Joy and more forcefully banged on the seat cover. When it would not stay latched, Respondent took a bungee cord from the trunk and attempted to secure the seat. During this incident, Joy was upset and crying loudly. (Joy is extremely non-verbal and resorts to yelling and screaming when she is upset.) Respondent was also yelling and was upset. Certain individuals who were in the parking lot contacted the local police, and an investigation was commenced. A determination was made that the alleged perpetrator was a foster parent, so DCFS's child protection team was called. They immediately sent a team out to Respondent's home to examine the child and interview Respondent. Upon viewing the bruising on Joy's arms, the DCFS team decided to remove Joy and Beth from Respondent's home pending conclusion of the investigation. Joy was also taken to a local emergency room for medical evaluation, where pictures were taken of her bruises. The pictures, taken a day or two after the incident, do show bruising on Joy's arms and upper body. The bruises appear to be of different ages. Each of the bruises is fairly small, and some are identified by a nurse practitioner as "linear" in nature. In actuality, some of the small bruises are aligned in a row so that they could be called linear, but there are no pictures of bruising in a straight, unbroken line (as would appear if the child had been hit with a cord). Respondent has no history of abusing children in her care. She is held in high regard by the persons who monitor her care of medically needy children. She is one of few medical foster parents available in Brevard County to care for such children. Respondent kept a daily log of her activities with Joy in accordance with DCFS requirements. Those logs show several factors important to the present case: Bruises were noted on Joy's body the day prior to the incident. Respondent had dealt with the car seat problem earlier (e.g., on December 29, 2005). Joy would apparently bite and pinch herself and cause bruising. Joy needed glasses, but either intentionally or accidentally broke them very often, leaving her more likely to stumble and fall. The child's aggressive behavior often resulted in physical altercations with other children. The only person to testify at hearing who was present at the time of the alleged abuse was Respondent. Her description of the event was the most credible testimony presented.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Children and Family Services rescinding the revocation of Respondent's foster care license. DONE AND ENTERED this 21st day of February, 2007, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of February, 2007.
The Issue Whether the Agency for Health Care Administration (AHCA) should deny Petitioner's application for renewal of a standard assisted living facility (ALF) license.
Findings Of Fact Although evidence was presented concerning all factual and legal issues, including mitigation, a recitation of all of that evidence is not necessary to a resolution of this case. Survey allegations and defense theories which were not proven will not be discussed, except as necessary, and only findings of fact which are dispositive will be made. AHCA is the state agency for quality control and licensing of ALFs. In order to ensure quality control of such facilities, AHCA conducts annual, biennial, and follow-up surveys. It also conducts complaint investigations as needed. Peggy Watkins and Timothy G. Watkins, Sr., hold a standard ALF license to operate Watkins Health Center, which they own. They held such a license and operated that facility throughout the 1996-1998 biennial licensure period. This case arises upon the denial of Watkins' renewal application for a standard ALF license. The renewal application was denied on the basis of deficiencies found by AHCA surveyors during the biennial licensure period. The reasons for denial are set out in the April 15, 1999, amended denial of renewal application letter which states the reasons for denial as: . . . It has been determined by the Agency for Health Care Administration that your application does not meet or comply with the standards as an ALF pursuant to Chapter 400, Part III, Florida Statutes (F.S.), and Chapter 58A-5, Florida Administrative Code (F.A.C.) Further, the licensee has committed an intentional or negligent act which materially affects the health and safety and walfare [sic] of the residents of your facility. See 400.414(1)(a), Florida Statutes Suppelment [sic] (1998). This specific basis for this determination is: The administrator failed to adequately supervise residents and endangered the lives of the residents at your facility. The facility failed to meet minimum licensure standards pursuant to Section 400.414(1)(e) and (i), F.S., as evidenced by two repeated class II deficiencies, eight repeated class III deficiencies cited by the Agency between June 11, 1996 and October 9, 1998, during biennial and follow-up surveys, and complaint investigations. Petitioner contends that all or some of the cited deficiencies did not exist, were merely record-keeping flaws, or otherwise were not so serious as to require denial of the renewal application. Petitioner also asserts that all deficiencies were corrected by the respective follow-up surveys; that if a follow-up survey had been conducted after the October 1998 biennial survey, those deficiencies also would have been found to have been corrected; and that since a final follow-up survey was not conducted, the October 1998 survey results should not be used against Petitioner for purposes of denying the standard license renewal. In making surveys and investigations, AHCA follows a team approach. Surveyors on a team individually observe and note flaws and tentatively assign "tag" numbers to them, based on categories of deficiencies. Under each tag, all flaws in that category which are observed on that date are described with specificity. Members of the survey team write-up their individual observations and then meet together to discuss the flaws before the team finalizes the tagging and classing of all observations, with Class I being the most severe type of defect and Class IV being the least severe type of defect. See Section 400.419(1)(b), Florida Statutes, as set out more fully in the following Conclusions of Law. Complaint investigations may be done by a team or by only one surveyor. Although it is axiomatic that some subjectivity will be inherent in tagging and classing of violations, it is found, upon the evidence as a whole, that all surveyors who testified herein were adequately trained and professionally motivated within statutory and rule standards for surveying. Having different surveyors participate on different complaint investigations and surveys contributed to a fair assessment and diminished the possibility of unfairness through any individual surveyor's improper motive or subjectivity. It is further found that the surveyors herein appropriately followed survey protocols by using samples and stating percentages instead of tracking each specific resident or bedroom or bathroom from survey to survey. The utilization of sampling and percentage methodology is fairer to a facility than the tracking method proposed by Petitioner because the sampling and percentage methodology does not factor-in either a facility's consistent failures or consistent successes in any single location within the facility and because it provides a better overview of whole-facility compliance. In making these following Findings of Fact, I have not considered a survey tag or violation severity classification to have been proven without direct testimony by at least one surveyor who observed the deficiency on the date specified. The mere fact that a survey report contained a specific tag and class and that the same survey then became a business record of the Agency is not sufficient to establish that the deficiency actually existed. In addition to surveyors who evaluated Watkins during the biennial licensure period, AHCA presented the testimony of John Morton as an expert in regulation and operation of ALFs. His testimony sometimes differed from the on-site surveyors in ranking of various deficiencies, but overall his classifications were substantially the same. In considering Mr. Morton's testimony with regard to tags and classifications of deficiency, I have considered that he has been employed as a surveyor by the Agency for 20 years as a health facility evaluator, that he is a State-certified ALF administrator, and that he is a federally-certified quality control supervisor. While his opinions have been considered in determining the reasonableness or unreasonableness of the on-site surveyors' tags or classifications for specific deficiencies, Mr. Morton's opinions have not been applied to raise or lower the classifications assigned by the surveyors because Mr. Morton did not actually participate in any survey of Watkins. Watkins housed mentally ill residents throughout the 1996-1998 biennial licensure period. It was stipulated that these residents sometimes behave in bizarre ways, often require psychotropic medications, and are unpredictable, scatological, and unsuccessful at using restrooms. 3/ In 1995, AHCA began to create a licensing process for "limited mental health" resident facilities, pursuant to Section 400.4075, Florida Statutes (1995). The Agency acknowledged that Petitioner applied for such a license in April 1997. Its licensing officer, Ms. Huff, testified that the Agency "put a hold on such licenses." No legal authority for this "hold" was cited. The Agency contends that it sent Petitioner a request for further applicant information in October 1997 and never received the information. Petitioner contends that Mr. and Mrs. Watkins never received the Agency's request. The Agency failed to demonstrate the contents of its request for further information, and clearly, if sent, the October 1997 request was not sent to Petitioner's owners within 90 days of receipt of Petitioner's April 1997 application. Surveys, complaint investigations, and follow-up surveys of Watkins, pursuant to its 1996-1998 biennial standard license, were conducted by the Agency on June 11, 1996; July 31-August 1, 1996; September 5, 1996; October 18- 20, 1996; October 27, 1997; November 10, 1997; January 27, 1998; May 4, 1998; June 15-16, 1998; and July 6, 1998. On October 8-9, 1998, a biennial survey was conducted. It was not established that the Agency targeted Watkins for more investigations and surveys than other ALFs. Agency personnel had no control over when complaints were made against Watkins, which complaints required Agency investigation, and once the Agency had cited Watkins for a deficiency(ies), surveyors were required to return timely for compliance follow-ups until the biennial survey. On June 11, 1996, the Agency conducted a survey of Watkins. In the course of that survey, surveyor Sandra Holbert observed five residents taking food and drink off discarded dining trays and consuming it themselves. A staff member was present and did not intervene. Ms. Holbert observed the five residents return to the kitchen door and receive additional portions. She interviewed residents and found that they knew they were free to get second portions if they desired. The survey team correctly recorded this deficiency as a Class II, Tag A700, Resident Care Standard violation. The other tags cited for the June 11, 1996, survey on the June 18, 1996, survey report were not proven. On July 31-August 1, 1996, the Agency conducted a complaint investigation of Watkins. Surveyor Richard G. Glover reviewed Watkins' staffing and found it to be deficient. The minimum full-time equivalent staff (FTE) hours per week required for Watkins' resident census were 288, and the actual hours posted were 260. Despite explanations then, and at hearing, by Administrator Peggy Watkins that her time when working as a staff person was overlooked or ignored by Mr. Glover, I find more credible Mr. Glover's testimony that on July 31-August 1, 1996, Mrs. Watkins was unable to explain when the current work schedule had changed and that even if he added in the hours Mrs. Watkins had told him she worked, the total hours would not match the FTE requirements. Mr. Glover concluded that there were no time sheets nor payroll cards present in the facility on the date of his visit to support Ms. Watkins' contention. This deficiency was recorded as a Class II, Tag A505 (later re-numbered A507) Staffing Standards violation on the August 15, 1996, survey report, and proven at the hearing. The August 15, 1996, report also recorded that two resident bedrooms had broken windows: in one broken window, the shards of glass had been taped with gray tape, and in the second broken window, the shards of glass remained in the pane. This situation was classified on the report as a deficiency under Tag A705, Resident Care Standards, but it is unclear from Mr. Glover's testimony whether he personally saw the broken windows on July 31-August 1, 1996. On September 5, 1996, the Agency conducted a follow- up investigation/survey of Watkins. In the course of that survey, Mr. Glover again reviewed Watkins' staffing and found that it was deficient. The minimum hours, per week, required for the resident census at that time were 288, and upon the same type of review as noted in Finding of Fact 19, above, it was verified that the actual hours worked were 279. Weighing the credibility of Petitioner's several witnesses against the surveyors' contemporaneous request for, and the contemporaneous absence of, actual timesheets, I find that this deficiency was fully established as a repeat Class II Tag A505 deficiency on September 5, 1996. Also on September 5, 1996, Mr. Glover personally observed that two resident bedrooms had broken windows. In one broken window, the shards of glass had been taped with gray tape. In the second broken window, the shards of glass remained in the pane. He recorded this deficiency under Tag A705, Resident Care Standards. He noted the broken windows as a repeat of the same Class II deficiency found on the July 31- August 1, 1996, complaint investigation. Also included under Tag A705, were the September 5, 1996, observations by Mr. Glover of bedroom lights being out and exposed overhead lights. During the same survey, Mr. Glover identified the need for a preventive maintenance program to prevent grease build-up contamination in the vent over the kitchen range from falling into the food on the range. Without direct proof of broken windows on July 31-August 1, 1996 (see Finding of Fact 20, above), it is not possible to label the broken window on September 5, 1996, as a "repeat" deficiency. However, it is specifically found, pursuant to Mr. Glover's direct testimony, that the broken windows, defective lights, and greasy stove existed on September 5, 1996, constituting a Class II, Tag A705, Resident Care Standards deficiency at that time. On October 18-20, 1996, during a follow-up investigation, Mr. Glover noted that both the A505 staff deficiency and A705 grease build-up situation had been corrected. On October 27, 1997, the Agency conducted a complaint investigation of Watkins. Surveyors Ana Lopez- Edwards and Mr. Glover tagged and classified three deficiencies. The ALF license was not posted or located. This was Tag A003, Class III, a Facility Record Standards deficiency. Advocacy information, including the Resident Bill of Rights, was not posted, and this was tagged as A201, Class III. They found no documentation that residents were receiving, at admission, packets of rules and regulations, as required by law. This was classified as Tag A308, Class III, because, by inference, it was a denial of the rights of the residents, or the residents' representatives, to be aware of, and to function in, their surroundings. These deficiencies certainly presented an impediment to residents lodging complaints or seeking third party intervention. Surveyors also cited and directly testified to the following specific observations on October 27, 1997: twenty percent of resident bedrooms contained non-operational overhead lights, which were frequently uncovered. One fixture had a broken bulb with an exposed lighting element. The concern with the light fixtures was that a resident could stick his hand into the exposed lighting element. Two bedrooms and three bathrooms had a strong urine odor. Thirty percent of the bedrooms had no window covering. Other bedrooms had curtains only partially covering the windows. One bathroom had a stained window which partially exposed any resident in the bathroom. Fifty percent of the bathrooms were not adequately cleaned. Seventy-five percent of the bathrooms contained no soap or towels. Two bathroom commodes were non-functional. Surveyors also found that the hot water temperature in one resident bathroom was 96 degrees Fahrenheit, when the hot water temperature is required to be between 105 degrees and 115 degrees Fahrenheit. Many of the foregoing specific flaws had been raised on previous survey reports, but only the lighting deficiencies and window problems were observed previously and on October 27, 1997, by testifying surveyors, so as to prove- up repeated specific flaws. Nonetheless, since all the foregoing flaws which were observed on October 27, 1997, fit within the specifications for Tag A705, Resident Care Standards, I am satisfied that a "repeat" Class III, A705 deficiency has been proven for October 27, 1997. On October 27, 1997, a Class III, A902 Tag, Maintenance and Housekeeping Standards, was correctly assigned to the absence of drawer pulls and other furniture deficiencies in many bedrooms. Additionally, on October 27, 1997, Tag A1010 was validly assigned a Class III, Physical Plant Standards deficiency, in that 50 percent of the bedrooms were without reading lamps. On this same survey, surveyors found that one resident bathtub was not equipped with a required safety handrail. The Agency validly cited this deficiency under Tag 1018, Physical Plant Standards, as a Class III deficiency. On November 10, 1997, a complaint investigation was performed. Minimal testimony was presented, and no deficiencies were proven for this date. On January 27, 1998, a follow-up survey of Watkins occurred. At that time, surveyors cited Watkins under Tags A003, A201, A705, A902, A1001, A1018 and A1022 as uncorrected from the October 27, 1997 date, and cited additional deficiencies as being out of compliance with State Standards under Tags A200, A700, A702, A703, A706, A1002, and A1016, all of which were cited as either Class II or Class III deficiencies, some of which were allegedly repeat deficiencies. The only direct evidence as to the validity of these January 27, 1998, citations was introduced through the testimony of surveyor Ana Lopez-Edwards. Ms. Lopez-Edwards testified to the presence of strong urine odors on January 27, 1998, and to a "musty" smell about the entire facility on that date. This direct evidence only proves-up a very small portion of the several flaws listed to make up the citation of a repeat Tag A705, Resident Care Standards. Without more, that entire tag assigned on January 27, 1998, is not proven and it cannot legitimately be classified as a repeat Class III deficiency for that date. Ms. Lopez-Edwards also verified that during the January 27, 1998, survey, she had observed a Watkins resident kneeling in a public road that abuts the property. This is a paved road with numerous speed bumps designed to slow down vehicular traffic. Ms. Lopez-Edwards alerted one of Watkins' staff members to the resident's peril. The staff person told Ms. Lopez-Edwards, "That's Mr. ---, he does that all the time." The staff person then walked away without intervening to remove the resident from the road. On January 27, 1998, surveyors classified this incident under Tag A700 as a Class III deficiency. At hearing, Ms. Watkins admitted that the resident was at risk while in the road, but contended that he was actually to the side of the road when observed by Ms. Lopez- Edwards. Ms. Watkins testified that, "Now you ask was that health, a risk for him per se, being in the road I would say, yes, but this is what he does constantly." Apparently, this particular resident constitutes both a "wanderer" and a religious devotee. While ALF residents are entitled to visit outside the facility and to practice their freedom of religion, the ALF has an obligation to protect them from inadvertent self-injury. The evidence is clear that although rural, the paved road passing Watkins represents a danger to this potentially self-injurious resident, and the ALF was deficient in not intervening to protect him. The citation of this incident under Tag A700 as a Class III, Resident Care Standard deficiency was appropriate. Although the specific incident was not a "repeat," the Tag was a "repeat" of June 11, 1996. On May 4, 1998, a follow-up survey and new complaint investigation was conducted. At that time, Watkins' logbook stated that a resident had disappeared at some time after 8:00 p.m. on April 20, 1998. The logbook did not mention any notification to the administrator, neighbors, or police. The logbook further stated that at 3:30 or 4:00 a.m., April 21, 1998, the resident returned and was at Southwestern State Hospital in Thomasville. It apparently was unclear from the log book whether this patient was picked up at Southwestern State Hospital in Thomasville, Georgia, or was taken there by Administrator Peggy Watkins after his return, but Ms. Watkins' testimony concerning the incident was as follows: Q: With regard to the resident named M.T. having disappeared back in 4/98, are you familiar with that incident? A: Yes. Q: One it was - was the resident in fact - were his whereabouts in fact unknown? A: At that particular time, yes. Q. All right. And once that determination was made, what action was taken: What action was taken, if any? A: Well it wasn't on my shift, but it was told to me that she called, she reported him missing. Q: To whom? A: To the sheriff's department. Q: By calling 911? A. Yes, by calling 911 she reported him missing. . . And probably that morning about 4:00 that morning, they called and stated his whereabouts. And I went after him probably around 7:00 that morning. Clearly, Ms Watkins admitted leaving the patient in police custody an additional three hours. The Agency validly tagged this as a Class III, Tag A700, Resident Care Standards, deficiency. The A700 classification makes it a repeated tag. Also in the course of the May 4, 1998, survey, Mr. Glover observed, and correctly assigned, a Tag A705 Resident Care Standards Class III deficiency because an east bathroom light was inoperable; a second floor bedroom did not have a light bulb cover for the overhead fan light; and the second floor bedroom had no window covering, thus exposing the resident within. Some of the tag components are repeats; the tag itself is a repeat. Mr. Glover also assigned yet another Tag A705, Class III repeat deficiency for findings that included 20 percent of the resident bedrooms observed having non-operational overhead lights or uncovered overhead lights and one fixture with a broken bulb and an exposed lighting element; two bedrooms and three bathrooms with strong urine odor; and 30 percent of the bedrooms observed having no window covering while others had curtains that only partially covered the windows. So as to be fair to the facility, Mr. Glover and other surveyors tested the bedroom lights during the survey, both from the wall switches and the pull cords in each of the rooms they observed. It is immaterial that the defective bedrooms and bathrooms observed for the repeat deficiency ratings on May 4, 1998, may not have been the same bedrooms and bathrooms as were found defective when this problem was cited previously. Sampling is within survey protocols, and facilities have the obligation of the whole physical plant meeting standards. A complaint was initiated by the Jefferson County Health Department, and on June 15-16, 1998, the Agency conducted an investigation. By observations and interviews on that date, Mr. Glover concluded that a repeat Tag A705, Class II, Resident Care Standards citation was appropriate because the facility was not being maintained in a safe, sanitary manner ensuring the safety of residents and their physical well-being. This was proven by direct evidence as follows. Temperatures were measured at 6:40 p.m. on June 15, 1998, and bedrooms were found to be between 88 degrees and 92 degrees Fahrenheit. Agency standards provide that residents' rooms may not exceed 90 degrees Fahrenheit. Two bedrooms were missing ceiling tiles and had damaged screens. The air conditioner compressor was non-operational. Ms. Watkins advised Mr. Glover that the facility's air conditioning had been off since June 11, 1996, and that she was having difficulty getting a repairman to come. In Mr. Glover's opinion, Watkins had an obligation to remove residents to a cooler environment once the temperature hit 90 degrees Fahrenheit. On June 16, 1998, the second story reception room light was flickering on and off, indicating a possible short circuit. There also were at least six residents in the common area, smoking cigarettes, with no sprinkler system in place. Watkins has a "no smoking" policy, which clearly was not being enforced by its staff. Mr. Glover was particularly concerned about the electrical system. On July 6, 1998, the Agency conducted a second follow-up to its June 15-16, 1998, complaint investigation. In the course of that survey, Mr. Glover observed that 50 percent of the bathrooms in the facility needed cleaning between the hours of 9:00 and 10:30 a.m.; a rear bathroom located in the single-story building had no hot water accessible to the residents; one bathroom commode was found to be non-functioning at 9:30 a.m.; hot water in the bathroom located on the first floor of the two-story building recorded a water temperature of 80 degrees Fahrenheit; and approximately twenty-five percent of the resident bedrooms had a musty odor. These combined defects were validly assigned a repeat Tag A705, Class III deficiency. On July 6, 1998, and referring back to the May 4, 1998, survey, the team found that the east bathroom light remained inoperable; the second floor bedroom still did not have a light bulb cover for the overhead fan light; and a second floor bedroom still had no window covering. These deficiencies were also validly classified as a repeat Tag A705 Class III deficiency. On October 8-9, 1998, when four surveyors conducted the biennial/renewal survey of Watkins, the facility had a census of 34 residents, 25 of whom were limited mental health residents. Under Tag A006, the Agency cited this as a Class III, absence of license deficiency. However, due to the confusion regarding the status of Watkins' limited mental health resident ALF license application, this citation is found to be without validity. In October 1998, under Tag A100, the Agency cited Watkins with a Class III deficiency for not having its fiscal records on the premises. However, since it was shown that the fiscal records could have been made available at the time of the survey from another location, I find that this citation also lacks validity. In October 1998, under Tag A203, Watkins was cited with a Class III deficiency for failure to maintain adequate written admission and discharge records. This deficiency was substantiated through Nurse Huff's observations, interviews, and testimony. However, this information was made available and conformed in the course of the survey, and therefore should not count against Watkins in this proceeding. In October 1998, under Tag A206, surveyors cited Watkins for having a total of 28 facility incident reports between January 1, 1998 and September 15, 1998, without having documented any prevention or intervention measures to prevent reoccurrences. In fact, 16 out of the 28 reports constituted reoccurrences. All of this information was transcribed from facility records. Therefore, I find this deficiency cited as a Tag A206, Class III deficiency to be accurate and proven. In October 1998, under Tag A208, Watkins was cited for failure to develop a management plan approved by the Office of Emergency Management for Evacuations and Disasters. At formal hearing, however, Watkins demonstrated through Alternative Approaches to Life Safety Worksheets and Fire Drill Reports that it had consistently held regular fire drills. Although regular fire drills do not satisfy all parts of the required standard, they somewhat mitigate the situation, so that a Class III citation would not be in order. In October 1998, under Tag A213, Nurse Huff noted that Watkins' personnel records for its staff were inadequate and not current. Two staff members, among the facility's eight employees on that date had no personnel files at all, and six out of the eight staff members did not have various types of required training documented in their personnel files. One staff member had previously been diagnosed with tuberculosis, and no negative test update was available in her personnel file. At hearing, Watkins produced all missing personnel records, including tuberculosis, HIV/AIDS training, training in self-administration of medicines, First Aid/CPR certifications, and ALF training, but with very few exceptions, none of the required training or medical clearances were obtained by staff members prior to the October 1998 biennial survey. Most such records were obtained by the employees after the October 1998 survey. Some were even earned after the October 1998 survey. Watkins asserts that securing these certifications within the 60 days' correction period provided for on the survey form was sufficient compliance with State standards so as to preclude using this deficiency against Watkins in this proceeding. I find otherwise. Not only was Watkins unable to demonstrate record compliance on the date of the survey, but many of its staff were uncertified in important categories on the date of survey, thus exposing residents to inferior care and safety up to the date those staff members finally became certified. Assigning a Tag A213, Class III to this deficiency was appropriate and valid. Under Tags A301 (rated Class III), A302 (rated Class III), and A305 (rated Class III), Ana Lopez-Edwards observed and described deficiencies concerning residents' admission height and weight recordation, contracts not signed by residents upon entry into the facility, and absence of required demographic data, respectively. Only the A301 deficiency, failure to record initial heights and weights in a reasonably accessible manner were proven to present even a potential or indirect threat to residents, which defines a Class III offense. The other flaws were paperwork problems, worthy of a Class IV citation at the worst. In October 1998, under Tags A401 and A404, the Agency cited Watkins for two Class III deficiencies arising out of the failure to have six out of eight resident health assessments performed and on file within the time frame established by statute and rule. This citation appears to be a duplicate citation, and at hearing, mitigation was demonstrated due to the refusal of health care professionals to perform any health assessments until such time as a resident qualifies for Medicare. At worst, this citation should constitute a single Class III violation. In October 1998, under Tag A406, the Agency cited Watkins with a Class III deficiency in that out of a sample of eight residents, there was no documentation on those residents' capacity to "self preserve." However, at hearing, Petitioner demonstrated through Alternative Approaches to Life Safety Worksheets and Fire Drill Reports, a consistent history of regular fire drills and recording of residents' ability to evacuate timely. The issue then became whether Watkins' failure to maintain this information in an accessible place clearly related to each respective patient so that it could be effectively used in case of emergency should be cited as a Class III deficiency. I view this as a Class IV or "paperwork" offense at worst. Although the Agency cited Watkins in October 1998, under Tag A409, for two inappropriate resident placements, it was demonstrated at hearing that there was only one inappropriate placement and that was a paperwork error corrected immediately by the physician who had made it. Therefore, this citation was invalid. The minimum staff hours for the resident census in October 1998, were 288 hours per week. The actual hours staff worked in that week was 279. Surveyors found that Watkins was under-staffed by nine hours for the week. Watkins knew from long experience that its necessary FTE hours were 288. Surveyors validly cited this as a repeat deficiency under Tag A507, Class II, Staffing Safeguards. Considering the content, weight, and credibility of Watkins' several witnesses against the Agency's witnesses' testimony and its surveyors' contemporaneous request for, and the absence of, actual timesheets on the date of survey, I find that this repeat deficiency was fully proven. In October 1998, under Tag A511, Watkins was cited with a Class II deficiency, based on staff interviews and a record review, for frequently operating without any staff on duty who are certified in First Aid, including CPR. I find this survey citation to be valid for the reasons given in Findings of Fact 50-53 and 58, above. In October 1998, under Tag A512, a Class III deficiency was cited, the core of which was that various staff members, particularly food staff personnel, did not have documentation of freedom from tuberculosis on an annual basis on file with the facility administrator on the date of the survey. At hearing, some staff were able to demonstrate prior tuberculosis screenings, while others were not. I find this survey citation to be valid for the same reasons given in Findings of Fact 50-53, above. In October 1998, under Tag A513, Watkins was cited for a Class II deficiency due to its failure to appoint in writing a staff member trained in First Aid and CPR to act in the absence of the administrator. This citation was made upon direct observations by qualified surveyors, who saw an undated appointment for a person without CPR certification documentation. At hearing, Watkins was able to demonstrate that Etta Brinson had been timely appointed, in writing, but had been certified in CPR on November 13, 1998, after the survey. Although there was some evidence that certification is good for three years, it was not sufficient to show that Ms. Brinson's November 13, 1998, certification renewed one from 1995. I find this citation to be valid for the same reasons given in Findings of Fact 50-53, above. On the same date, Watkins was cited under Tag A804, Class III, for failure to maintain nutrition and dietary standards and under Tag A1024, Physical Plant Standards, relating to fire safety reports within the last year. However, neither of these tags was proven. Insufficient evidence with regard to the absence of fire safety reports was presented by the Agency, and Watkins affirmatively demonstrated the existence of dietary menus and food substitution lists which had been prepared by a registered dietitian and were available within the facility on the date of survey. In October 1998, under Tag A901, upon surveyors' observations, Watkins was sited for a Class III deficiency based on peeling wallpaper in the dining room; missing ceiling tiles exposing the building's superstructure in two locations; unclean dining room chairs; and flies and spiders present elsewhere. Ms. Watkins confirmed that the ceiling tiles are light and that one had blown off the morning of October 9, 1999, and that she had been unable to replace it prior to the survey. This citation was adequately proven. In October 1998, under Tag A902, Watkins was validly cited for a Class III deficiency based on direct testimony of mildew on the main icemaker; 20 percent of the chests of drawers in the resident bedrooms missing handles; an expired health department sanitation certificate; and a cabinet in the dining room missing a door. In October 1998, Watkins also was cited for four Class III deficiencies under Tags A1016 for 15 percent of its water faucets not being labeled for hot and cold water; under Tag A1018 for an insufficient quantity of non-slip surface in the tubs and showers; under Tag A1021 for absence of a written infection control policy; and under Tag A1022 for using torn and threadbare linens. However, upon considering the evidence as a whole, I find that the criteria applied by the surveyors to these quantities and samples was so subjective as to have not proven any of these violations. Also, insufficient direct evidence was presented to prove-up a citation for Tag A1024 concerning fire inspection deficiency as a Class III deficiency in October 1998. In October 1998, Medical Standards Tags A600, A605, A606, and A610 were cited against Watkins for the following reasons established by observation. The A600 Tag was assigned because six out of eight sampled resident records offered by the facility did not have documentation of the method of management of medication administration. Staff was interviewed and was unable to provide further information regarding the appropriateness of the manner of medication, supervision, and assistance as required by State standards. A Class III deficiency was validly assigned. Also, in October 1998, surveyor Linda Huff, who was accepted as an expert on nursing, cited Watkins for multiple problems in the administration of medication. Watkins' medication administration record (MAR) or medicine log which Nurse Huff reviewed on that date, did not match the prescription bottle labels from which patient medications were being dispensed by facility staff. While she was not able to opine whether the bottle labels or the MAR were correct, Nurse Huff believed that the very fact that the prescription labels and the MAR were not identical exposed residents to dangerous drug mix-ups, dangerous drug interactions, and incorrect over- and-under medication by facility staff, who have only limited knowledge of medicine. On October 9, 1998, Nurse Huff had found, in Watkins' dispensary, a bottle labeled for Resident P.H. as Loperamide, two milligrams up to four times a day as necessary for diarrhea. However, this drug was not reflected in the MAR which Nurse Huff reviewed that day. Etta Brinson regularly assisted with medications at Watkins. She testified at hearing and identified Petitioner's Exhibit No. 4 as Watkins' MAR or medical log for October 1998. Ms. Brinson admitted that P.H. had been prescribed Loperamide and that she had not noted that drug on Petitioner's Exhibit No 4 because the drug had been prescribed "as needed." Nurse Huff considered this a safety issue. Nurse Huff had found a prescription bottle for Thorazine, made out to Resident W.C., during the course of the October 1998 survey. However, on the day of the survey, this prescription was not recorded in the MAR provided her by Watkins. On Exhibit P-4, identified by Ms. Brinson at hearing as Watkins' MAR, Chlorpromazine was indicated for W.C. Ms. Brinson admitted that she kept two different MARs for Resident W.C. Ms. Brinson stated that she kept one MAR in a separate folder, which she had not shown to Nurse Huff in October 1998. Ms. Brinson testified that she had made a second MAR for Resident W.C. and kept it in a separate folder because he had a prescription "as needed" for hiccups. Ms. Brinson understood that the drug Chlorpromazine was a medication for hiccups. Nurse Huff stated that "Thorazine" and "Chlorpromazine" are different names for the same drug and that it is a serious problem to refer to the same drug by two different names because only a doctor, pharmacist, or registered nurse would know that they are the same drug. In October 1998, Nurse Huff had found that Resident G.M. had in Watkins' dispensary a prescription bottle marked "Clozaril, 25 milligrams, take one i.p.o. twice daily." Exhibit P-4 and the MAR which Nurse Huff saw in October 1998, showed that Watkins' staff were giving Clozaril, 100 milligrams, one tablet twice-a-day and two tablets at bed for a total of 300 milligrams. It also stated "Clozaril 25 milligrams, take two tablets twice-a-day," which is another 100 milligrams. There was no bottle of Clozaril, 100 milligrams, in Watkins' dispensary in October 1998. Nurse Huff testified that Clozaril is a central nervous system anti- psychotic drug which must be administered in slowly increased doses over time. The MAR indicated that G.M. was receiving ten times the dose of Clozaril as was indicated on his prescription bottle. Nurse Huff found this to be a health hazard. Ms. Brinson admitted that she would be concerned if the prescription bottle for G.M.'s Clozaril did not match the MAR. In October 1998, Nurse Huff also considered the situation of Resident W.I. She found in Watkins' dispensary a prescription bottle for W.I. labeled for Glucophage, "500 milligrams, two tablets in the morning and one tablet at night." She also reviewed an Insulin vial labeled for W.I. for Insulin to be administered in the morning and at night. The MAR she reviewed in October 1998, showed W.I. receiving Glucophage only in the morning and Insulin in the morning and at night. Generally speaking, when Glucophage is prescribed, it is prescribed instead of Insulin. Nurse Huff interviewed staff to see if there were a problem and even interviewed W.I. because the administration of both Insulin and Glucophage together could have such an impact on W.I.'s health. During these survey interviews, Nurse Huff determined that W.I. was on a 1500-calorie diabetic diet and took Insulin and Glucophage only in the mornings. However, at hearing, Exhibit P-4 showed W.I. getting one 500 milligram Glucophage tablet morning and night and no Insulin at all. Ms. Brinson testified that W.I. was not administered Insulin in October 1998. Ms. Brinson also stated that Watkins had a policy of taking discontinued prescription medications to the pharmacy for disposal. If W.I. was not being administered Insulin as of October 1998, Watkins' policy of disposing of discontinued medications clearly had not been followed because W.I.'s Insulin vial was still there. Moreover, based on any construction of the discrepancies in the records, Watkins did not meet medical standards. With regard to the preceding medical record problems, related in Findings of Fact 68 through 74, the Agency recorded a Class II deficiency under Tag A605, Medication Standards, on the October 1998 survey. Upon all the evidence, this deficiency assignment was proven valid. In October 1998, under Tag A606, Watkins was cited with a Class II deficiency for, among other things, keeping improperly labeled samples of prescription medicines. Evidence showed that certain samples were being dispensed to a resident without that resident's name and the dosage being placed on the sample box as required by law. Therefore, a Tag A606, Class II deficiency was proven. Tag A610, citing a Class III deficiency for improper labeling or absence of labeling of over-the-counter drugs was insufficiently proven by direct evidence. Considerable time was expended in the course of the hearing directed to issues of a pervading urine smell, the existence or absence of regularly-scheduled recreational activities for the residents, and the general cleanliness of Watkins' facility, particularly the stove hood, which problems were cited on several surveys. From the credible evidence as a whole, I find that despite constant cleaning by at least one Watkins' staff member, one or more parts of the facility contained pervasive urine odors at all times. It was also established that although Watkins addressed stove hood cleanliness through an independent contractor cleaning it every six months, the stove hood frequently was less than sanitary. However, due to the methods of presentation of evidence herein and the necessity of categorizing multiple defective components by tags and classes, Finding of Fact 78 does not comprise a single tag or class of deficiency so as to establish "repeat" deficiencies, except where specifically noted in other Findings of Fact, above. The Agency's repeated citations of Watkins for failure to provide structured recreational activities to its residents was refuted by direct evidence. Satisfactory recreational activities were provided by Watkins' contract with Apalachee Mental Health for at least four hours every week day within Watkins' facility and for optional field trips of approximately four hours, one day per week. Watkins also affirmatively established through testimony and its Policy and Procedure Manual that it had an infection control policy with regard to urine, feces, and laundry in place, contrary to citations by the Agency. The Agency did not establish that the infection control policy had to be in writing. Watkins also affirmatively established that it regularly employed a handyman to repair damage caused by residents, and that on at least one occasion when Watkins was cited for having a hole in the drywall, on-going repairs were actually in progress on a bathroom. This situation, however, does not account for all of the times that disrepair of the facility was cited. Moreover, there being some discrepancy between the testimony of Peggy Watkins and Mr. Clark, the handyman, as to when this particular bathroom repair occurred, this bathroom repair "in progress" cannot form a basis to refute all citations for damage to the walls of the facility. Due to the November 17, 1998, date of the original intent to deny the license renewal application, the Agency conducted no follow-up survey after the biennial survey of October 1998. An Ombudsmen Report done within 32 days of the Agency's October 1998 survey, found that Watkins "appeared satisfactory" under its criteria, which are not the same as the State's criteria. Representatives of the County Fire Department and County Health Department testified that they believed that Watkins had the best interest of its residents in mind and did the best job it could of providing a reasonably satisfactory facility. Laura Harris, who is employed with Apalachee Center for Human Services as its Program Supervisor for the Jefferson County Outpatient Program, and who trains its surveyors, testified as an expert witness in the areas of staff training, administration training, and quality of care. In her opinion, the overall quality of care at Watkins ranks eight and one- half on a scale of one-to-ten, and the facility itself ranks seven on a scale of one-to-ten.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner's application for renewal of its standard assisted living facility standard license be denied and that the provisional assisted living facility license currently in use by Petitioner be revoked. DONE AND ENTERED this 17th day of February, 2000, in Tallahassee, Leon County, Florida. Hearings Hearings ___________________________________ ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative 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 this 17th day of February, 2000.
Conclusions Having reviewed the administrative complaint dated November 23, 2010, attached hereto and incorporated herein, Exhibit 1, and all other matters of record, the Agency for Health Care Administration (hereinafter “Agency”) has entered into a Settlement Agreement, Exhibit 2, with the parties to these proceedings, and being otherwise well-advised in the premises, finds and concludes as follows: It is ORDERED: 1. The attached Settlement Agreement is approved and adopted as part of this Final Order, and the parties are directed to comply with the terms of the Settlement Agreement. 2. Respondent shall pay, within thirty (30) days of the date of rendition of this Order, an administrative assessment in the sum of five thousand dollars ($5,000.00). 3. Checks should be made payable to the “Agency for Health Care Filed May 9, 2011 4:10 PM Division of Administrative Hearings Administration.” The check, along with a reference to this case number, should be sent directly to: Agency for Health Care Administration Office of Finance and Accounting Revenue Management Unit 2727 Mahan Drive, MS #14 Tallahassee, Florida 32308 4. Unpaid amounts pursuant to this Order will be subject to statutory interest and may be collected by all methods legally available. 5. The licensure status of Respondent is hereby determined to be Conditional commencing June 3, 2010 and ending June 24, 2010. 6. The Respondent’s request for an Administrative proceeding is hereby withdrawn. 7. Each party shall bear its own costs and attorney’s fees. 8. The above-styled case is hereby closed. DONE and ORDERED this 4 day of hy “G , 2011, in Tallahassee, Leon County, Fiorid A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY, ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW OF PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. Copies furnished to: R. Davis Thomas, Jr., Esq. Health Care Navigator, LLC 2 North Palafox Street Pensacola, FL 32502 Suzanne Suarez Hurley Senior Attorney Agency for Health Care Administration 525 Mirror Lake Drive N. #330H (U.S. Mail) St. Petersburg, Florida 33701 Interoffice Mail j2n Mills Agency for Health Care Administration Agency for Health Care Admin. Office of Finance and Accounting 2727 Mahan Drive, Bldg #3, MS #3 Tallahassee, Florida 32308 (Interoffice Mail) Revenue Management Unit 2727 Mahan Drive, MS #14 Tallahassee, Florida 32308 Interoffice Mail Barbara J. Staros Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 Interoffice Mail CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of this Final Order was served on the above-named person(s) and entities by U.S. Mail, or the _-— method designated, on this the g day of , 2011. Richard Shoop, Agency~€lerk Agency for Health Care Administration 2727 Mahan Drive, Building #3 Tallahassee, Florida 32308-5403 (850) 412-3630
Findings Of Fact Respondent, Jesse Leon Thomas, Jr., was first hired by the School Board of Pinellas County in January of 1974 and before his demotion, had served as a maintenance supervisor, supervising sixty-seven people for between five and five and a half years. In February, 1988, Respondent's driver's license was revoked for a period of five years. The order of revocation provided after one year that he could apply for an essential use driving permit for the purpose of driving in connection with his work. Within the office of the Executive Assistant Superintendent for Institutional Services of the Pinellas County School System, maintenance work is divided into five general sections. These include the Technical Engineering Section, the Capital Improvement Force, the SJO section, the DEIS section, and the Emergency/Service section, of which three are headed by maintenance supervisors. Respondent Thomas, at the time of his demotion, was serving as the maintenance supervisor of the Capital Improvement Force. When demoted as a result of the loss of his driver's license, he was assigned the position of general foreman, under the maintenance supervisor of the Emergency- Service section. Arthur M. Spinney is Director of Maintenance for the Pinellas County Schools and serves directly under the Executive Assistant Superintendent for Institutional Services. According to Mr. Spinney, a maintenance supervisor, supervises primarily trades people (roofers, carpenters, painters, etc.). As maintenance supervisor, Mr. Thomas reported directly to Mr. Spinney. All maintenance supervisors are issued School Board owned motor vehicles to assist in the performance of their duties. The Pinellas County School Board Maintenance Department has a twenty-four hour a day response capability, which requires that one of the several maintenance supervisors within the system be on call during off-duty hours for approximately ten days a month. The on-call maintenance supervisor is expected to insure appropriate repair personnel are dispatched to the scene where needed, and if necessary, to go to the job site himself, in a supervisory capacity. Mr. Spinney expected the maintenance supervisor of the Capital Improvement Force to visit each job site at which an active project was being accomplished by that force at least twice a week. The maintenance supervisor was charged with the responsibility of making separate, unscheduled visits to job sites on an unannounced basis as well. Capital Improvement Force projects are those on which normally more than sixteen man-hours of labor are expended and which generally cost between four and five thousand dollars. Some projects may go considerably higher. The projects are often located at more than one job site, and may be located at any school property throughout the county. More than one job is accomplished at a time. Within the Capital Improvement Force, the maintenance supervisor is assisted by a general foreman, who is assisted by several trades foremen. The maintenance supervisor is not expected to personally check daily on each project being supervised directly by a trades foreman. He has overall responsibility to insure that the general foreman and the trades foremen supervise the workers properly and is expected to make separate and unscheduled visits to the job sites to insure that the progress is appropriate. Mr. Spinney did not take immediate action when Mr. Thomas first advised him of the situation involving the driver's license. However, when presented with proof of the revocation action, effective April 4, 1988, he demoted Mr. Thomas from the position of maintenance supervisor of the Capital Improvement Force, to the position of general foreman of the Emergency Task Force. The Emergency Task Force generally works on projects involving less than sixteen man-hours. Mr. Spinney does not expect Mr. Thomas, in his capacity of general foreman of the Emergency Task Force, to routinely visit job sites because they would normally be completed before he could conduct an inspection. He is required to visit the sites on an as-needed basis and make periodic checks, but can go with the individual trade foreman. Mr. Spinney is prepared to recommend Mr. Thomas for promotion to a maintenance supervisor position as soon as his driving license is restored and a maintenance supervisor position comes open. Mr. Thomas contends that his completion of the routine office jobs while a maintenance supervisor left him only approximately eight hours per week for actual job site visits. Because of his routine office duties, and other duties such as special studies and teaching of training sessions, Mr. Thomas was rarely able to visit the job sites. As a matter of fact, during the five years immediately prior to his demotion, Respondent recalls going to a job site after regular hours on only two occasions and on both of those visits, his presence was not actually necessary. In fact, he has not driven a county vehicle home since July of 1987; Possession of a driver's license is not listed as an essential criteria in the job description for maintenance supervisor. In some other jobs such a requirement is listed in the job description. When in 1979, Mr. Spinney concluded that a driver's license requirement should be included in the job description for maintenance supervisor his efforts to effect that change were disapproved by the school board. As maintenance supervisor, Mr. Thomas dispatched qualified workers to job sites, a function he could fulfill by the use of a telephone or radio. When on call, he could be reached by telephone, mobile radio, or beeper, and when it was necessary for him to go to a job site, he could always travel with the general foreman or a trade foreman, who are in and out of the office, going to and from the various jobs sites on a continuing basis throughout the day. Any meetings he might have to attend as a maintenance supervisor are, almost without exception, conducted in the office where he worked. During the forty days after his driver's license was revoked, and before he was demoted, Mr. Thomas missed no calls requiring his presence due to his inability to drive. The acting maintenance supervisor, filling Mr. Thomas's position since his demotion, indicated he has visited job sites on very few occasions, due to the large amount of paperwork involved in the position. Since he has been serving as general foreman of the Emergency Services Section, Mr. Thomas has made more weekly visits to job sites than when he was maintenance supervisor of the Capital Improvement Force. All visits have been made as a passenger in a vehicle driven by another school board employee. Mr. Thomas's work record during the period of time he has worked with the school system has been outstanding. There is no indication that the demotion was a result of poor duty performance or other instances of misconduct. Mr. Spinney contends that Respondent's driving revocation adversely affected his ability to serve as a leader, and required his demotion from the job of maintenance supervisor, but he has been satisfied with the Respondent's leadership as a general foreman. Mr. David Jackman, in charge of the maintenance section's accounting department, has been twice convicted of driving while intoxicated. Even after his convictions, he was placed into that position and no disciplinary action was taken against him. This is explained by the fact that Mr. Jackman's job requires few visits outside the office. He can get to any meetings he is required to attend by riding with Mr. Spinney or someone else from the office. He was warned, however, after his second offense, that his conduct could affect his job. While no formal requirement exists in the job description of a maintenance supervisor that the incumbent possess a valid driver's license, the job requires that the incumbent visit the work sites on both a periodic and an unannounced basis. It would be difficult, if not impossible, to insure that visits were unannounced if the supervisor were required to rely on other employees for his transportation to the work site. Consequently, the incumbent must have the means of independent travel to effectively accomplish the requirements of the position.
Recommendation It is, therefore recommended that the demotion of Mr. Thomas to the position of general foreman, be sustained. Recommended in Tallahassee this 21st day of July, l98, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of July, 1988. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-2094 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. By the Petitioner: 1 - 2. Accepted and incorporated herein. 3. Accepted and incorporated herein. 4 - 6. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. 11 - 12. Accepted and incorporated herein. 13 - 15. Accepted and incorporated herein. 16 - 17. Accepted and incorporated herein. 18 - 20. Accepted and incorporated herein. By the Respondent: 1 - 2. Accepted and incorporated herein. Accepted and incorporate herein. Accepted and incorporated herein. Accepted. Accepted, but not complete in intent. 7 - 8. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Rejected as a misleading statement. 12 - 13. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. Accepted and incorporated herein. 17 - 18. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. 21 - 22. Accepted. Accepted. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Rejected as not supported by evidence of record. Accepted. COPIES FURNISHED: Bruce P. Taylor, Esquire School Board Attorney 1960 East Druid Road Post Office Box 4688 Clearwater, Florida 34618 Louis Kwall, Esquire 133 North Ft. Harrison Avenue Clearwater, Florida 34615
The Issue The issue in this case is whether Respondent engaged in an unlawful employment practice by discriminating against Petitioner on the basis of handicap, in violation of section 760.10, Florida Statutes, and, if so, the appropriate remedy.
Findings Of Fact Petitioner is a 37-year-old Caucasian male. Respondent is an insurance agency registered and licensed to do business in Florida and headquartered in Boca Raton, Florida. Respondent is a direct marketer of insured products, including health insurance policies, and non-insured products, such as lifestyle benefit programs and telemedicine. Respondent uses a call center model to market insurance products. At the call center, sales agents take calls from prospective clients and are paid a "base wage" plus commission. Since sales agents are paid a base wage, they must meet minimum sales requirements to help offset the fixed costs associated with their employment. Petitioner became employed at Respondent's Miramar call center as a sales agent starting on or about September 9, 2013. His employment duties entailed calling potential sales leads and selling non-major medical insurance policies over the telephone. The position for which Petitioner was hired did not have a specified term of employment, and Petitioner and Respondent did not execute an employment contract when Petitioner was hired.1/ Petitioner's work hours were from approximately 8:00 a.m. to 5:30 p.m., five days per week. Sales agents, including Petitioner, were paid $12.50 per hour, with a guaranteed salary of $500 per week, plus a commission on sales made. In late September 2013, Petitioner became ill. His illness manifested itself as shortness of breath and coughing. By late October 2013, his illness had progressed to the point that he was experiencing acute respiratory distress episodes. Petitioner testified that he experienced shortness of breath that, at times, made it "physically impossible" to talk on the telephone. However, he also testified that "I was on the phone doing what I was supposed to be doing, making calls and talking to potential customers, and I was doing it in a way in which other agents did it, which was normal and customary."2/ During his employment tenure with Respondent, Petitioner took time off work for medical appointments related to his condition, but he could not recall how many times, or for how long. There was no evidence presented showing that Respondent was aware of the specific reason for Petitioner's medical appointments. On October 30, 2013, the day he was terminated, Petitioner experienced a respiratory distress episode and had to use the nebulizer while at work. He also had experienced a similar episode at work approximately two days before and had had to use the nebulizer. Petitioner did not inform Respondent that he was experiencing shortness of breath, respiratory distress, or any other medical condition that interfered with his ability to perform his job. The persuasive evidence establishes that Respondent's human resources representative had witnessed the acute respiratory distress episode that Petitioner suffered the day he was terminated. However, there is no direct evidence that anyone with Respondent in a position (such as supervisors or managers) to make decisions about Petitioner's employment was made aware of his shortness of breath, acute respiratory distress episodes, or use of the nebulizer while at work. On October 30, 2013, Respondent terminated Petitioner from his employment. The evidence shows that at the time Petitioner was terminated, he was informed that it was due to inadequate sales production.3/ Petitioner testified at the hearing, on rebuttal, that when he was terminated, the manager who fired him "made a comment to me that I couldn't do my job, referring to the fact that I was short of breath on the phone, not to the——to a reference of low sales."4/ There is no other evidence in the record that Petitioner was told that he was being fired because he was physically unable to do his job. Petitioner testified that he did not recall having been informed, before his termination, that he was not meeting performance expectations. He testified that he did not know how his sales performance compared to that of other agents whose employment duties were the same as his. He testified that he did not believe he was the lowest-performing sales agent at the call center. He also testified that he believed he was the only person terminated that day. However, he did not articulate any specific factual or perceptual bases for these beliefs. At the time he was terminated, Petitioner asked to be given two extra days, until Friday of that week, to allow new medications he recently had been prescribed to be given a chance to work so that he could talk on the telephone without experiencing severe shortness of breath. Respondent declined to provide him the two extra days before terminating him. Petitioner had been employed with Respondent for approximately seven-and-a-half work weeks5/ when he was terminated. Petitioner testified that as of October 30, 2013, he was "disabled,"6/ although he did not know it at that time. He testified, persuasively, that he continued to have difficulty breathing after being terminated. Sometime after he was terminated, Petitioner was determined eligible for Supplemental Security Income ("SSI") benefits from the Social Security Administration, and eligible for vocational rehabilitation services from the Florida Department of Education, Division of Vocational Rehabilitative Services.7/ Petitioner asserts that even though he did not notify Respondent that he was disabled before he was terminated, he believes that Respondent's supervisors and managers perceived him being as disabled due to his respiratory distress episodes, shortness of breath, and use of a nebulizer while at work, and that they terminated him on that basis. However, as noted above, the evidence does not show that anyone in a position to make decisions about Petitioner's employment was aware of his health condition before Respondent terminated him. At the time of Petitioner's employment, Stephen Fingal was Respondent's director of enrollment and oversaw the sales department, including the call centers. Petitioner was among the employees Fingal supervised. Fingal testified that each call center sales agent was required to make a minimum of 12 "primary" insurance policy sales per week8/ in order to cover his or her $500 per week salary,9/ as well as the cost of "leads," which are generated through Respondent's commercial advertising programs, and break down to a fixed cost of roughly $1,500 to $2,000 per week per agent. The competent, persuasive evidence, consisting of Fingal's testimony and sales logs,10/ shows that Petitioner consistently failed to meet the minimum sales performance standard over the entire term of his employment with Respondent. During Petitioner's first week of employment, he was being trained, so made no sales. He made four total sales his second week of employment; no sales his third week of employment; one total sale his fourth week of employment; 17 sales of mostly ancillary policies his fifth week of employment; no sales his sixth week of employment; nine total sales his seventh week of employment; and no sales the week he was terminated.11/ The evidence does not establish a pattern linking Petitioner's lack of productivity to any documented episodes of shortness of breath or respiratory distress. Over Petitioner's entire tenure with Respondent, he sold a total of only 33 policies. Of these, only 15 were primary health insurance policies. By contrast, using the 12-sales-per week minimum performance standard, an agent whose sales performance level was marginally adequate would have sold at least 60 primary policies over a five-week period——approximately four times more than Petitioner sold over a six-and-a-half week period. To prove this point, Respondent presented the sales productivity information for two other sales agents, whose performance was characterized as "average," for the same time period as Petitioner's employment. These agents sold approximately two times more primary policies and three times more ancillary policies than Petitioner sold during the same period. On cross-examination, Fingal characterized Petitioner's comparative sales performance as "in the lower quadrant." When asked whether it was possible that 20 to 25 percent of the sales agents performed at a lower level than Petitioner, Fingal answered "probably not." Fingal testified, persuasively, that Respondent declined to give Petitioner the requested two additional days because he asked for them when he was terminated. By that point, Respondent already had determined, based on Petitioner's consistent failure to meet minimum performance standards over his entire employment term, that Petitioner was not going to be a productive employee.12/ Respondent does not hire part-time sales agents, and at the time Petitioner was terminated, there were no sales positions that did not involve speaking on the telephone. Additionally, at the time Petitioner was terminated, Respondent did not have any available non-sales positions into which Petitioner could transfer. Moreover, even if such positions were available, there was no evidence showing that Petitioner was qualified for them. In any event, the evidence shows that Petitioner never requested to be transferred to an alternative employment position that did not entail speaking on the telephone. Petitioner did request what he characterized as an "accommodation" of two additional days, but, as discussed above, Respondent declined because it had already decided to terminate him due to his consistently inadequate performance over the term of his employment. Petitioner posited that he was not the lowest performing sales agent, but he did not present any evidence to support that supposition. He also posited that he was the only sales agent terminated that day, but, again, did not present any evidence supporting that supposition. He did not present any evidence showing that non- disabled call center sales agents who performed at or below the same level as he performed were not terminated. He presented no evidence showing that Respondent subsequently filled his position with a non-disabled person. In fact, approximately ten months after Petitioner was terminated, Respondent substantially reduced its call center sales agent work force, closed the Miramar call center, and consolidated its call center operations at its Boca Raton location, in an effort to reduce the substantial cost associated with having call centers in multiple locations. This is consistent with Respondent's assertion that Petitioner was terminated because he was not a profitable employee and that Respondent was losing money in continuing to employ him.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 9th day of February, 2016, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of February, 2016.
The Issue : The issue in this proceeding concerns whether the Petitioner has been the victim of a discriminatory housing practice, in alleged violation of Sections 760.20 through 760.37, Florida Statutes (2007).
Findings Of Fact The Petitioner is a physically handicapped person. He resides in a residential unit (Unit 11C) in the Sea Cabins residential complex. The Petitioner is a full-time resident at Sea Cabins and is the owner of unit 11C. The Respondent is a Florida Corporation (not for profit) and is a homeowners association, as defined by Section 720.303, Florida Statutes (2008). Sometime in early May 2007, Nancy Maconi, the Petitioner's wife, placed a number of signs around the Sea Cabins property. The Respondent purports that there were approximately 13 signs. One of the signs was a designated handicap parking space sign for unit 11C. It was erected in close proximity to the Petitioner's Sea Cabins unit 11C. Thereafter, the Petitioner sought reimbursement for the cost of the signs from the homeowners association board of directors, the Respondent. The request was denied at a meeting of the board of May 11, 2007, with the minutes reflecting that the Petitioner had not requested nor been granted permission to install any signs, hence the denial at that point. Ms. Maconi testified at the hearing that she had asked the Respondent's manager for permission to install the signs, which the manager, Willa Merriott, denied. The action of the board at the May 11, 2000 meeting, however, is not in dispute. Thereafter, on approximately June 22, 2007, the attorney for the Respondent wrote the Petitioner requesting that the designated handicap parking sign be removed since it had not been authorized by the board, nor had any formal request for the installation of the sign been made. On June 23, 2007, the Petitioner responded to that letter by requesting that the board formally authorize the handicap parking sign. A letter from the Veterans Administration was attached to that letter to the effect that the Petitioner had a service-connected disability. The specific nature of the disability was not specified, however. In any event, the Respondent association acquiesced in the handicap parking sign at issue remaining in place and use while it investigated whether the Petitioner was actually entitled to a handicap parking space. The Petitioner was advised by letter of October 11, 2007, by the Respondent, that the handicap parking sign could remain in place while his application was pending. A series of letters then passed between the parties or their representatives in October through December 2007. Pursuant to its policy concerning the granting of handicapped parking spaces and the like, the association sought information on the nature of the Petitioner's disability or handicap. The Petitioner countered by taking the position that the association already had enough information upon which to make its decision. In any event, however, through this period, the Petitioner's designated handicapped parking space and sign remained in place in the original location where Ms. Maconi had placed it. The Respondent acquiesced in its presence and in the Petitioner's use of the handicapped space. Counsel for the Respondent received a letter dated January 3, 2008, from Paul E. Brooks, a Podiatrist, revealing for the first time the specifics of the Petitioner's disability. That is, he has an orthopedic condition which limits his ability to walk. This letter was received on January 8, 2008, and considered by the board of directors at a special meeting held January 28, 2008. At that meeting the board formally granted the Petitioner's application for a designated handicap parking space and voted to allow the sign already erected by Ms. Maconi to remain permanently in place. Due to a misunderstanding between the board and its counsel as to who should notify the Petitioner of the decision, the Petitioner was not actually notified of the decision until March. By letter of March 17, 2008, counsel for the homeowners' association wrote the Petitioner of the actions of the board regarding the sign.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the subject Petition for Relief in its entirety. DONE AND ENTERED this 27th day of January, 2009, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 27th day of January, 2009.
The Issue Whether the Flagler County School Board discriminated against Petitioner by failing to hire Petitioner based on his disability.
Findings Of Fact Respondent is the local government agency responsible for oversight of the public schools of Flagler County, Florida. Petitioner applied for two positions with the School Board. In December 2009, Petitioner applied for a job opening as a bus aide for handicapped students (Transportation Handicapped Aide position). On January 29, 2010, he applied for a lawn maintenance position at Flagler Palm Coast High School (Maintenance/Turf Care Worker position). On February 1, 2010, Petitioner received a letter from the School Board thanking him for his interest in the Transportation Handicapped Aide position, but informing him that the School Board had selected another applicant. On or about May 31, 2010, Petitioner received another rejection letter from the School Board, informing him that he had not been hired for the Maintenance/Turf Care position. Petitioner alleges that Respondent did not hire him for either position because he is “qualified deaf.” Prior to actually applying for the two positions, as part of the application process, Petitioner completed an on-line employment application with the School Board. Petitioner listed eight previous positions on his on-line application, including: dishwasher, assembler, part-time stacker, dock worker, warehouse/driver, part-time delivery driver, warehouse associate, and warehouse forklift operator. The previous positions listed on Petitioner?s on-line application did not involve working with children or lawn care. At the final hearing, Petitioner testified that he had been around deaf and blind students while attending the Florida School for Deaf and Blind. He also testified that he thought he could learn the lawn care maintenance position while on the job. Petitioner conceded, however, that his prior employment positions and experience did not involve working with children or lawn care maintenance. Qualifications the School Board required for the Transportation Handicapped Aide position included prior experience or training in the care of children, as well as knowledge of and ability to use crisis intervention and prevention techniques, CPR, and first aid. The Maintenance/Turf Care Worker position was not a beginning position where qualifications could be met by on-the- job training. Rather, the position required a state-certified pest control operator's license for lawn and ornamental plants or the equivalent, and a working knowledge of the rules and regulations on safe handling and application of pesticides, herbicides, and fertilizers. The position also required knowledge of athletic field dimensions and striping, and the ability to maintain a commercial irrigation system. Review of Petitioner's on-line application, in light of the qualifications for the two positions sought, reveals that Petitioner was not qualified for either position. In contrast, the successful applicants who were hired for the two positions possessed the required qualifications and experience. Ms. Parrella testified that, as secretary to the School Board's Director of Human Relations, it was her responsibility to monitor the applications for employment submitted for the two positions for which Petitioner applied. According to Ms. Parrella, Petitioner was not hired because he did not possess the required qualifications for the positions. Ms. Parrella further testified that the School Board would not discriminate against a person who was deaf if he had the qualifications for the position. She further explained that Petitioner's handicap or disability played no role in the decision not to hire him for the two positions. Ms. Parrella's testimony is credited. Petitioner testified that, at the time he filed the Complaint, he suspected that he had not been hired by the School Board because of his disability because he could not think of any other reason he was not hired. He admitted, however, that he had no personal knowledge as to the reasons why he was not hired. Petitioner also admitted during the final hearing that he did not list or possess all of the certifications or qualifications required for either of the two positions. In sum, Petitioner did not show that the School Board discriminated against him by failing to hire him because of his disability.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Complaint and Petition for Relief. DONE AND ENTERED this 17th day of May, 2011, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of May, 2011.
