The Issue The issues for determination in this proceeding are whether Respondent discriminated against Petitioner on the basis of a handicap, within the meaning of Section 760.10, Florida Statutes (2002), and whether the same alleged discrimination violated Section 448.045, Florida Statutes (2002).
Findings Of Fact Petitioner is a handicapped person. Petitioner is bipolar and has episodes of psychosis and occasional ideations of suicide and homicide. On January 14, 2003, Petitioner returned to work after an extended vacation, during which he suffered a psychotic episode and was diagnosed with his handicap. Respondent scheduled an in-office hearing, identified in the record as a "fit-for-duty hearing," because Respondent was concerned for the safety of Petitioner and other employees. Respondent denied Petitioner's request to postpone the hearing for one day to allow Petitioner to get back into "the swing of work routine." Petitioner requested 30 days of accrued personal leave. Respondent granted the request, and Petitioner was due back on the job on February 18, 2003. At the conclusion of the 30-day leave, Respondent granted Petitioner's request for medical leave. The medical leave began on February 18, 2003, and Petitioner was scheduled to return to work on July 3, 2004. Respondent's policy requires every employee that is on medical leave, including Petitioner, to be certified by a physician that the employee is fit to return to work, with or without reasonable accommodation. A physician's certification is a prerequisite for any employee on medical leave to return to his or her job after medical leave. During Petitioner's medical leave, Petitioner sought treatment from several physicians. As of the date of the administrative hearing, no doctor had certified Petitioner as fit to return to work because Petitioner consistently refused to take medication prescribed for his handicap. After going on medical leave, Petitioner received short-term disability benefits and, at the time of the administrative hearing, was receiving long-term disability benefits. The long-term benefits were scheduled to expire in August 2005. Petitioner is not contractually entitled to long- term disability benefits unless Petitioner is unable to perform all of the material and substantial duties of his regular occupation. When Petitioner's medical leave ended on July 3, 2004, Petitioner was not medically certified as fit to return to work. Petitioner refused to take medication prescribed for his condition and continued to receive long-term disability benefits. Respondent refused to accommodate Petitioner any further with additional leave. Respondent terminated Petitioner's employment on July 3, 2004.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order finding that Respondent did not unlawfully discriminate against Petitioner by convening a "fit-for-duty hearing" or by subsequently terminating Petitioner's employment. DONE AND ENTERED this 21st day of December, 2004, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 December, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Norman K. Wright 826 Grand Cayman Court Orlando, Florida 32835 J. Lester Kaney, Esquire Cobb & Cole 150 Magnolia Avenue Post Office Box 2491 Daytona Beach, Florida 32115-2491 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue to be determined is whether the infant, Zakeem Carter Lee (Zakeem), suffered a birth-related neurological injury as that term is defined in section 766.302(2), Florida Statutes (2018).
Findings Of Fact Zakeem was born on December 25, 2018, at Holmes Regional. He passed away shortly after birth. Zakeem weighed 2,425 grams at birth.
Findings Of Fact On February 15, 1977, Petitioner was employed by the City of Clearwater as a full-time firefighter. He became certified as a firefighter on April 21, 1977, and was issued certificate number 5374. After receiving an associate's degree from St. Petersburg Junior College, Petitioner became eligible to receive firefighters' supplemental compensation benefits on July 1, 1981. After receiving a bachelor's degree from Eckerd College, Petitioner became eligible to receive additional firefighters' supplemental compensation benefits on May 1, 1984. Until July 2, 1986, Petitioner received his supplemental compensation benefits according to the appropriate level. On July 2, 1986, a hearing was held before the City of Clearwater Pension Advisory Committee as to whether Petitioner was entitled to a job- connected disability pension for injuries that he received in firefighting related activity. Following a finding by the Clearwater Pension Advisory Committee that Petitioner was entitled to the disability, the City of Clearwater forwarded to Respondent a Notice of Ineligibility for Supplemental Compensation Benefits, reflecting an ineligibility date for Petitioner of July 2, 1986. Based upon the Notice of Ineligibility, as well as the fact that Petitioner had received a disability that could not be corrected to the satisfaction of the Respondent, Respondent voided Petitioner's certification as a firefighter and terminated his supplemental compensation benefits as of July 2, 1986. Petitioner elected a retirement plan option offered by the City of Clearwater under which he extended his termination of employment date by the amount of time due him for vacation, holiday pay, and one-half of his accrued sick leave. By utilizing the vacation and sick leave time to which he was entitled, Petitioner extended his termination of employment date to October 8, 1987. Between July 2, 1986 and October 8, 1987 Petitioner occupied the status of an employee on vacation or on sick leave, i.e., he was on leave with pay. He received a paycheck at the same time that other employees of the City of Clearwater received theirs, and his paycheck carried the same deductions that other employees would have in their checks. It is uncontroverted that although Petitioner received his disability on July 2, 1986, Petitioner has received compensation from the City of Clearwater on an uninterrupted basis encompassing the period from July 2, 1986 through October 8, 1987 for duties that he performed as a full-time firefighter for the City of Clearwater Fire Departments his employing agency.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered reinstating Petitioner's supplemental compensation benefits from July 2, 1986 through October 8, 1987 and directing that those benefits be paid to Petitioner forthwith. DONE and RECOMMENDED this 23rd day of October, 1987, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 1987. COPIES FURNISHED: William Gunter State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300 Fredric S. Zinober, Esquire Village Office Park, Suite 107 2475 Enterprise Road Clearwater, Florida 33575 Lisa S. Santucci, Esquire Department of Insurance 413-B Larson Building Tallahassee, Florida 32399-0300 =================================================================
The Issue The issues in the case are whether the allegations of the Second Administrative Complaint are correct, and, if so, what penalty, if any, should be imposed.
Findings Of Fact At all times material to this case, Respondent was an insurance agent, holding Florida license number A020887, and was licensed as a Resident Life, Health & Variable Annuity (2-15); Life (20-16); Life & Health (2-18); General Lines, Property & Casualty Insurance (2-20); and Health (2-40) agent. Respondent has been licensed in Florida since February 14, 1994, and has consistently met all continuing education requirements applicable to his licensure. At all times material to this case, Respondent was employed as an account executive by HRH of Southwest Florida, Inc. HRH of Southwest Florida, Inc., is a subsidiary of HRH, Inc., a large provider of insurance agency services. Respondent is not and has never been an officer, director, manager, or shareholder of HRH of Southwest Florida, Inc. HRH of Southwest Florida, Inc., provided insurance and risk management services to businesses. Insofar as is relevant to this case, HRH of Southwest Florida, Inc., offered to its clients both fully insured health benefit plans and partially self-funded health benefit plans. Fully insured health benefit plans are those in which an employer pays a premium (sometimes with an employee contribution) to an insurer, and health benefit insurance coverage is provided to participants in the plan. Petitioner has the responsibility for regulating fully insured health benefit plans sold in the State of Florida. Partially self-funded health benefit plans include those where an employer's funds (again sometimes with an employee contribution) are used to cover health expenses of plan participants. The employer's funds are collected by a third- party administrator responsible for paying claims out of the employer's funds, and for obtaining stop-loss insurance to cover claims in excess of the funds available from the employer. Properly created, partially self-funded health benefit plans may be exempt from regulation by state authorities under the provisions of the federal Employee Retirement Income Security Act (ERISA). In the April 2001, HRH of Southwest Florida, Inc., began offering to clients in Lee, Manatee, and Sarasota Counties, a health benefit product made available by Meridian Benefit, Inc. (MBI). MBI had no authorization to operate as an insurer in the State of Florida. Based on information provided to HRH of Southwest Florida, Inc., MBI was operating as a third-party administrator for partially self-funded health benefit plans. The information provided to HRH of Southwest Florida, Inc., initially came from Thomas Mestmaker and Associates, a managing general agency representing MBI, and was confirmed through information subsequently provided by MBI. The plans were presumed by Respondent to be exempt from regulation by Petitioner under the provisions of ERISA based on the information provided by MBI. According to the information provided to Respondent and to HRH of Southwest Florida, Inc., the MBI plan included establishment of a single employer trust (SET) on behalf of each business. Health claims from each business' employees would be paid from the funds contributed to the trust by the employer. "Stop-loss" insurance would be obtained to cover claims in excess of an employer's contribution. The information provided by Respondent to his clients was provided to Respondent or to HRH of Southwest Florida, Inc., by MBI and affiliated other sources. Based on such information, Respondent presumed that MBI was a stable organization and that the stop-loss coverage was in place. Respondent had no specific training related to ERISA- qualification of health benefit plans. He has sold other plans that he believed were ERISA-qualified plans to other employers in Florida. Typically, a business owner would initially contact HRH of Southwest Florida, Inc., seeking health benefits for employees. A representative of HRH of Southwest Florida, Inc., such as Respondent, would research a variety of options for the business owner and then present the options to the client. The evidence establishes that the MBI health benefit plan was one of several options (including both fully-insured and partially self-funded plans) presented to clients. A client was free to choose the MBI plan, another plan presented, or no plan at all. Clients generally reviewed health benefit plans on an annual basis, at which point the process of presenting various options was repeated. Respondent eventually sold the MBI plan to ten or twelve business clients seeking to provide health benefits to employees. Clients choosing to obtain health benefits through the MBI plan submitted information related to the client's employees through Respondent and HRH of Southwest Florida, Inc., to MBI, which would respond with a preliminary rate proposal. After a client chose to accept the rate proposal, representatives from HRH of Southwest Florida, Inc., including Respondent, would assist client employees in completing applications. The applications were submitted to MBI, which in turn established actual rates and communicated the actual rate directly to the client. Clients who chose to accept the final rate proposal then executed documents purportedly establishing an SET. The documents apparently were created by MBI, and were delivered to clients through representatives of HRH of Southwest Florida, Inc., including Petitioner. After execution by the clients, the documents were returned to MBI. Some clients received a general document on MBI letterhead titled "Technical Aspects of SET SINGLE EMPLOYER TRUST" wherein clients were advised that the SET was an "Employee Welfare Benefit Plan" that was "designed to conform to the Employee Retirement Income Security Act of 1974, as amended." The document described the process of establishing rates and advised that MBI was the plan administrator. The document also referenced a trust document and stated that the trust custodian was First Union National Bank. The document stated as follows: At First Union an account will be established for each single employer trust into which all contributions received by the trust from the employer group will be deposited. Any income earned from funds deposited in that account will be credited to that account and any fees charged by the bank will be charged to that account. Some clients received a disclosure document from "Hilb, Rogal and Hamilton of Sarasota" specifically applicable to the client, which provided that the client "intends to establish a SINGLE EMPLOYER TRUST Employee Welfare Benefit Plan," that client contributions would be made to a trust, and that "all benefits funded by the Plan will be paid out of the assets of the Trust." The document further provided that "[I]n its discretion, the Trust may purchase stop-loss insurance to pay any claims in excess of the amounts held in the Trust." Clients were provided with a document titled "DIRECTIVE TO ESTABLISH A HEALTH AND WELFARE BENEFIT PLAN UNDER ERISA" wherein each client provided information, including the number of total and participating employees and the plan coverage sought. The document required the signature of a client's representative and authorized MBI to establish a "Health and Welfare Benefit Plan under ERISA." Clients were provided with a document titled "HEALTH AND WELFARE PLAN - PLAN DOCUMENT," a lengthy document that set forth the specific health care benefits provided to each client under the selected benefit plan. Each client was provided with a document titled "HEALTH AND WELFARE PLAN SUMMARY" which essentially summarized the plan being provided to the client, identified as the "Plan Sponsor." The document identified MBI as the plan administrator and the claim administrator. The document provided as follows: The Plan conforms to and is governed by the Employee Retirement Income Security Act of 1974, as amended ("ERISA"). The Plan is not a policy of insurance. Neither the Plan Sponsor, nor any trust established to fund the benefits hereunder, is an insurance company. At various times, clients were provided with a document titled "WELFARE BENEFIT PLAN TRUST." In some instances, the document purported to be a trust agreement between the client and First Union, the designated custodian. In other instances, the "WELFARE BENEFIT PLAN TRUST" document did not identify the name of the trust custodian. In all cases, the document identified the plan administrator as MBI, and provided that MBI could "elect such financial institution as it deems appropriate to serve as the custodian with respect to the Trust. . . ." The document further provided that the plan administrator could "remove the Custodian at any time upon sixty (60) days notice in writing to the Custodian . . ." and that the custodian could resign with like notice to the plan administrator. In the agreements where First Union was designated the custodian, removal of the custodian required the client to designate a replacement custodian. In the agreements where no designation was made, the document provided that the plan administrator would designate the replacement custodian. Once the documents were executed and returned to MBI, MBI directly invoiced clients for payment of funds, and clients paid such funds directly to MBI. There is no evidence that Respondent was involved in handling funds transferred from the client to MBI. There is no evidence that Respondent received any information related to any trust accounts that may or may not have been established under the agreement between the client, a trust custodian, and MBI. There is no evidence that Respondent received cancelled checks or copies of account statements. There is no credible evidence that custodial accounts were established by MBI or that contributions submitted to MBI by employers were deposited into custodial accounts. Some checks from multiple employers appear to have been deposited into a single account at First Union. Some checks were deposited into the PNC Bank. There is no credible evidence as to the distribution of the deposited funds. Although under the terms of the trust agreement not all clients were required to approve substitute custodians, there is no evidence that any client required to approve a substitute custodian was ever asked to do so. There is no evidence that the plan administrator complied with the trust document language related to removal of the custodian. At some point in 2002, questions arose about the source of funds available to pay claims in excess of employer contributions. The information initially provided to clients by Respondent was that stop-loss insurance was in place to cover such claims. However, according to a letter on MBI letterhead dated February 25, 2002, to Thomas E. Mestmaker and Associates, "MBI is responsible for any amounts due under adjudicated claims in excess of the contribution amount of its client, assuming that all payments, obligations and bills submitted to the client are timely paid, and the Plan is in good standing with MBI." The letter further states, "MBI is responsible for any excess, subject to the terms and conditions of the initial Directive together with the Plan Trust Agreement, as applicable." There were apparently concerns regarding the soundness of MBI and their ability to handle losses. In March of 2002, information available to Respondent indicated that the stop-loss coverage MBI had supposedly obtained would not be renewed. Respondent began to prepare to move his MBI clients to other benefit plans. A letter to Respondent dated April 11, 2002, on MBI letterhead and purportedly from the Controller of MBI states in part as follows: Meridian Benefit Inc. has acted as an administrator for ERISA-based health plans that it has developed for years. Meridian Benefit Inc. has credibly sufficient contributions and reserves necessary to pay claims for these plans. Moreover, the finances of Meridian Benefit Inc. have been and continue to be sound. Since Meridian Benefit Inc. is a privately held company, we cannot share our detailed financial data, however through management and underwriting Meridian Benefit Inc. has been able to control claims and group losses. MBI then advised Respondent and others that the stop- loss insurance was in place via a statement dated June 19, 2002, indicating that "reinsurance" was being provided by American National Life Insurance Company effective July 1, 2002. As MBI or affiliated entities issued statements regarding the soundness of the MBI plan and the availability of stop-loss coverage, Respondent made the information, including the aforementioned letters, available to clients. The parties have stipulated that American National Life Insurance Company did not provide "reinsurance" or stop-loss insurance relative to any health and welfare benefit plan with MBI as plan administrator. There is no credible evidence that any stop-loss insurance was actually ever obtained by MBI on behalf of employers. In early 2003, MBI informed employers that the employers would be responsible for payment of claims in excess of contributions. By letter dated February 19, 2003, MBI issued a letter to clients which indicated that if a client's claims exceeded contributions, MBI would "advance funds" against the employer's account and then would "approach the employer for repayment of the deficit." The letter further provided that if MBI and the employer "cannot successfully negotiate repayment for the advance, MBI will unfortunately, be forced to stop payment on any existing or future claims." The February 19 letter clearly contradicted earlier affirmations that stop-loss insurance was in place to cover claims in excess of contributions. The evidence fails to establish from where funds "advanced" by MBI would have come. Respondent testified that he did not know the source of the funds. The evidence establishes that Respondent made no independent effort to review MBI or the MBI plan being offered to clients, to determine whether or not stop-loss insurance was actually in place by contacting the insurer identified by MBI as the stop-loss insurer, or to determine whether client funds were being deposited into custodial accounts. By letters dated February 20, 2003 (the day after notifying employers that they would be required to reimburse MBI for funds "advanced"), MBI advised employers of account deficits and directed the employers to pay the deficits. On or about May 15, 2003, MBI filed for Chapter 7 bankruptcy in the United States District Court in New Jersey. MBI had an agreement with Healthcare Sarasota, a local employer organization with an existing network of healthcare providers (a preferred provider organization or "PPO"), to permit MBI plan participants to utilize the Healthcare Sarasota provider network. Client benefit claims were handled between the PPO and MBI. On occasion, representatives of HRH of Southwest Florida, Inc., including Petitioner, became involved in resolving claim issues at the request of clients, but Petitioner had no direct involvement in paying claims. Prior to and by the time MBI filed for bankruptcy, there were numerous unpaid health benefits claims incurred by employees of the employers who became involved with the MBI plan through Respondent. Some employers have paid the claims and are seeking restitution from various parties. Other claims remain unpaid. Although the evidence fails to clearly establish the amount of the remaining unpaid claims, it is clear that at the time of the hearing, thousands of dollars in health benefit claims remain unpaid by any responsible party. Some employees of businesses that participated in the MBI plan have had unpaid claims forwarded by health providers to debt collection agencies. Petitioner has disseminated information to the public and to licensed agents about potential difficulties that may result from participating in health benefit plans that are not subject to state regulation. There is no evidence that licensed agents are required to read the information disseminated by Petitioner, and there is no evidence that Respondent did so. Child Development Center In mid-2001, Respondent met with a representative of the Child Development Center (CDC) to present various options for health benefit coverage for CDC employees. CDC chose to provide health benefits through the MBI plan. A CDC representative executed the document titled "DIRECTIVE TO ESTABLISH A HEALTH & WELFARE BENEFIT PLAN UNDER ERISA." The document was dated June 21, 2001, with an effective date of July 1, 2001, and signed by Respondent, identified as the "Benefit Consultant." A CDC representative executed the document titled "WELFARE BENEFIT PLAN TRUST." The document provided an effective date of July 1, 2001, but was executed on September 19, 2001. The document stated that the trust custodian would be First Union. Nothing on the document indicated that First Union had agreed to be the custodian. Included with the information provided by Respondent to CDC was the letter dated February 25, 2002, from MBI to Thomas Mestmaker and Associates stating that MBI was responsible for amounts due under adjudicated claims in excess of the employer's contribution. By July 2002, there were no apparent problems with coverage or claims paid, and CDC renewed its participation in the MBI plan. By January 2003, problems with CDC claims payments were occurring and CDC representatives requested from Respondent an accounting of claims paid. The accounting was not immediately made available, although at some subsequent and unidentified time CDC received the information. In March 2003, an employee of CDC located information on the internet indicating that the States of Colorado and North Carolina had issued "cease and desist" orders against MBI. The CDC representative forwarded the information to "Tyla Heatherly" an employee at HRH of Southwest Florida, Inc., and asked that it be provided to Respondent. Respondent thereafter advised the CDC representative that the problems in other states were related to the type of plans that were being offered in those states, and that the CDC plan was an ERISA-qualified SET. By letter from MBI to CDC dated May 5, 2003, MBI advised CDC that MBI was "experiencing severe financial problems and is in the process of winding-down its business." The letter advised CDC to "make immediate arrangements" to obtain either a different third party administrator or to obtain other health benefit coverage. Beginning June 20, 2001, CDC paid funds by check to MBI pursuant to the invoices that MBI delivered directly to CDC. Although the CDC checks to MBI were deposited, the evidence fails to establish that the CDC funds were deposited into a custodial trust account for the benefit of CDC. Family Counseling Center of Sarasota, Inc. At some point in 2001, Respondent met with a representative of the Family Counseling Center of Sarasota, Inc. (FCCS), to present various options for health benefit coverage for FCCS employees. FCCS chose to provide health benefits through the MBI plan. An FCCS representative executed the document titled "DIRECTIVE TO ESTABLISH A HEALTH & WELFARE BENEFIT PLAN UNDER ERISA" dated October 31, 2001, and signed by Respondent, as the "Benefit Consultant." By his signature, an FCCS representative acknowledged receipt of the "HEALTH AND WELFARE PLAN SUMMARY" document indicating an effective date of December 1, 2001, which was also signed by Respondent. An FCCS representative executed the document titled "WELFARE BENEFIT PLAN TRUST." The document has an effective date of December 1, 2001, but the date of execution was January 3, 2002. The document stated that the trust custodian would be First Union. Nothing on the document indicated that First Union had agreed to be the custodian. Included with the information provided by Respondent to FCCS was the letter dated February 25, 2002, from MBI to Thomas Mestmaker and Associates stating that MBI was responsible for amounts due under adjudicated claims in excess of the employer's contribution. Respondent provided to FCCS the MBI letter to Respondent dated April 11, 2002, advising that MBI had sufficient contributions and reserves necessary to pay claims and was in sound condition. Respondent provided to FCCS the document on MBI letterhead dated June 19, 2002, stating that American National Life Insurance Company was providing "reinsurance." Towards the end of the first year of the MBI plan, FCCS learned that renewal of the MBI plan would involve a substantial cost increase. FCCS initially intended to change benefit plans due to the cost increase, but Respondent apparently negotiated with MBI to reduce the price increase to 40 percent over the initial year cost. FCCS renewed the MBI plan because even with the rate increase the MBI plan was still less expensive than other available benefit plans. FCCS received the MBI letter dated February 19, 2003, stating that if a client's claims exceeded contributions, MBI would "advance funds" against the client's account and then would "approach the employer for repayment of the deficit." The evidence fails to establish whether the letter was provided to FCCS by Respondent or by MBI. By letter from MBI to FCCS dated February 20, 2003, MBI advised FCCS that the client needed to submit "a one-time payment of $163,670.75 to bring your account into a positive position or an increase in your contribution of 200% effective 5/1/2003." The letters of February 19 and 20, 2003, contradicted the assurances by Respondent to FCCS that stop-loss coverage was in place to address claims in excess of employer contributions. FCCS contacted Respondent to advise him of the situation. By letter from FCCS to the chief executive officer of HRH of Southwest Florida, Inc., dated April 25, 2003, FCCS advised that MBI was not paying claims and that some of the staff were having accounts turned over to collection agencies for non-payment. By letter from MBI to FCCS dated May 5, 2003, MBI advised FCCS that MBI was "experiencing severe financial problems and is in the process of winding-down its business." The letter advised FCCS to "make immediate arrangements" to obtain either a different third party administrator or to obtain other health benefit coverage. FCCS paid funds by check to MBI pursuant to the invoices that MBI delivered directly to FCCS. Although the FCCS checks to MBI were deposited, the evidence fails to establish that the FCCS funds were deposited into a custodial account for the benefit of FCCS. Sarasota Land Services In the beginning of 2002, Respondent met with a representative of Sarasota Land Services (SLS) to present various options for health benefit coverage for SLS employees. SLS chose to provide health benefits though the MBI plan. An SLS representative executed the document titled "DIRECTIVE TO ESTABLISH A HEALTH & WELFARE BENEFIT PLAN UNDER ERISA." The document was executed on February 11, 2002, with an effective date of March 1, 2002, and was signed by Respondent, as the "Benefit Consultant." By her signature, the SLS representative acknowledged receipt of the "HEALTH AND WELFARE PLAN SUMMARY" document indicating an effective date of March 1, 2002, which was also signed by Respondent. An SLS representative executed the document titled "WELFARE BENEFIT PLAN TRUST." The document indicates the agreement was executed on February 11, 2002, and was effective as of March 1, 2002, but the SLS representative's signature was dated September 10, 2002. The document did not identify the name of the trust custodian, but provided that MBI could "elect such financial institution as it deems appropriate to serve as the custodian with respect to the Trust. " SLS received the disclosure document from "Hilb, Rogal and Hamilton of Sarasota" titled "DISCLOSURE AND ACKNOWLEDGEMENT REGARDING THE SARASOTA LAND SERVICES BENEFIT PLAN" dated March 1, 2002. The SLS representative's signature on the disclosure form is dated September 10, 2002. By letter from MBI to SLS dated February 20, 2003, MBI advised SLS that the claims history required an increase in SLS's contribution of 100 percent effective March 1, 2003. Upon receipt of the letter, the SLS representative contacted Respondent and discussed the situation. The discussion included references to the stop-loss insurance coverage that the SLS representative expected to cover claims in excess of contributions. SLS did not renew its participation in the MBI plan. Beginning February 12, 2002, SLS paid funds by check to MBI pursuant to the invoices that MBI delivered directly to SLS. Although the SLS checks to MBI were deposited, the evidence fails to establish that the SLS funds were deposited into a custodial account for the benefit of SLS. SLS also paid an administrative fee directly to HRH of Southwest Florida, Inc. The evidence does not establish what, if any, of the administrative fee was paid to Respondent. Center For Sight In the fall of 2001, the Center For Sight (CFS) entered into an agreement with MBI to obtain health benefit services for CFS employees. CFS was already participating in the MBI plan in March 2002, at the time the CFS representative who testified at the hearing became employed at CFS. A CFS representative executed on July 17, 2001, the document titled "DIRECTIVE TO ESTABLISH A HEALTH & WELFARE BENEFIT PLAN UNDER ERISA." The document indicated an effective date of August 1, 2001, and was signed by Respondent, as the "Benefit Consultant." By their signatures, CFS representatives acknowledged receipt of the "HEALTH AND WELFARE PLAN SUMMARY" document indicating an effective date of August 1, 2001. CFS representatives executed the document titled "WELFARE BENEFIT PLAN TRUST" with an effective date of August 1, 2001, although the document was executed on September 1, 2001. The document indicated that the trust custodian would be First Union. Nothing on the document indicated that First Union had agreed to be the custodian. The CFS representative who testified at the hearing was the chief operating officer for CFS. He reviewed the MBI plan upon beginning his employment. He testified that claims payment problems began "instantaneously," but stated that Respondent was helpful in getting claims processed and paid. He testified that he had no problems with Respondent. The CFS representative had concerns about the provision of stop-loss insurance and asked Respondent to obtain a copy of a policy, but the policy was never provided to CFS. However, prior to renewal in July 2002, Respondent provided to CFS the MBI document dated June 19, 2002, stating that American National Life Insurance Company was providing "reinsurance." At the end of the first year, Respondent presented various health benefit options to CFS, but despite the claims payment problems, CFS renewed the MBI plan in July 2002 because the MBI plan was substantially less expensive than other benefit plans. At some subsequent time, Sarasota Memorial Hospital and other local providers began to refuse services to CFS employees covered under the MBI plan, apparently because claims were not being paid. CFS received the MBI letter dated February 19, 2003, stating that if a client's claims exceeded contributions, MBI would "advance funds" against the client's account and then would "approach the employer for repayment of the deficit." By letter from MBI to CFS dated February 20, 2003, MBI advised FCCS that the client needed to submit "a one-time payment of $5,471.66 to bring your account into a positive position or an increase in your contribution of 15% effective 4/1/2003." By letter dated April 18, 2003, to MBI and copied to Respondent, CFS set forth a list of concerns related to claims which were unpaid or had been denied and to "high administrative cost" and asked that there be a resolution to the problems. Eventually CFS paid approximately $300,000 in pending employee claims using CFS funds and sought health benefits from another source. Beginning July 19, 2001, CFS paid funds by check to MBI pursuant to the invoices that MBI delivered directly to CFS. Although CFS checks to MBI were deposited, the evidence fails to establish that the CFS funds were deposited into a custodial account for the benefit of CFS. Michael's Gourmet Group Prior to 2002, Respondent had an existing relationship with Michael's Gourmet Group (MGG) and had previously assisted MGG in obtaining health benefits from various sources. In March of 2002, Respondent met with a representative of MGG to present various options for health benefit coverage for MGG employees. MGG chose to provide health benefits through the MBI plan. As he did in presenting available health benefit options to clients, Respondent informed MGG that the MBI plan was a partially self-funded plan and that stop-loss insurance would cover claims in excess of the MGG contributions. An MGG representative executed the document titled "DIRECTIVE TO ESTABLISH A HEALTH & WELFARE BENEFIT PLAN UNDER ERISA." The document was executed on February 27, 2002, with an effective date of March 1, 2002, and was signed by Respondent, as the "Benefit Consultant." Although the evidence includes a "HEALTH AND WELFARE PLAN SUMMARY" document applicable to MGG and indicating an effective date of March 1, 2002, there are no signatures on the document. An MGG representative executed the document titled "WELFARE BENEFIT PLAN TRUST" with an effective date of March 1, 2002, although the document was executed July 24, 2002. The document did not identify the name of the trust custodian, but provided that MBI may "elect such financial institution as it deems appropriate to serve as the custodian with respect to the Trust. " MGG received a document from "Hilb, Rogal and Hamilton of Sarasota" titled "DISCLOSURE AND ACKNOWLEDGEMENT REGARDING THE SARASOTA LAND SERVICES BENEFIT PLAN" dated March 15, 2002. The MGG representative's signature on the disclosure form is dated July 24, 2002. MGG received the MBI letter dated February 19, 2003, which stated that if a client's claims exceeded contributions, MBI would "advance funds" against the client's account and then would "approach the employer for repayment of the deficit." By letter from MBI to MGG dated February 20, 2003, MBI advised MGG that the claims history required an increase in MGG's contribution of 300 percent effective March 1, 2003. Subsequent to receipt of the two letters, MGG discontinued its participation in the MBI plan. Beginning February 27, 2002, MGG paid funds by check to MBI pursuant to the invoices that MBI delivered directly to MGG. Although MGG's checks to MBI were deposited, the evidence fails to establish that MGG's funds were deposited into a custodial account for the benefit of MGG. MGG also paid an administrative fee directly to HRH of Southwest Florida, Inc. The evidence does not establish what, if any, of the administrative fee was paid to Respondent. Cheddar's Casual Cafe In September 2001, Respondent met with a representative of a restaurant chain known as Cheddar's Casual Cafe (Cheddar's). Respondent presented various options for health benefits to Cheddar's, and the Cheddar's representative chose to provide health benefits through the MBI plan. A Cheddar's representative executed the document titled "DIRECTIVE TO ESTABLISH A HEALTH & WELFARE BENEFIT PLAN UNDER ERISA" dated December 18, 2001, and signed by Respondent, as the "Benefit Consultant." By his signature, the Cheddar's representative acknowledged receipt of the "HEALTH AND WELFARE PLAN SUMMARY" document indicating an effective date of January 1, 2002. By his signature, the Cheddar's representative on January 14, 2002, executed the document titled "WELFARE BENEFIT PLAN TRUST" with an effective date of January 1, 2002. The document indicated that the trust custodian would be First Union. Nothing on the document indicated that First Union had agreed to be the custodian. Beginning February 5, 2002, Cheddar's paid funds by check to MBI pursuant to the invoices that MBI delivered directly to Cheddar's. Although Cheddar's checks to MBI were deposited, the evidence fails to establish that Cheddar's funds were deposited into a custodial account for the benefit of Cheddar's. Cheddar's also paid an administrative fee directly to HRH of Southwest Florida, Inc. The evidence does not establish what, if any, of the administrative fee was paid to Respondent. Cheddar's representative inquired as to the stability of MBI and was advised by Respondent that MBI was stable. The Cheddar's representative relied on Respondent's representation when the Cheddar's health benefit plan came up for renewal towards the end of 2002. Although Respondent presented health benefit plans from several companies, Cheddar's renewed the MBI plan, even though some employees had experienced late claims payments. By claim denial dated February 28, 2003, MBI denied the hospital claim for a Cheddar's employee because the claim was over 120 days old, but there is no evidence that Respondent was advised of the denied claim. By letter dated April 29, 2003, to MBI, Cheddar's cancelled coverage as of April 1, 2003. The letter states that "there are a substantial number of unpaid claims from calendar years 2002 and 2003" and asserts that MBI has been unresponsive to complaints about the problems. A copy of the April 29, 2003, letter was sent to Respondent with a cover letter expressing dissatisfaction with the MBI plan, with the MBI operation, and with Respondent's representation of MBI.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services enter a final order suspending the insurance licensure of Bradley W. Beshore for a period of 78 months. DONE AND ENTERED this 10th day of March, 2005, in Tallahassee, Leon County, Florida. S 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 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of March, 2005.
The Issue Whether Roslyn Sue Wells (Roslyn) suffered a “birth-related neurological injury” as defined by section 766.302(2) for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation (NICA) Plan (the Plan).
Findings Of Fact Pursuant to the Joint Pre-hearing Stipulation, the parties agreed to the following facts: Roslyn was delivered on March 24, 2016, at MRMC—a hospital. Roslyn was a single gestation, weighing 3,240 grams at delivery. Dr. Hunt was the delivering physician and was a NICA participating provider at the time of Roslyn’s delivery. MRMC provided notice of NICA participation to Petitioners. Provision of notice of Dr. Hunt’s NICA participation to Petitioners was excused. The undersigned makes the following additional Findings of Fact: Natalie, who was pregnant with Roslyn for approximately 38 weeks, began experiencing contractions at about 11:30 a.m., on March 24, 2016. Natalie arrived at MRMC at 3:30 p.m., that day, and MRMC began fetal heart rate monitoring at 3:32 p.m. At 4:12 p.m., Lisa Roberson, R.N., in the OB Triage notes, noted that “Dr. Hunt covering for Dr. Marquette. Called w/full report. Fhts. w/minimal variability and variables w/every ctx. Reported ctx. Pattern and urine dip. Orders to continue watch pt.” The OB Triage notes indicate, at 4:27 p.m., prolonged accelerations with fetal heart rates down to the “60s” with “occasional rises to the 90s” over 8 minutes. At 4:34 p.m., the OB Triage notes indicate that the fetal heart rate and maternal heart rate “not in sync [:] maternal hr 80s and fhts in 100s.” At 4:36 p.m., Nurse Roberson’s notes indicate “MD called back to inform of fhts continue to decel. MD orders to take pt. to the OR now.” Natalie arrived in the operating room at 4:41 p.m., and Dr. Hunt arrived at 4:45 p.m. The MRMC notes indicate “MD arrived to OR and spoke w/pt. about c/s. Informed MD at that time that the baby’s hr was in the 80- 90s prior to prep.” Dr. Hunt delivered Roslyn, via cesarean section, at 4:54 p.m. Dr. Hunt’s operative report states: The patient is a 30-year-old, gravida 2, para 1 female, admitted at 38 weeks gestation in active labor. She states that contractions became quite strong and she came to the labor room. ON the monitor, she was having mild contractions, but they were at 1 and 2 minute intervals. She had a baseline fetal heart beat of 110. There were no accelerations noted. She was in the labor room short time for monitoring when she had decelerations down to the 60s and had come back up to the 90s. I was called and came in for immediate cesarean section. Just prior to being placed on the operating table, fetal heart tones were 90. The patient had no vaginal bleeding and membranes were intact. The operative report further states, “[a] 6-pound-15-ounce female infant was delivered with Apgars of 0, 0, and 2 at 15 minutes. The baby required immediate resuscitation by the neonatologist.”1 1 “An Apgar score is a numerical expression of the condition of the newborn and reflects the sum total of points gained on an assessment of heart rate, respiratory effort, muscle tone, reflex irritability and color.” Nagy v. Fla. Birth-Related Neurological Injury Comp. Ass’n, 813 So. 2d 155, 156 n.1 (Fla. 4th DCA 2002) (citing Dorland’s Illustrated Medical Dictionary 1498 (27th ed. 1988)). The Neonatologist Transfer Note states, in pertinent part: Baby Girl Wells born via state C/s due to NRFHR – HR in the 50-60s for ~10 minutes. Mother is serology negative. Infant with APGARS 0/0/0/3 at 1,5/10/15 minutes requiring CPR for ~15 minutes. Infant was limp, cyanotic, no respiratory effort, intubated and given manual breaths until 15 minutes and placed on mechanical ventilator. . . . Per OB mother had massive abruption placenta. The Neonatology Delivery/Consult Note reflects the following diagnoses: “term newborn born via c/s for NFEHR”; “hypoxic ischemic encephalopathy”; and “respiratory failure.” The MRMC Delivery Summary reflects that Roslyn was “alive.” The MRMC Admission Orders reflect that Roslyn was “[l]iveborn in hospital by cesarean section (primary).” Following delivery and resuscitation, MRMC’s records reflect Roslyn’s vital signs on March 24, 2016, as follows: blood pressure of 75/35 at 5:12 p.m.; blood pressure of 69/50 at 5:18 p.m.; blood pressure of 69/50, with some spontaneous respirations noted at 5:34 p.m.; blood pressure of 74/32 at 5:36 p.m.; pulse of 124/minute, and with 5-6 spontaneous respirations noted at 6:03 p.m.; a pulse of 120/minute at 6:19 p.m.; and blood pressure of 78/47, and a pulse of 120/minute, at 6:33 p.m. At 6:45 p.m., on March 24, 2016, Roslyn was discharged from MRMC and transferred to Shands Hospital at the University of Florida (Shands) for continued care in its neonatal intensive care unit (NICU). Shands NICU started a cooling protocol for hypoxic ischemic encephalopathy, and also started a video EEG. Roslyn remained on a mechanical ventilator. The neurological examination of Roslyn reflects that she “doesn’t react[] to light by squinting,” has “[w]eak withdraw with some antigravity effort to noxious stimuli seen in all 4 extremities,” and “withdraws to pain equally in all extremities.” Video EEG from overnight revealed multiple seizures, and Phenobarbital was administered. Roslyn remained on a mechanical ventilator through March 28, 2016, at Shands. She received two blood transfusions. A trial of feeding started on day 3 of life that Roslyn did not tolerate. On March 28, 2016, a brain MRI showed global injury to Roslyn’s brain involving the whole cortex and basal ganglia. According to the notes of the treating physician at Shands: After discussing results of the MRI concerning the global injury, along with the signs of hemodynamic instability, and the EEG readings the parents decided to withdraw care. Two attendings supported the decision. Sedative drips were stopped and prn medications were ordered. The patient was extubated at 1800, 3/28/16. Time of death 3/29/16 4:28 a.m., pronounced by [the attending physician]. Testimony of Expert Witnesses2 The parties’ respective experts opined on the critical issue in this matter: whether Roslyn was a “live infant” or “live birth” as contemplated under section 766.302(2) (and would therefore be entitled to compensation under the Plan), or whether she suffered a “fetal death,” which would fall outside of section 766.302(2). The experts relied on Roslyn’s Apgar scores, and also relied on the definitions of “fetal death,” “live birth,” and “stillbirth” found in section 382.002, Florida Statutes, which is the definitional provision of the Vital Statistics chapter of the Florida Statutes, in rendering their opinions. 2 The parties stipulated to the undersigned accepting Dr. Voss and Dr. Willis as medical experts. The undersigned has reviewed the deposition transcripts of both, has considered their credentials, and the bases for their respective opinions, and accepts both as expert witnesses. Section 766.302(2) defines “Birth-related neurological injury” as: [An] injury to the brain or spinal cord of a live infant weighing at least 2,500 grams for a single gestation, or in the case of a multiple gestation, a live infant weighing at least 2,000 grams at birth caused by oxygen deprivation or mechanical injury occurring he course of labor, deliver, or resuscitation in the immediate postdelivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired. This definition shall apply to live births only and shall not include disability or death caused by genetic or congenital abnormality. (emphasis supplied). Section 382.002(8) defines “fetal death” as: death prior to the complete expulsion or extraction of a product of human conception from its mother if the 20th week of gestation has been reached and death is indicated by the fact that after such expulsion or extraction the fetus does not breathe or show any other evidence of life such as beating of the heart, pulsation of the umbilical cord, or definite movement of voluntary muscles. Section 382.002(12) defines “live birth” as: The complete expulsion or extraction of a product of human conception from its mother, irrespective of the duration of pregnancy, which, after such expulsion, breathes or shows any other evidence of life such as beating of the heart, pulsation of the umbilical cord, and definite movement of voluntary muscles, whether or not the umbilical cord has been cut or the placenta is attached. Section 382.002(17) defines “stillbirth” as “[a]n unintended, intrauterine fetal death after a gestational age of not less than 20 completed weeks.” Petitioners’ expert, Dr. Voss, whom they originally retained in the previous medical negligence lawsuit, opined that Roslyn was not born alive, based primarily on her Apgar scores. Dr. Voss stated: This – this child had Apgar scores of zero at one minute; zero at five minutes; zero at ten minutes. And, finally—there’s a discrepancy in the records between the note made by the obstetrician and the note made by the neonatologist; either had a score of two or three. But at one minute, five minutes, and ten minutes, this baby did not have a detectable heartbeat, made no respiratory efforts, and had no movement based on the Apgar scores. Q: But you would agree with me that the Apgar score of either two or three at 15 minutes would indicate signs of life, wouldn’t you? A: After resuscitative efforts, yes. Dr. Voss also opined that the statutory definitions of “live birth,” “fetal death,” and “stillbirth” include the factors that are considered in the assignment of Apgar scores. He further opined that Roslyn showed signs of life sometime between 10 and 15 minutes after extraction, but also that she showed no signs of life prior to that. Dr. Voss testified, “I think this fetus died in utero. I think this was a fetal death.” However, upon further questioning, he clarified his opinion as follows: But—so again, at birth, at the time of extraction, or delivery, or whatever term you want to put to it, this baby had no signs of life. And it’s only—and it occurred temporally enough that these tissues were still viable enough, with the right stimulus, signs of life could be restored through this child. But by the legal definition that is outlined in the statute, I would declare this a stillbirth, and clearly so, unless you want to say that, yes, at 10 to 15 minutes, signs of life—through the right stimulus, signs of life were restored; that the tissues were still viable enough, that with the right stimulus, the signs of life could be restored to the child. Q: Okay. So to be fair … it sounds like—and correct me if I’m wrong—your opinion is that this can be characterized as both a fetal death or stillbirth as well as— A: A live birth. Q: --a live birth, according to your medical definitions set forth in the statute, is that fair? A: Yes, that’s very fair. NICA’s expert, Dr. Willis, opined that Roslyn suffered oxygen deprivation during labor and delivery, resulting in brain injury. Dr. Willis opined that Roslyn’s Apgar scores (either 0/0/0/2 or 0/0/0/3) indicated that Roslyn showed signs of life after extraction from the mother. Dr. Willis further opined that Roslyn was born alive. He further testified: [S]everal things would confirm that. Number one, the child died five—five days after birth, so obviously the child was alive. The definition of live birth is expulsion of a baby that shows signs of life after birth. That can be a heartbeat or voluntary muscle movement or respiratory effort. There’s no time limit on it. So to show signs of life, it doesn’t mean it has to be by a certain time after life. It’s at any time after birth. In order to be considered a stillbirth, or demised at birth, you should remember that the—the diagnosis of death is a permanent diagnosis. So—so you can’t die and then be alive. So to say that a baby is stillborn means the baby is born without a heartbeat and is never resuscitated. Never shows signs of life. So in this case the baby was— obviously lived for several days, so it was alive. Also the records confirm this. On the delivery summary there’s a box that—that states several things about the baby. And on is—it has choices between alive and stillbirth and clearly circled is alive. So that would again confirm that impression, but clearly the baby was a live birth. When questioned on cross-examination whether Roslyn’s receiving a 0 Apgar score upon extraction indicated an intrauterine fetal death, Dr. Willis stated it did not, “because intrauterine fetal demise would be a baby that’s born without a heartbeat and never obtains one.” Dr. Willis later clarified, “[a]t any point after expulsion if there’s a heartbeat or sign of life, it is considered a live birth.” Based on the weight of the credible evidence presented, the evidence established that Roslyn suffered oxygen deprivation during labor, delivery, or resuscitation in the immediate post-delivery period in a hospital (MRMC). Further, Roslyn weighed in excess of 2,500 grams. Additionally, the weight of the credible evidence establishes that Roslyn was, after extraction, a “live infant” and that this was a “live birth,” based on the statutory definitions found in section 382.002, the medical record evidence presented, and the expert testimony of both Dr. Voss and Dr. Willis, and that this was not a “fetal death” or “stillbirth.” The medical record evidence indicates that, between 10 and 15 minutes after extraction, signs of life were present, including a pulse, blood pressure, and spontaneous respirations following resuscitative efforts. Additionally, after the Petitioners made the decision to withdraw mechanical care to Roslyn, and care was withdrawn, Roslyn lived for approximately 10 and one-half hours on her fifth day of life. Further, Dr. Voss and Dr. Willis both testified that Roslyn was a live birth, although Dr. Voss testified that Roslyn was both a live birth and a fetal death/stillbirth. The undersigned credits Dr. Willis’s testimony that “live birth” means a baby that shows signs of life after birth, which is what happened with Roslyn, and that Roslyn suffered a neonatal death. The undersigned does not credit Dr. Voss’s testimony that Roslyn was both a fetal death/stillbirth and a live birth.
Conclusions For Petitioners: T. Patton Youngblood, Jr., Esquire Youngblood Law Firm Suite 800 360 Central Avenue St. Petersburg, Florida 33701-3984 For Respondent: Brooke M. Gaffney, Esquire Smith, Stout, Bigman & Brock, P.A. Suite 900 444 Seabreeze Boulevard Daytona Beach, Florida 32118 For Intervenors: For Intervenor Munroe HMA Hospital, LLC, d/b/a Munroe Regional Medical Center: David O. Doyle, Jr., Esquire Pearson Doyle Mohre & Pastis, LLP Suite 401 485 North Keller Road Orlando, Florida 32751 For Intervenors Seaborn Hunt, M.D., and 17th Street, LLC: M. Suzanne Green, Esquire Bice Cole Law Firm, L.P. 1333 Southeast 25th Loop, Suite 101 Ocala, Florida 34471
Other Judicial Opinions Review of a final order of an administrative law judge shall be by appeal to the District Court of Appeal pursuant to section 766.311(1), Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original notice of administrative appeal with the agency clerk of the Division of Administrative Hearings within 30 days of rendition of the order to be reviewed, and a copy, accompanied by filing fees prescribed by law, with the clerk of the appropriate District Court of Appeal. See § 766.311(1), Fla. Stat., and Fla. Birth-Related Neurological Injury Comp. Ass'n v. Carreras, 598 So. 2d 299 (Fla. 1st DCA 1992).
Other Judicial Opinions A party who is adversely affected by this final order is entitled to judicial review pursuant to Sections 120.68 and 766.311, Florida Statutes. Review proceedings are governed by the Florida Rules Of Appellate Procedure. Such proceedings are commenced by filing one copy of a notice of appeal with the Agency Clerk Of The Division Of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, with the appropriate District Court of Appeal. See, Section 120.68(2), Florida Statutes, and Florida Birth-Related Neurological Injury Compensation Association v. Carreras, 598 So.2d 299 (Fla. lst DCA 1992). The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.
