Findings Of Fact After surgery on his shoulder, petitioner found it painful to lift sacks of fertilizer and the like at the nursery where he was employed, so he left his job and sought help at respondent's Orlando office. Albert Michael Tester, a counselor in respondent's employ, caused petitioner's shoulder to be evaluated by a physician and arranged for vocational testing. Presented with various vocational options, petitioner chose a two year paralegal training program at Valencia Community College. Beginning April 26, 1977, respondent paid for petitioner's books and tuition and paid petitioner $10.00 weekly toward transportation expenses incurred in getting to and from school. Petitioner's counselor also found a job for petitioner, as a child care worker at the Orange Regional Juvenile Detention Center. Petitioner testified that the $10.00 weekly transportation "maintenance" he had been receiving ceased when he began work. Petitioner held down the job and did well in school until he left both in January of 1978. Petitioner had consulted two physicians before he left off working and quit school in January of 1978. Petitioner testified that one, Dr. Samano, told him he should cut something out; but that the other, Dr., Tew, told him he need not cut out anything. At the time of the hearing, petitioner had not been employed since January 23, 1978. After dropping out of the paralegal program, petitioner suggested to his counselor that respondent set him up in a woodworking shop as a means of vocational rehabilitation. Mr. Tester advised petitioner that, in all likelihood, this request would not be granted. In mid-February, petitioner and a legal services representative met with Charles May, Mr. Tester and other employees of respondent. When informed that the rules did not seem to authorize setting petitioner up in business, petitioner's representative asked that a final determination be postponed pending a medical evaluation of petitioner. Respondent agreed to order a series of diagnostic tests to evaluate petitioner's psychiatric condition and to access the effects of petitioner's essential hypertension. Respondent had been advised as early as August of 1977, that petitioner's shoulder "should not be disabling to any degree or restrict him from activity of choice." Respondent's exhibit No. 7. Petitioner's counselor arranged for petitioner to receive four weeks' "diagnostic maintenance" and suggested he use his spare time to gather information about establishing a woodworking business. By letter dated May 8, 1978, respondent formally notified petitioner that it was "unable to meet [his] request to assist [him] in self- employment." Respondent's exhibit No. 5. On or about June 16, 1978, respondent sponsored petitioner in the photography program in which he was involved at the time of the hearing. This sponsorship has included maintenance payments. At no time before filing the petition in the present case did petitioner request any maintenance benefits. Respondent's "Rehabilitation Services Manual" provides: "Maintenance may only be provided when supportive of other vocational rehabilitation services." Respondent's exhibit No. 9. Respondent's "Vocational Rehabilitation Counselor Manual" provides: "Maintenance will be provided a client only if it is necessary for him to derive full benefits from other services being provided." Respondent's exhibit No. 8. Neither manual has been promulgated as a rule.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent deny petitioner's request for back maintenance payments. DONE and ENTERED this 27th day of March, 1979, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: William R. Barker, Esquire 128 West Central Boulevard Orlando, Florida 32802 Douglas E. Whitney, Esquire Room 912, 400 West Robinson Orlando, Florida 32801
Findings Of Fact Jules Montouri is a retarded adult. Rahya Montouri is his mother. Prior to March, 1980, Jules Montouri resided at a facility maintained by the Department of Health and Rehabilitative Services in Gainesville, Florida. Jules Montouri's mental capacity is retarded to an extent that he will never be able to completely care for himself and meet his own needs. He can, however, with proper training become capable of living a somewhat normal life with minimal supervision. Since March, 1980, Jules Montouri has resided at "Hillcrest House." Hillcrest House is an adult group residential facility maintained by the Provider, Sheltered Community Residence, Inc. The Provider is under contract with the Department of Health and Rehabilitative Services to provide a residential educational setting for retarded adult males. The concept of the program offered by the Provider is to move clients out of heavily restricted institutional environments into less restrictive ones. The program is designed to train clients to meet as many of their own needs as they can, and to gradually move them into less and less restrictive living situations. The Provider has sought to teach Jules Montouri to live in harmony in a minimally supervised environment, and to do his own cleaning and cooking. The Provider's goal with respect to Jules Montouri would be to move him into an apartment-type living facility with several other retarded adult males with a minimal degree of supervision. The Provider's program is an appropriate one for Jules Montouri. Except for problems that have developed between the Provider and Rahya Montouri, the program offered by the Provider would have a reasonable prospect of successfully training Jules Montouri to live in a substantially independent manner. Rahya Montouri disagrees with the goal of the Provider's program to steer Jules Montouri toward a level of substantial independence. She has objected to programs designed to train Jules Montouri for marginal employment, and to programs designed to teach him how to cook for himself. While Rahya Montouri maintains that she wants her son to remain as a resident in the Hillcrest House facility, she has found very little but fault with the program. Since Jules Montouri has been a client of the Provider, Rahya Montouri has complained on a constant basis about virtually every aspect of the Provider's program. She visits her son often at the facility, and has complained verbally to staff members on virtually every visit. She has made many complaints through telephone conversations with members of the staff. She has written numerous letters to complain about the facility, the program, other clients, and the staff. For example, she has expressed suspicion that her son has engaged in homosexual conduct and has implied that members of the staff may have been involved. These suspicions and accusations appear to have been based upon no evidence whatever. Mrs. Montouri's antagonistic attitude toward the Provider's program has become disruptive to the program. The Provider's staff at the Hillcrest facility has spent from five to ten hours per week since Jules Montouri has been a client dealing with complaints from Mrs. Montouri. On at least two occasions, Mrs. Montouri has violated the rights of other clients at the facility by going through their belongings looking for items that she asserted had been taken from her son. Mrs. Montouri's antagonism toward the program has affected the ability of Jules Montouri to participate in it. Jules is caught in the unfortunate cross fire between the program and his mother. As can be expected, it has confused him considerably. Recently, he has told several of the Provider's staff members and social workers from the Department of Health and Rehabilitative Services that he wishes to leave the program. Mrs. Montouri has complained to the Human Rights Advocacy Committee for Retardation. This committee is a group of volunteers who serve to investigate potential emotional, psychological, or sexual abuse of clients. Mrs. Montouri's complaints have resulted in investigations by the Human Rights Advocacy Committee of the Provider's program. The investigations have not revealed any instances of actual abuse. The investigations have, however, had a demoralizing effect upon the staff of the Provider's program, and could seriously damage the program's reputation. Mrs. Montouri's antagonistic attitude toward the Provider's program has become abusive. The time that the Provider's staff has had to devote to her complaints is unjustified. Her antagonistic attitude has rendered it difficult for her son to progress in the program. Her complaints have demoralized the program's staff and could eventually injure the program's reputation. While the program offered by the Provider is an appropriate one for Jules Montouri and could serve to prepare him to live the most normal life possible for him, it is not practical that he continue in the program.
The Issue Whether Respondent's proposed decision to award a contract to The Next Step Adolescent and Youth Community Center, Inc., pursuant to RFP No. K8025 is contrary to Respondent's governing statutes, rules, or policies or the proposal specifications.
Findings Of Fact On April 27, 1999, Respondent, Department of Juvenile Justice (Department), issued and advertised RFP No. K8025, which was a request for proposals (RFP) for a 16-bed, non-secure detention program. Petitioner, Non-Secure Detention Home, Inc. (Non-Secure Detention Home) and The Next Step Adolescent and Youth Community Center, Inc. (Next Step) submitted proposals. Another provider submitted a proposal but it was rejected as nonresponsive and was not evaluated. On June 1, 1999, the Department posted the tabulations for the RFP, recommending the contract be awarded to Next Step. Next Step received the highest number of points, 248.66, and Non-Secure Home Detention ranked second with 209.33 points. Non-Secure Detention Home filed a protest on June 3, 1999, and an Amended Notice of Protest on July 1, 1999. There were three evaluation committee members: Anna Bustamante, Kenneth Williams, and Allen Hepburn. Mr. Williams is a community youth leader supervisor with the Department. Mr. Hepburn is a juvenile probation officer supervisor, who supervises the court unit for the Department. The RFP provides that the program is to be operated at a provider-leased or owned facility. Next Step indicated in its proposal that Next Step would be leasing two homes. One of the homes was to be leased from Reginald Rucker, who was the president and a member of the Board of Directors for Next Step. A copy of the lease was included with the proposal and stated that Reginald Rucker and his wife, Charlene Rucker, were to be the landlords. There was no indication in Next Step's proposal that the facility was owned by anyone other than Reginald and Charlene Rucker. The property is described as "Lot 9, in Block 125 of Leslie Estates Section Fourteen, According to the Plat thereof, as Recorded in Plat Book 116, at Page 95 of the Public Records of Dade County." In May 1996 the property was sold by the Veteran's Administration to Reginal Rucker, Charlene Rucker, and Connie White. Connie White is an employee of the Department, and a former employee at Non-Secure Detention Home. Ms. White's job duties do not include determining the facilities in which juveniles will be placed. For a two-week period, Kenneth Williams supervised Ms. White. At the time that the proposals were being evaluated, Mr. Williams was not supervising Ms. White nor was he aware that Ms. White had any interest in the property proposed to be leased by Next Step. Allen Hepburn knows Connie White. He also knows Connie White's sister, Gladine White, both socially and professionally. Mr. Hepburn is acquainted with Gladine White's husband. Mr. Hepburn attends the same church as Connie White and Gladine White. He does not know either Reginald Rucker or his wife, Charlene Rucker. Mr. Hepburn was not aware that Connie White had any interest in the property which Next Step proposed to use if it received the contract. The RFP set out the proposal award criteria. The proposals were to be evaluated on the statement of work, organizational capability, management approach, and past performance. The evaluation areas were weighted with 65 percent for statement of work, 10 percent for organizational capability, 15 percent for management approach, and 10 percent for past performance. The percentage used in the evaluation of past performance was subdivided as follows: Historical Implementation 1% Educational achievements 5% Recidivism rates 2% QA evaluation 2% Community involvement 1% CMBE subcontracting 1% The RFP stated: Offers without prior Department contract experience shall receive a rating based on the average score of the other competing offers in evaluating their proposals in accordance with stated criteria. This provision of the RFP was not protested within the time frames provided in Section 120.57(3), Florida Statutes, and the RFP. Fifty points was the maximum number of points which could be awarded for past performance. The past performance evaluation consisted of five areas which could receive from zero to ten points. The evaluators were given a scale by which to award points. If the proposal did not address an area, zero points would be awarded. If the proposal response were deemed unsatisfactory, two points would be awarded. Four points would be awarded for a poor proposal response. An adequate proposal response would be worth six points. If the proposal was evaluated to be very good, it would receive eight points. An excellent proposal response would be awarded the maximum of ten points. For the past performance section, Non-Secure Detention Home garnered 12 points from Mr. Williams, 21 points from Ms. Bustamante, and 26 points from Mr. Hepburn for a total of 59 points. Next Step did not have previous experience with the Department. Evaluator Hepburn gave Next Step a total of two points for the past performance section. Ms. Bustamante awarded Next Step ten points for the past performance portion. Mr. Williams gave Next Step a total of six points for past performance. The RFP required that Next Step be given the average of the other competing proposals because Next Step did not have previous experience. Non-Secure Detention Home had the only other competing proposal for the solicitation. Eric Stark, a contract manager for the Department, attempted to apply the provision in the RFP by averaging the scores that each of the evaluators had given Non-Secure Detention Home for past performance and using that average in computing the total scores from each of the evaluators. The average score given to Non-Secure Detention Home was 19; thus a rating of 19 was applied in the evaluation of the past performance of Next Step in lieu of the original scores given by the evaluators. The RFP requires the following: The PROVIDER shall comply with the Department of Juvenile Justice, Office of the Inspector General's Statewide Procedure on Background Screening for Employees, PROVIDERS, and Volunteers. The PROVIDER agrees, to comply with the requirements for background screening as mandated in Section 985.01, Florida Statutes. Failure to comply with the Department's background screening procedure could result in cancellation of the contract. Reginald Rucker was a former employee of Non-Secure Detention Home. Mr. Xavier Moore, the Executive Director for Non-Secure Detention Home, made a request to the Department of Juvenile Justice to do a preliminary FCIC/NCIC and DHSMV screening check on Mr. Rucker. According to Mr. Moore the screening did not indicate a problem with Mr. Rucker being employed by Non-Secure Detention Home. Mr. Rucker was employed with Non-Secure Detention Home from 1997 until June 10, 1999. On October 4, 1995, an Order to Seal Records Pursuant to Section 943.058, Florida Statutes, and Florida Rule of Criminal Procedure 3.692 was issued in the Circuit Court of the Ninth Judicial Circuit in and for Osceola County, Florida, sealing all records pertaining to Reginald Rucker's arrest on January 13, 1990, by the Florida Highway Patrol for cocaine and marijuana possession. The order stated that Mr. Rucker was not adjudicated guilty of charges stemming from the arrest. The RFP did not require the proposers to submit a financial statement or audit; however, the evaluators were asked to rate the proposals based on whether an acceptable financial statement or audit was included. Neither Next Step nor Non-Secure Detention Home submitted a financial statement or audit. Next Step received the following points for its non- existent financial statement: eight points from Mr. Hepburn; zero points from Mr. Williams; and zero points from Ms. Bustamante. For its nonexistent financial statement Non-Secure Detention Home received the following scores: six points from Mr. Hepburn; a N/A which equated to zero points from Mr. Williams; and six points from Ms. Bustamante.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered awarding the contract for a 16-bed, non-secure detention program to The Next Step Adolescent and Youth Community Center, Inc. and dismissing the protest of Non-Secure Detention Home, Inc. DONE AND ENTERED this 14th day of September, 1999, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 14th day of September, 1999. COPIES FURNISHED: Walter S. Pesetsky, Esquire Pesetsky & Zack, P.A. 1367 Northeast 162nd Street North Miami Beach, Florida 33162 Scott C. Wright, Esquire Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 William G. "Bill" Bankhead, Secretary Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Robert N. Sechen, General Counsel Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100
Findings Of Fact Cirilo Alvarez, at all times pertinent to the allegations in the complaint, operated an adult congregate living facility in Lake City, Columbia County, Florida, Briar's Haven Adult Care Center, under license number 03-12- 0128-BPS, issued by the Florida Department of Health and Rehabilitative Services. In late July or early August, 1982, Respondent, who is a psychiatric nurse specialist and who works full time at North Florida State Mental Hospital (Hospital) at Macclenny, Florida, took Woodrow Harrison, an elderly patient at that institution, into his home, Briar's Haven Adult Care Center, on pass status from the Hospital for periodic short visits. Ultimately, on July 30, 1982, Harrison was released from Macclenny and began living full time at Respondent's facility. On August 3, 1982, Sharon Stucky, a registered nurse case manager for the North Florida Mental Health Center (Center) in Lake City, Florida, did an intake interview with Harrison, who had just been released from the Hospital and who was living at Respondent's facility. Mr. Harrison was brought into the Center by Respondent's wife. Records from the Hospital pertaining to Harrison, which came to the Center, reflected that he suffered from a seizure disorder and a diabetic condition. His medication consisted of 300 mg. of Dilantin daily and 30 mg. of phenobarbital daily, and he was to receive a daily insulin injection. At the time of his release from the Hospital, he was furnished with a thirty-day supply of these medications. On the afternoon of August 13, 1982, Mr. Alvarez went into the Center with Mr. Harrison and asked to see Ms. Stucky. Respondent indicated that Mr. Harrison was having many physical problems. Earlier in the day, he had taken Harrison back to Macclenny to have him readmitted for seizures, incontinence, etc., even though he was taking his medications, but officials at the Hospital refused to admit him. Mr. Alvarez wanted him admitted to some facility in Lake City. Stucky, indicating she would have to talk with Harrison before taking any action, did so and felt she could see no change in his condition since her first interview of him on August 3, and she decided she could not justify having him recommitted to the mental hospital. Since Stucky wanted to find out if the seizures were the result of a physical problem, and she could not do a physical herself, she requested that Respondent take Harrison to a doctor for an examination. The Respondent again demanded that Harrison be admitted and, when Ms. Stucky refused, stated he would take Harrison to the hospital and leave him. Ms. Stucky talked with her supervisor to see if there was any way that Harrison could be readmitted to Macclenny, and it was determined there was not. When the information was related to Mr. Alvarez, he departed with Mr. Harrison. Respondent then took Harrison to the emergency room at Lake City's Lake Shore Hospital. After a chart was prepared on Harrison, Alvarez departed, leaving Harrison there without his medications. When Alvarez first took Harrison in, he was told there would be an hour wait before Harrison could be seen. Alvarez asked if Harrison could sit there and wait, and the person on duty said, "Yes." Once that was arranged, Respondent left without Harrison. According to a report of the doctor on duty, Harrison was confused and incapable of giving a complaint or history. As a result, evaluation of him was difficult, and his well-being was compromised. Respondent subsequently made no effort to get Harrison's drugs to him by delivering them to Ms. Stuckv, nor did he inquire where Harrison was. Respondent's actions in dropping Mr. Harrison off at the Lake Shore Hospital unsupervised, and only calling to check on his status somewhat later, constitute an intentional abandonment which could have seriously affected Harrison's health, safety, and welfare. Somewhat later the same day, Respondent called Lake Shore Hospital to find out what Harrison's status was, but Harrison had already been placed in another adult care facility by Ms. Stucky when the hospital called her and told her of Harrison's situation. Respondent did not make any other calls. Ms. Stucky visited Harrison daily at this new facility and administered his insulin shot. He appeared to be doing well there and wanted to remain, but on August 17, 1982, he was readmitted to Macclenny, where he currently resides. Harrison is incapable of taking care of himself. He has a poor memory and is somewhat retarded and childlike, according to Stucky. He has no concept of time and could not administer his medicines to himself. He could not understand the need to take his medicine or remember to take it if he could. Since Mr. Harrison was dropped off at Lake Shore without either his medicines or a change of clothing, Stucky made several telephone calls to the Respondent to retrieve them. Mr. Alvarez was always out when she called, and Stucky talked with several different females who answered the phone and with whom she left messages requesting him to call her back. Alvarez did not return any of the calls, but he states he never received them. This is rossible since, he says, neither his mother nor his wife, two of the people at home who may have received the original calls from Stucky, speaks much English. Respondent provided Mr. Harrison with all the clothes he had except those he was wearing when he came from Macclenny. Upon the advice of individuals at Macclenny who he could not remember to identify, Respondent applied for Social Security benefits to support Harrison while he was at Respondent's facility. Because Harrison had no family, Respondent sought the counsel of the legal aid office in Lake City to see if he could be appointed Harrison's legal guardian and was told he could not. In late January or early February, 1983, Respondent received one Social Security check in the amount of $1,900 made out to Harrison and Mrs. Alvarez. This check was not cashed because Harrison was no longer with the Respondent, but was returned to the Social Security Office. Harrison's medicines that were in Respondent's possession when Harrison was taken to the hospital were discarded. Respondent worked with Harrison at Macclenny for about a year before taking him to his own facility. During that time to his knowledge, Harrison never had any seizures. Respondent gave him his medications at Macclenny and knew he needed drugs. When he took Harrison to his facility, he took Harrison's drugs as well.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Secretary of the Department of Health and Rehabilitative Services enter a final order revoking the Adult Congregate Living Facility License of Cirilo Alvarez, doing business as Briar's Haven Adult Care Center. RECOMMENDED this 1st day of April, 1983 in Tallahassee, Florida. ARNOLD H. POLLOCK 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 1st day of April, 1983. COPIES FURNISHED: James A. Sawyer, Jr., Esquire District III Legal Counsel Department of Health and Rehabilitative Services 2002 NW 13th Street, 4th Floor Gainesville, Florida 32601 Mr. Cirilo Alvarez Post Office Box 2392 Lake City, Florida 32055 Mr. David H. Pingree Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
Findings Of Fact Incorporated in Finding of Fact 1. Rejected as a Conclusion of Law and not a Finding of Fact. 3-4. Incorporated in Finding of Facts 2-4. Incorporated in Finding of Facts 9-10. Incorporated in Finding of Facts 5-6. Incorporated in Finding of Fact 7. Incorporated in Finding of Fact 11. Incorporated in Finding of Fact 12. Rejected as argument and not a Finding of Fact. COPIES FURNISHED: Stanley Blanding, #036207 Liz Cloud, Chief Mark Dingle, #073356 Bureau of Administrative Code William Roberts, #908378 1802 The Capitol Virgil Page, #073743 Tallahassee, Florida 32301 Union Correctional Institution P. O. Box 221 Raiford, Florida 32803 William Joel Keel, #060263 Carroll Webb, Exec. Director Union Correctional Institution Administrative Procedures P. O. Box 221 Committee Raiford, Florida 32083 120 Holland Building Tallahassee, Florida 32301 Julia Forrester, Esquire Assistant Attorney General Department of Legal Affairs The Capitol Tallahassee, Florida 32301 Louis A. Vargas, Esquire General Counsel Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32301 Louie Wainwright Secretary Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32301
The Issue Whether a proposed amendment to Rule 33-3.0081, Florida Administrative Code, constitutes an invalid exercise of delegated authority?
Findings Of Fact Standing. The Petitioner, William Van Poyck, and the Intervenor, Robert David Roy, are inmates in the custody of the Respondent, the Department of Corrections. The Petitioner and the Intervenor are subject to the rules of the Respondent. The evidence failed to prove that the Petitioner and Intervenor are, or have been, placed in administrative confinement by the Respondent. The Respondent. Section 944.09, Florida Statutes, requires that the Respondent, the Florida Department of Corrections, adopt rules governing the administration of the correctional system in Florida. Among other things, Section 944.09, Florida Statutes, requires that rules be adopted by the Respondent governing all aspects of the operation of the prison system in Florida. Rule 33-3.0081, Florida Administrative Code. Rule 33-3.0081, Florida Administrative Code, a rule of the Respondent, governs the placement of an inmate in "administrative confinement". "Administrative confinement" is "the removal of an inmate from the general inmate population for . . . " various specified reasons. Rule 33-3.0081(1), Florida Administrative Code. By letter dated September 27, 1990, the Respondent advised the Joint Administrative Procedures Committee (hereinafter referred to as the "Committee"), of proposed amendments to Rule 33-3.0081, Florida Administrative Code. Be letter dated November 5, 1990, M. Catherine Green, an attorney with the Committee, informed the Respondent that a review of the proposed amendments to Rule 33-3.0081, Florida Administrative Code, had been completed. Ms. Green also informed the Respondent of certain "technical errors" and "substantive errors" that she found with Rule 33-3.0081, Florida Administrative Code. Ms. Green indicated that a "substantive error" referred to "errors which will result in recommended objections to the committee unless they are eliminated prior to adoption." Among the "substantive errors" identified by Ms. Green, was a comment concerning the following portion of Rule 33-3.0081(3), Florida Administrative Code: (3) Placement in administrative confinement shall be for the shortest period of time necessary to accomplish the desired results. Ms. Green's comment concerning the portion of Rule 33-3.0081(3), Florida Administrative Code, quoted in finding of fact 9 was, in pertinent part, as follows: What does "for the shortest period of time necessary to accomplish the desired results" mean? This has the effect of not notifying the inmate of the length of time in which he will be in administrative confinement and the criteria to be considered in releasing him or her. The rule discusses criteria for placing inmates in administrative confinement, but sets no criteria other than "desired results" as to when an inmate shall be released. If the two criteria are the same, please make that clear. Another of the "substantive errors" identified by Ms. Green, was a comment concerning the following portion of Rule 33-3.0081(4)(a), Florida Administrative Code: (4)(a) An inmate may be placed in administrative confinement by the senior correctional officer after an informal hearing when no reasonable alternative exists. The reason for placement shall be explained to the inmate, and he shall be given an opportunity to present his views on the matter to the senior correctional officer. When the senior correctional officer places an inmate in administrative confinement, this action shall be documented on a Report . . ., including the reasons for the action and a summary of the inmate's comments or objections. The inmate may also submit a written statement. Rule 33-3.0081(4)(b), Florida Administrative Code, provides for review of the senior correctional officer's "informal hearing" and Rule 33-3.0081(4)(c), Florida Administrative Code, provides for a 48-hour delay in the "informal hearing" in case of certain emergencies. Ms. Green's comment concerning the portion of Rule 33-3.0081(4)(a), Florida Administrative Code, quoted in finding of fact 11 was, in pertinent part, as follows: Please provide a cross reference to the rules of procedure for an informal hearing. Does the review procedure conflict with provisions of Chapter 33-29, F.A.C.? Please clarify what the phrase "when no reasonable alternative exists" means in reference to an inmate's confinement after an informal hearing. . . . . In a letter dated January 23, 1991, the Respondent, through a Senior Attorney, responded to Ms. Green's comments. The following response to Ms. Green's comments concerning Rule 33- 3.0081(3), Florida Administrative Code, was made: The Department of Corrections will delete the phrase "for the shortest period of time necessary to accomplish the desired results" and replace it with "continue until the factors which created the need for protective management have been resolved". The Respondent subsequently proposed to amend Rule 33-3.0081(3), Florida Administrative Code, by deleting the phrase "for the shortest period of time necessary to accomplish the desired results" and replacing it with the phrase "continue until the factors which created the need for protective management have been resolved". The proposed amendment to Rule 33-3.0081(3), Florida Administrative Code, does not substantively change the circumstances under which an inmate placed in administrative confinement will be returned to the general inmate population. Under Rule 33-3.0081(3), Florida Administrative Code, prior to the proposed amendment, "the shortest time possible" occurred when the factors which necessitated placing an inmate in administrative confinement no longer applied. The proposed amendment merely clarifies when "the shortest time possible" has occurred. The following response to Ms. Green's comments concerning Rule 33- 3.0081(4)(a), Florida Administrative Code, was also made in the January 23, 1991, letter: The Department of Corrections will delete the phrase "an informal hearing" and insert "being advised of an incident or situation which prohibits the inmate from remaining in open population without endangering himself or others or compromising the security of the institution". The Respondent subsequently proposed to amend Rule 33-3.0081(4)(a), Florida Administrative Code, by deleting the terms "informal hearing" and replacing them with the following underlined language: (4)(a) An inmate may be placed in administrative confinement by the senior correctional officer after being advised of a situation or incident which prohibits the inmate from remaining in open population without endangering himself or others or compromising the security of the institution, if the situation cannot be resolved. The reason for placement shall be explained to the inmate, and he shall be given an opportunity to present his views on the matter to the senior correctional officer. When the senior correctional officer places an inmate in administrative confinement, this action shall be documented on a Report . . ., including the reasons for the action and a summary of the inmate's comments or objections. The inmate may also submit a written statement. . . . The proposed amendment to Rule 33-3.0081(4)(a), Florida Administrative Code, does not substantively change the manner in which an inmate is informed that he or she is being placed in administrative confinement. The "informal hearing" previously required in Rule 33-3.0081(4)(a), Florida Administrative Code, required no more than the proposed amendment provides for. By eliminating the terms "informal hearing" the proposed rule amendment eliminates any confusion as to whether some more formal process is to be followed by the Respondent in informing an inmate that he or she is being placed in administrative confinement. The Notice of Proposed Rulemaking which contained the proposed amendments at issue in this proceeding was subsequently filed by the Respondent with the Bureau of Administrative Code, for publication, and with the Committee. The Notice of Proposed Rulemaking included the following "purpose and effect" clause: The proposed amendments are needed in order to correct technical and substantive errors noted by the Joint Administrative Procedures Committee. The proposed amendments provide clarification of policies and procedures regarding administrative confinement and protective management. The purpose and effect clause is consistent with the substantive changes to Rule 33-3.0081(3) and (4)(a), Florida Administrative Code, at issue in this proceeding. The weight of the evidence failed to prove that the proposed amendments to Rule 33-3.0081, Florida Administrative Code, at issue in this proceeding are arbitrary or capricious. The weight of the evidence failed to prove that any of the suggestions concerning Rule 33-3.0081, Florida Administrative Code, made by Ms. Green were ever approved, adopted, or reviewed by the Committee. In fact, Ms. Green indicates in her letter that "substantive errors" she perceived would be recommended as objections to the Committee only if they were not eliminated prior to adoption. Since the "substantive errors" at issue in this proceeding were eliminated, they were apparently never recommended or considered by the Committee.
The Issue Whether Petitioner has demonstrated, by clear and convincing evidence, that he is rehabilitated from his disqualifying offenses, and if so, whether Respondent would abuse its discretion in denying his request for an exemption from disqualification from employment. 1 All references to Florida Statutes are to the 2020 codification.
Findings Of Fact The Parties Petitioner is a 62-year-old male who seeks an exemption from disqualification from employment from positions that require compliance with level II background screening requirements under section 435.04, Florida Statutes. Specifically, Petitioner is seeking to become the owner and administrator of a facility that would provide housing and related services for persons who are in isolation due to having been infected with the virus that causes Covid-19. Because such facilities are subject to regulation by Respondent, pursuant to section 435.06, Petitioner is subject to the background screening requirements and restrictions of section 435.04 regarding his employment in positions of trust working with individuals who would be temporarily residing in such facilities. Respondent is the agency responsible for conducting background screening under section 435.04 for persons seeking to become employed in a position of trust in connection with assisted living facilities, such as that sought to be established by Petitioner. Evidence Presented at Final Hearing As more fully discussed below, section 435.04(2) establishes a list of criminal offenses that are considered "disqualifying offenses" for purposes of disqualifying persons who have been convicted of, or pled nolo contendere to, the listed offenses, from being employed in a position involving contact with vulnerable persons.2 Between 1992 and 2015, Petitioner was arrested 25 times. The competent substantial evidence establishes that Petitioner was convicted of, or pled nolo contendere to, six disqualifying offenses. Petitioner's six disqualifying offenses are as follows: dealing in stolen property, in violation of section 812.019, Florida Statutes, committed on February 12, 1982; burglary and aggravated assault with a deadly weapon, in violation of sections 810.02 and 784.021, Florida Statutes, committed on November 18, 1992; possession of cocaine, in violation of section 893.13, Florida Statutes, committed on November 3, 1993; sale of cocaine, in violation of section 893.13, committed on November 3, 1998; and resisting officer with violence, in violation of section 843.01, Florida Statutes, committed on November 3, 1998. Petitioner was incarcerated for approximately 11 years, and was released from incarceration in or about 2009. Although Petitioner has been arrested 11 times since he committed his last disqualifying offense in 1998, all but one of those arrests were disposed of by the criminal charges being abandoned, or by nolle prosequi, which means that the charges were dropped.3 Of the arrests subsequent to Petitioner's most recent disqualifying offense, the great majority of them stemmed directly from a difficult personal relationship in which Petitioner's then—now former—girlfriend would frequently call the police when they argued, resulting in Petitioner being 2 "Vulnerable person" is defined in section 435.02 as a minor or a vulnerable adult. A "minor" is a person who has not attained the age of 18 years. § 1.01(13), Fla. Stat. A "vulnerable adult" is a person 18 years of age or older whose ability to perform the normal activities of daily living or provide for his or her own care or protection is impaired due to a mental, emotional, sensory, long-term physical, or developmental disability or dysfunction, or brain damage, or the infirmities of aging. § 415.102(28), Fla. Stat. 3 A nolle prosequi ends a criminal proceeding. Wilkins v. State, 90 So. 3d 305, 306 (Fla. 1st DCA 2012), citing State v. Aguilar, 987 So. 2d 1233, 1235 (Fla. 5th DCA 2008). arrested. Importantly, a review of the documentation of these arrests reveals that all of the charges related to these incidents were dropped or abandoned. Petitioner testified, credibly, that his former girlfriend was incarcerated for filing false reports with police, and that he obtained an injunction requiring her to stay away from him. Importantly, Petitioner testified, credibly and persuasively, that he no longer is in a relationship with this individual. It has been approximately six years since Petitioner's most recent arrest. He has completed all court-ordered requirements and has fully paid all related fines and fees. Petitioner's only conviction since his most recent disqualifying offense was in May 2014, for possession of marijuana. At the final hearing, Petitioner testified, credibly and persuasively, that he was wrongfully charged with marijuana possession in connection with police having been called by neighbors to investigate him for burglary of his own dwelling. Petitioner credibly testified that he was counseled by his lawyer, Dean Mosley, not to contest the charges because if he went to trial and was convicted, he could be sentenced to a year in jail. Consequently, Petitioner pled guilty and was fined $227.00, plus court costs. Mosley, who testified on behalf of Petitioner at the final hearing, confirmed Petitioner's testimony regarding this incident. Petitioner obtained a bachelor's degree from Florida Agricultural and Mechanical University in 1983, and a technical degree in Computer and Engineering Technology from Tampa Technical Institute in 1984. Petitioner also completed the adult congregate living facility Extended Congregate Care Program provided by the Department of Health and Rehabilitative Services, Respondent's predecessor agency, in 1995, and completed a course in HIV/AIDS exposure to bloodborne pathogens provided by Emergency Medical Consultants, Inc., in 1998. Between 1994 and 1996, Petitioner served as co-administrator for Bowe's Retirement Home, Inc., a licensed assisted living facility owned and operated by his mother. Although he no longer is a co-administrator for this facility, he currently serves as its marketing executive. Additionally, Petitioner owns and operates Bowes Restorative Care/Services, through which he provides transitional housing for persons who are homeless and HIV-positive, in conjunction with the Department of Health and the Mental Health Court of St. Lucie County, Florida. Petitioner's transitional housing facility was the first in the Treasure Coast region of Florida to be approved by the U.S. Veterans Administration, and provides a transitional residential facility setting for homeless veterans as they transition into an independent residential living arrangement. Petitioner has owned and successfully operated his transitional housing facility since 2011. Petitioner testified, credibly, that he has not used drugs for at least 20 years, and that he does not drink alcohol. Petitioner has applied for the exemption at issue in this proceeding because he desires to own and operate a Covid-19 isolation facility, which would provide transitional residential housing for persons who are isolating from others while recovering from Covid-19. Petitioner also noted that he eventually would like to assume operation of his mother's retirement home business, and pass it on to his children to operate as a family business. Petitioner submitted numerous character references and letters of recommendation prepared on his behalf to Respondent as part of his exemption application package. Laura Saputo, a mental health court case worker with the Indian River County Sheriff's Office, wrote a character reference letter, dated March 10, 2020, on behalf of Petitioner. Saputo stated that in working in the community, Petitioner demonstrates empathy, compassion, caring, a strong positive belief system, and a true desire to assist people, all of which are vital characteristics for helping those in need better their lives. She also stated that Petitioner works well with the Mental Health Court in Indian River County, has a great rapport with group home clients, and conducts himself in a calm, professional manner, even when dealing with difficult clients. Based on her experiences in working with Petitioner, Saputo stated that she has a great deal of faith in Petitioner and places her trust in him. Karleen Russ, a mental health counselor, also wrote a letter of recommendation on behalf of Petitioner regarding his request for an exemption. Specifically, Russ stated that she has known Petitioner for many years and that, in her experience, he has always exhibited a professional demeanor, and character, and high moral standard as a mental healthcare provider; and that he has worked diligently with clients having serious and persistent mental health, substance abuse, geriatric, and criminal issues. She recommended that he be granted the approval necessary to enable him to continue his work in the community. Daniel Bin, a certified behavioral health case manager, also wrote a letter of recommendation on behalf of Petitioner. Bin stated that he has worked with Petitioner in a professional setting, and that Petitioner exhibits preparation, skill in successfully completing complex tasks, follow-up efforts, dedication to perfection, professionalism, and a superb work ethic. He noted that any company would be improved by having Petitioner as an employee. Eric Eschmann, a Florida registered professional guardian, wrote two letters of recommendation on Petitioner's behalf. Eschmann stated that Petitioner took on the responsibility of housing and caring, for five years, for a particularly high maintenance ward who received care due to mental incapacity, and that Petitioner accurately and proficiently manages the ward's diet, medications, appointments, and shopping, while assuring that the ward is well-fed; does not elope; does not harass or assault others; and is housed in a clean and safe environment. Bin also praised Petitioner's communication in keeping him (Bin) apprised of developments regarding the ward requiring his attention, while proficiently handling the matters that do not require Bin's involvement. He highly recommended Petitioner for any role having to do with the management or care of persons requiring assistance. Morgan Libbey, a court-appointed professional guardian and executive of the Public Guardianship Program of Indian River County, Inc., provided a statement that she has worked with Petitioner for approximately two years through her organization's client services program. She stated that Petitioner has provided excellent care and oversight of a ward of the court, and that in doing so, provided crucial services for the community, while demonstrating honesty and compassion for others. Florida Representative Larry Lee, Jr., also wrote a character reference letter on Petitioner's behalf. Based on his more than 30 years of friendship with Petitioner, Lee described Petitioner as a very caring and committed person, determined to help others. He also noted that Petitioner "made choices that were not advantageous early in life," but that he had accepted responsibility for his mistakes and learned from them. Lee recognized and commended Petitioner for his work in the community, and appealed "to any organization that can assist him" to help him continue his work. Colleen Barnes, a realtor with Sun Group Realty, Inc., wrote a character reference letter for Petitioner. She stated that she has known Petitioner in a professional capacity for approximately five years, and she characterized him as warm, compassionate, personable, highly motivated, and "capable of achieving any goal he sets his mind to." She commended him for his cool composure and confidence, which enables him to keep situations under control while working with many diverse personalities in his profession. Petitioner also presented the testimony of three character witnesses at the final hearing. Barry Mitchell, a certified public accountant who has been Petitioner's friend for over 60 years, testified at the final hearing and also wrote a letter of recommendation that was included in Petitioner's application package. In his letter, Mitchell characterized Petitioner as being a caring, productive person who has "rolled up his sleeves and gone to work for the community" in caring for physically and mentally challenged persons in his home. He also noted that Petitioner works with his mother to assist her in operating her retirement living facility, and that he is a "thinker and a doer." At the final hearing, Mitchell testified that Petitioner is a hard-working, caring individual with a vision of making his community a better place. In Mitchell's view, Petitioner's talent, hard work, and potential to help his community far outweigh his criminal record, and he urged that Petitioner be granted the exemption, so that he can have the opportunity to contribute to his community in a healthcare provision setting. Arthur Lewis Baker also testified at the final hearing on Petitioner's behalf. Baker is a certified peer recovery specialist who is employed with New Horizons, a community mental health and substance abuse provider, in St. Lucie County. Baker has known and worked with Petitioner for approximately four years in connection with placement, by the Indian River Mental Health Court, of clients in Petitioner's transitional residential facility. Baker testified that Petitioner has worked with extraordinary needs clients who have schizophrenia or bipolar disorder, and provides excellent, compassionate care for these individuals. Specifically, Baker testified that Petitioner always exhibits a calm demeanor when interacting with mental health clients, and ensures that they are well-fed, given their medications, taken to doctor's appointments, and are otherwise well-cared for. Dean Mosley, an attorney who has personally known Petitioner for more than 40 years, testified at the final hearing and also wrote a character reference letter that was included in Petitioner's exemption application package. Mosley particularly noted Petitioner's sense of empathy; strong work ethic; extensive knowledge of assisted living facilities; and dedication to continuing, and ultimately operating, his mother's business. Respondent did not present any competent substantial evidence showing that it considered Petitioner's character reference letters as part of its review and decision-making regarding Petitioner's application for exemption. To this point, Respondent's witness, Vanessa Risch, testified that she did not know whether Respondent considered or verified the references included in Petitioner's application in reviewing Petitioner's exemption request.4 Petitioner testified, credibly and persuasively, that he is very remorseful regarding his criminal offenses over the years. He presented compelling testimony to the effect that he understands and takes responsibility for his actions, and that he has taken substantial steps to change the circumstances in his life that led to him committing crimes. As more extensively discussed above, Petitioner's actions in successfully and safely operating a transitional residential facility while not having been arrested in six years, and not having been convicted of a crime in seven years, bear out Petitioner's testimony that he has changed his life. Petitioner testified, credibly and persuasively, that he is committed to taking whatever actions are necessary to enable him to own and operate the Covid-19 isolation facility for which he seeks the exemption, including not committing criminal offenses. Importantly, Petitioner understands that if he were again to commit a criminal offense, any exemption that he may be granted could be revoked. As Petitioner put it, he is asking for a second chance in order to be able to work in an area to which he is dedicated, and in which he has extensive knowledge and successful experience. 4 The pertinent testimony regarding Respondent's consideration of Petitioner's references as part of its decision-making process regarding his exemption request was as follows: "Q: Well, was that [considering and contacting Petitioner's character references] done, to your knowledge? A: I . . . I don't make the decision, I'm not sure." Findings of Ultimate Fact Upon consideration of the competent substantial evidence in the record, it is determined that Petitioner has demonstrated, by clear and convincing evidence, that he is rehabilitated from his disqualifying offenses.5 Under section 435.07(3)(a), matters that are relevant to demonstrating rehabilitation include the circumstances surrounding the criminal incident for which an exemption is sought, the time period that has elapsed since the incident, the nature of the harm caused to the victim, the history of the employee since the incident, and other evidence indicating that the employee will not present a danger if employment is allowed. Additionally, under section 435.07(3)(b), the agency may consider, as part of its deliberations regarding an applicant's rehabilitation, arrests or convictions of the applicant subsequent to the conviction for the disqualifying offense, even if arrest or conviction is for a crime that is not a disqualifying offense. As discussed above, it has been over 20 years since Petitioner committed his last disqualifying offense. Although Petitioner has been arrested multiple times since that disqualifying offense, all but one of those arrests resulted from a now-former girlfriend calling law enforcement during arguments with Petitioner, resulting in Petitioner being arrested. Crucially, the charges for each of those arrests were dropped. Petitioner has exhibited the sound judgment to extricate himself from that relationship, and since doing so, has not been arrested. Moreover, his only conviction since his last disqualifying offense, for possession of marijuana, was the result of having pled guilty at the advice of counsel in order to avoid risking a potentially lengthy jail sentence. Petitioner's conduct over the past six years since his last arrest is most probative in demonstrating that he is rehabilitated. 5 See J.D. v. Dep't of Child. and Fams., 114 So. 3d 1127, 1131 (Fla. 1st DCA 2013)(whether an applicant for an exemption has demonstrated rehabilitation is an ultimate issue of fact). Specifically, as discussed in detail above, Petitioner has successfully operated, for the past several years, a transitional residential facility for veterans and other individuals in need of a stable, caring environmental while they transition into permanent living arrangements. Importantly, Petitioner is currently engaged in precisely the kind of activity, in the same type of residential setting, in which he would continue to work if he is granted the exemption. That he has successfully worked with vulnerable individuals for several years, without any problems whatsoever, is strong evidence that Petitioner is rehabilitated and will not present a danger or threat to vulnerable individuals staying in his facility. Furthermore, the fact that the Mental Health Court of Indian River County has placed individuals in Petitioner's care at his transitional residential facility is particularly strong evidence that Petitioner will not present a danger or threat to vulnerable individuals residing in his residential care facility. To this point, the fact that the judicial branch— which obviously is fully privy to the information regarding Petitioner's background—has deemed Petitioner sufficiently rehabilitated and trustworthy to place vulnerable individuals in his care constitutes compelling evidence that Petitioner is rehabilitated from his disqualifying offenses and will not present a danger to vulnerable individuals entrusted to his care. As discussed above, Petitioner presented numerous character references, including letters from, and the in-person testimony of, persons who have worked with Petitioner regarding vulnerable individuals placed in Petitioner's facility through the mental health court program. To a person, each of these references attested to Petitioner's dedication, compassion, and trustworthiness in working with, and providing a safe, stable environment for, the individuals entrusted to his care. Additionally, Petitioner presented the compelling, persuasive testimony of additional witnesses at the final hearing, further attesting to his trustworthiness, diligence, compassion, energy, and dedication in providing a safe, stable transitional residential environment for vulnerable individuals. Respondent did not present any competent evidence showing that it considered Petitioner's character reference letters in reviewing his request for an exemption, and it did not provide any specific evidence at the final hearing showing that, notwithstanding Petitioner's six-plus years of exemplary conduct during which he has successfully operated a facility in which he has provided care to vulnerable individuals placed in his facility by the court, he is not rehabilitated and, thus, may present a threat to vulnerable individuals such that his exemption request should be denied. In sum, the competent, persuasive evidence clearly and convincingly establishes that Petitioner is rehabilitated from his disqualifying offenses such that he should be granted an exemption from employment disqualification in this proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order granting Petitioner's request for an exemption from disqualification. DONE AND ENTERED this 11th day of March, 2021, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of March, 2021. COPIES FURNISHED: Katie Jackson, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 7 Tallahassee, Florida 32308 Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Simone Marstiller, Secretary Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 1 Tallahassee, Florida 32308 James D. Varnado, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Garnett Dwayne Bowe 2208 Avenue East Fort Pierce, Florida 34947 Shena L. Grantham, Esquire Agency for Health Care Administration Building 3, Room 3407B 2727 Mahan Drive Tallahassee, Florida 32308 Thomas M. Hoeler, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308
Findings Of Fact Petitioner, Jean Colden (Colder), was employed full time by Respondent, Department of Corrections (Department), as an Accountant II at Broward Correctional Institution. The evidence establishes that Colden was absent without authorized leave on three consecutive workdays, to wit: October 1-3, 1985. At no time did Colden notify the Department of her intention not to appear for work on those dates, and at hearing she offered no explanation for her absences. By certified letter dated October 4, 1985, return receipt requested, Colden was advised that her absence from work since October 1, 1985, was unauthorized and that, pursuant to Rule 22A-7.10(2), F.A.C., she was deemed to have abandoned her position and resigned from the Career Service. The letter further advised Colden of her right to petition the Department of Administration for a review of the facts, and whether they constitute abandonment. Colden timely petitioned the Department of Administration for review On November 5, 1985, he Department of Administration accepted Colden's petition and requested the assignment of a Hearing Officer from the Division of Administrative Hearings to conduct the final hearing.
Findings Of Fact Respondent Nina Diamond has taken care of other people's children at least since 1961. As long as the law has required such registration, her residences have been registered as home day care centers. In addition, she has taken care of more than 150 foster children. Five or six years ago she obtained an emergency shelter family home license for the first time. After routine annual renewals, the question arose whether one Thomas Floyd Mash was sharing the licensed premises, a house at 2139 Faulk Drive in Tallahassee, with her. Mr. Mash, who was convicted in 1987 of armed robbery and kidnapping, Respondent's Exhibits Nos. 7, 8 and 9, spent time in prison and is now on probation. On March 29, 1991 Mr. Mash and Ms. Diamond purchased the house at 2139 Faulk Drive, taking title and giving a mortgage together in both their names. Respondent's Exhibits Nos. 5 and 6. Ms. Diamond and her family furnished the down payment, but her income was (and remains) too low to borrow the money secured by the mortgage by herself. At least until November of 1991, Mr. Mash helped with mortgage payments. When they bought the house, Mr. Mash, Ms. Diamond and her son, a middle schooler, moved in. In late November of 1991, Mr. Mash rented a room in Beth Edwards' home, and Ms. Diamond told HRS personnel that he had moved out. Until recently, petitioner told probation officers that Mr. Mash, who receives his mail at 2139 Faulk Drive, lived with her, while assuring HRS that he did not. Since November of 1991, Cathy Asbell has seen Mr. Mash at 2139 Faulk Drive with some frequency, including on or about September 4, 1993, in the late afternoon. Martha Salas assumed he lived there, so often did she see him when she dropped off three-year-old Esmerelda between eight and ten o'clock evenings, on her way to work. She last saw him at the house two to three weeks before the hearing. Ms. Diamond herself testified that he was wont to come for one- to three-hour visits afternoons, straight from driving the dump truck he is hired to operate. HRS counsellors Rosina Roberts Butler and Irene Ruth Adams (who has since taken other employment) saw Mr. Mash at 2139 Faulk Drive toward the end of 1991 and the beginning of 1992. He was at the house every Saturday morning Ms. Adams came by. Mid-day January 28, 1993, Ms. Butler saw Mr. Mash enter the house and make sandwiches for five or six children Ms. Diamond was caring for at the time. Among Mr. Mash's obligations as a probationer has been a duty to keep the authorities apprised of a current address. He has consistently given 2139 Faulk Drive as his address, before and after December 9, 1991, the only pertinent date on which he gave any other address. Probation officers found him at the house on several occasions. On July 22, 1993, a probation officer saw him driving away from the house at quarter past six o'clock in the morning.
Recommendation It is, accordingly, RECOMMENDED: That HRS deny petitioner's application for relicensure as an emergency shelter family home. DONE AND ENTERED this 6th day of December, 1993, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2035 Petitioner's proposed finding of fact No. 1 has been adopted, in substance, insofar as material. With respect to petitioner's proposed findings of fact Nos. 2 and 3, it was not clear how long the room was rented for or that Mr. Mash ceased to reside at 2139 Faulk Drive while the room was rented. Respondent's proposed findings of fact Nos. 1, 2, 3, 4, 6 and 8 have been adopted, in substance, insofar as material. With respect to respondent's proposed finding of fact No. 5, it was not proven that petitioner represented herself as Mr. Mash's wife. Respondent's proposed finding of fact No. 7 pertains to a subordinate matter. With respect to respondent's proposed finding of fact No. 10, it was not clear how long the room was rented for or that Mr. Mash ceased to reside at 2139 Faulk Drive while the room was rented. COPIES FURNISHED: Marc E. Tapps, Esquire Legal Services of North Florida, Inc. 2119 Delta Boulevard Tallahassee, Florida 32303-4220 Charles A. Finkle, Esquire District Legal Counsel 2639 North Monroe Street Tallahassee, Florida 32399-2949 Robert Powell, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Kim Tucker, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact Introduction On August 15, 1983, petitioner, Rehab Hospital Services Corporation (Rehab), filed an application with respondent, Department of Health and Rehabilitative Services (HRS), seeking a certificate of need authorizing the construction and operation of a 40-bed comprehensive medical rehabilitation hospital in Volusia County, Florida. The proposed cost was then estimated to be $7.2 million. A rehabilitation facility is one which provides a program of comprehensive medical rehabilitation services and which is designed, equipped, organized and operated to deliver such services. According to Rule 10-5.11(24), Florida Administrative Code, a comprehensive medical rehabilitation service is defined as "intensive care providing a coordinated multi-disciplinary approach to patients with severe physical disabilities such as spinal cord injury, brain injury, stroke, multiple sclerosis, cerebral palsy, hemiplegia, quadriplegia, paraplegia, and other physical disabilities which require an organized program of integrated and coordinated services." After reviewing the application, HRS issued its proposed agency action on January 19, 1984 wherein it proposed to deny the application for the following general reasons: Using the rehabilitation bed need methodology presented in Chapter 10-5.11(24)c, FAC, and subtracting away from this need the current number of rehabilitation beds in the service districts there exists an excess of 55 rehabilitation beds. Further, the occupancy standard presented in Chapter 10-5.11(24)c, FAC, of 85 percent, for existing rehabilitation beds before additional beds can be approved has not been met. The agency's decision prompted this proceeding. Applicants Proposal Petitioner is an experienced health care provider. It currently owns and operates some nine hospitals throughout the United States, of which at least seven are comprehensive rehabilitation facilities. Most recently, Rehab was issued a certificate of need to construct and operate a tenth rehabilitation facility in Melbourne, Florida. Rehab proposes to construct a 40-bed comprehensive medical rehabilitation hospital in Volusia county. Although a specific site has not been determined, the facility will probably be built in Daytona Beach just north of U.S. 92 and south of Mason Avenue. The revised cost is $6.9 million. In the new facility, Rehab intends to offer or make available at a minimum the following rehabilitation services: physician services, nursing services, physical therapy, speech therapy, prosthetic orthopedic and stroke devices and services, inhalation therapy, psychological services, occupational therapy, skilled rehabilitation nursing care, dietary services, social work and vocational evaluation work adjustment. The facility will be accredited by the Commission on Accreditation of Rehabilitation Facilities (CARF). All necessary specialized staff will be available and hired by Rehab. Daytona area acute care hospitals will provide hospital services such as high technology radiology, IV preparation and drug toxic testing. In addition, Rehab will be able to develop cooperative arrangements and a formal referral system with local acute care hospitals, neurologists, orthopedists, psychiatrists, local physicians and community organizations such as Easter Seals. After the proposed agency action was issued, but prior to final hearing, Rehab and Memorial Regional Rehabilitation Center, Inc. (Memorial), a rehabilitation hospital in Jacksonville, entered into a joint venture whereby Memorial would transfer twenty of its unused licensed beds to Rehab for its new facility. The agreement further provided that the two would be equal partners in the new venture. Therefore, Rehab is seeking to add only twenty beds to the District count. Applicant's primary service area will be Volusia County, which had a 1980 population of 329,000. That figure is projected to increase 37 percent by the year 1990. The only other center of population in the service district is Jacksonville, where the population was 594,000 in 1980. Given this maldistribution of population within the service district, the projected growth in the Daytona area, and the fact that only one other rehab facility is located within the district, Rehab contends that a new facility in the Daytona area is justified. Competing Facilities The proposed facility lies within HRS District IV which includes Baker, Nassau, Duval, Clay, St. Johns, Flagler and Volusia Counties. The two principal population centers within District IV are Jacksonville and Daytona. At the present time there is only one existing comprehensive medical rehabilitation hospital within District IV. That facility is Memorial in Jacksonville. Memorial, which initially opposed but now supports the application, is licensed to operate a 128-bed facility. However, its physical plant can accommodate only 110 beds. In addition to Memorial, there are two rehab facilities in the Orlando area, which lies in adjacent District VII. These are Florida Hospital and Humana Lucerne with 49 and 35 beds, respectively. However, Humana Lucerne confines its admissions principally to spinal cord injuries, while Florida Hospital focuses chiefly upon stroke victims. Need for Facility in Relation to State and District Health Plans (Subsection 381.494(6)(c)1.,F.S.) The applicable State Health Plan (Plan) was not made a part of this record by either party. However, the application states that the Plan does not include criteria or standards for the determination of comprehensive physical rehabilitative bed need. Although the agency witness stated that the Plan "reiterates the criteria that are found in Chapter 10-5.11(24)," he did not provide any specific references in the rule or Plan to support this statement, or how the proposal was inconsistent with the Plan. Accordingly, it is found that the Plan has no applicability to this proceeding, and applicant need not demonstrate that its proposal is consistent with the Plan. The District IV Health Plan (DHP) is prepared by the Health Planning Council of Northeast Florida, Inc. (Council). Copies of relevant portions of the 1985, 1984 and 1983 DHP's were introduced into evidence as petitioner's exhibits 11, 12 and 13, respectively. The parties have stipulated that the 1985 DHP contains two relevant recommendations: (a) that HRS not give consideration to approving additional comprehensive rehabilitation beds in District IV through the year 1986, at which time the Council would again review this recommendation, and (b) that HRS consider the transfer of comprehensive medical rehabilitation beds from Duval County to Volusia County as long as the total number of beds in the district does not increase. It is apparent, then, that Rehab's proposal is only partially consistent with the District Health Plan. In making the above two recommendations, the Council's Executive Director acknowledged that there "is very little interaction between the northern and southern population concentrations" of the District, as well as "the health delivery systems located therein." Further, he agreed that the health delivery systems in Jacksonville and Daytona are essentially independent from one another. The 1985 Plan also premised its recommendations in part upon the assumption that HRS rules "allow an exception to the need methodology if 10 percent of the population live more than two hours normal travel time from a center. Populous Volusia County does not qualify for the exception because other centers outside the district are within the two hour limitation." In fact, there are no HRS rules defining accessibility to be when 90 percent of a district's population lives within two hours driving time of a rehabilitation facility. The Council also made no travel time studies to verify its assumption relative to the two hour travel time within the district, made no investigation as to the number of Volusia County residents utilizing non-district hospitals, and was not aware of admission policies for rehab patients at other facilities outside the district, or the fact that one Orlando hospital principally confines its rehab admissions to spinal cord cases. The DHP also recognizes that if rapid growth continues, "a comprehensive rehab center for the area may become appropriate" at some point in time. In view of the flaws in the assumptions which underpin the DHP recommendations, the consistency or inconsistency of Rehab's proposal with the DHP should be given only minimal weight in relation to the other applicable statutory and rule criteria. A proposal does not need to be consistent with the district and state health plans whenever there are "emergency circumstances which pose a threat to the public health." In this case, there are no such emergency circumstances, and therefore the exception does not apply. Availability Quality of Care, Efficiency, Appropriateness, Accessibility, Extent of Utilization, and Adequacy of Like and Existing Health Care Services in the Service District (Subsection 381.494(6)(c)2., F.S.) Rule 10-5.11(24), Florida Administrative Code, establishes the methodology for determining and projecting the need for rehabilitation beds within a district. It is noted that, unlike other methodologies which determine need on a subdistrict basis, need is calculated for rehab beds on a district- wide basis. The parties have stipulated that the present inventory of rehabilitation beds in District IV is 128, all licensed for Memorial's facility in Jacksonville. Using the formula in paragraph (b)1. of the rule, it results in a district- wide need of 79 beds in the planning horizon year of 1990. This in turn produces 49 excess beds at the present time in District IV since the present inventory numbers 128 beds. Therefore, even though Memorial does not have available the entire complement of 128 beds this portion of the rule has not been satisfied. Rule 10-5.11(24) contains "other factors to be considered in determining a need for comprehensive medical rehabilitation services, in addition to relevant statutory and rule criteria." These factors are set forth in subparagraph (b)2. of the rule. In addition, standards and criteria relative to unit size, occupancy, accessibility programs and services, accreditation, variable and optional services, and transfer and referral agreements must also be considered. These are contained in subparagraphs (b)3.-6. of the rule. In relation to the criteria set forth in subparagraph (b)2.a.-d. studies compiled by Rehab, as set forth in its exhibit 31, reveal that Volusia's population is projected to grow by 37 percent between 1980 and 1990, and that the 65 and over age segment is forecast to be the fastest growing segment of the population. This is particularly significant since testimony by Daytona area physicians established that a great number of their patients in need of rehabilitative services come from the elderly segment of the population. In addition, Volusia is projected to have 792 rehabilitation discharges in 1990 as compared with 883 in Duval. This indication of disabling conditions and chronic illness suggests a need for rehabilitation beds in the southern portion of the district. With respect to trends in utilization by third party payers, Rehab proposes to make its facility available to all level incomes and to seek a Medicaid contract. By doing the latter, it projects 53 percent Medicare patients in its first year of operation. Next, through testimony from Daytona area physicians it was established that the "existing and projected inpatients in need of rehabilitation services" are on the rise, and provide further support for the establishment of a new facility. Finally, Rehab proposes to have available a "specialized staff" as required by the rule. Accordingly, the criteria in subparagraphs (b)2.a.-d. have been satisfied and militate towards favorable action on the application. Rule 10-5.11(24)(b)3.a. requires that any new facility have no less than forty beds. Subparagraph (b)3.b. requires minimum occupancy of at least 65 percent during the first year of operation while subparagraph (b)3.d. imposes the requirement that a full array of programs and services be offered. Rehab meets all of these criteria. Finally, subparagraph (b)3.b. also provides that no proposal . . . will be approved unless the average annual occupancy rate for all existing comprehensive rehabilitation facilities and units within the . . . service district exceeds 85 percent occupancy for the preceding calendar quarter." Memorial is the only such facility in the district and, although licensed for 128 beds, it has only 110 beds in its facility at the present time. To reach the 85 percent occupancy for the licensed capacity of 128 beds, Memorial would have to fill 109 of the 110 existing beds on average. This would be virtually impossible to accomplish. Because of these unique circumstances, it is found that the 85 percent occupancy standard normally used is an inappropriate standard to apply in this case, and should not be used as a basis to deny the application. This being so, all criteria in subparagraphs (b)3.a., b. and d. have been met. Subparagraph (b)3.c. provides that "applicants for comprehensive rehabilitation services should demonstrate that at least 90 percent of the target population resides within two hours driving time under average traffic conditions of the location of the proposed facility." In this case the target population (Volusia County) is within minutes of the proposed facility and therefore satisfies the rule. On the other hand, exhibit 29, which is the only traffic study in this proceeding, and which was not credibly contradicted, reflects that Orlando and Titusville are the only major cities within a two hour driving time of the facility while Melbourne, Lakeland, Ocala, Gainesville and Jacksonville are outside this zone. Even Orlando is not especially convenient, for it lies around an hour and twenty minutes away. Therefore, there are no hospitals in District IV within two hours driving time, while two are in an adjacent District approximately 80 minutes away. However, one of these (Humana) restricts its admissions to mainly spinal cord injuries (92-95 percent of patients) while the other focuses on stroke victims. Further, both have a primary service area different from that proposed by Rehab. This is evidenced by the fact that Volusia and Flagler County residents most recently constituted only 2 percent and 7 percent, respectively, of total patient days at the two facilities. The accessibility standard is accordingly satisfied. According to subparagraph (b)3.e., a facility must be accredited by CARF and meet its standards. In this regard, the proposed facility will be accredited. However, HRS points out that Rehab only intends to make physician and psychology services available rather than actually providing them. The provision of such services should be a condition to issuance of a certificate of need, if indeed Rehab is deficient in this respect. Therefore, with that condition, the criterion has been met. Rehab proposes to offer, where needed, all required variable and optional services enumerated in subparagraphs (b)4. and 5. Finally, Rehab has the ability to develop a formal referral system with acute care hospitals, home health agencies, other providers of vocational rehabilitation facilities and community social services organizations as required by subparagraph (b)6. of the rule. Testimony by local physicians established that Daytona doctors have difficulty in obtaining admissions in non-local hospitals such as Memorial and the two Orlando hospitals. It was further established that a crucial step in the patient recovery process is the need for family members to visit the patient on a frequent basis. Given these considerations and the two hour travel time to Memorial, it is found that the "like and existing health care services in the service district" are not available, appropriate or accessible within the meaning of the statutory criteria. Availability and Adequacy of Other Health Care Facilities in the District (Subsection 381.494(6)(c)4., F.S.) Reasonable and adequate alternatives to hospital placement do not exist. Nursing homes, home health care, Easter Seal and similar programs do not offer a viable alternative to a true rehab center. This is because such services provided in those facilities are in the nature of maintaining the patient rather than restoring the disabled patient to a productive life. Further, the services offered in alternative placements are far less comprehensive in natured and pale in comparison to those offered by a comprehensive medical facility. In view of this, it is found that other health care facilities and services in the district are not available or adequate in terms of providing comprehensive rehabilitative medical services. Probable Economies & Improvements in Services that may be Derived from Joint or Cooperative Shared Facilities (Subsection 381.494(6)(c)5., F.S.) HRS suggests that the most economical way to achieve a new facility in Volusia County is by Memorial simply transferring forty of its 128 licensed beds to Rehab. But Memorial does not wish to transfer more than 20 beds since it plans on eventually using 108 beds in future years. It also does not have the financial capability of constructing its own facility in Volusia County. Under the joint venture agreement, however, twenty unused beds will be put to use, at no cost to Rehab, and both Rehab and Memorial will be equal partners in the new facility. The end result is the establishment of a new rehab facility in the Daytona Beach area that will serve one of the two population centers in the district. Even if Memorial were itself to construct a new facility, the cost of the land and building would be at least equal to what Rehab must bear, and therefore no economies would be achieved. The sharing arrangement proposed by Rehab accordingly achieves economies and improvements in service, and therefore satisfies the criterion. The Need of Applicant for Special Equipment and Services Not Reasonably and Economically Accessible in Adjoining Areas (Subsection 381.494(6)(c)6., F.S.) A rehab center is designated by HRS as a specialty hospitals and as such, provides a unique or special service for its patients. No other comparable facility is reasonably or economically accessible in an adjoining area. Therefore, this criterion has been satisfied by applicant. The Extent to Which Proposed Services-Will be Accessible to All Residents of the Service District (Subsection 381.494(6)(c)8., F.S.) Exhibit 29 clearly reflects that the proposed services will be accessible to the large number of residents in the southern part of HRS District IV. In 1980, they numbered 329,000 persons, and this number is expected to increase by 36.5 percent by the year 1990. Access time of less than two hours extends to much of the populace within the District. More importantly, the facility will be within minutes driving time for patients and families who reside in the large concentration of population in Volusia and Flagler Counties, which is the primary service area of Rehab. In additions the facility will accept Medicaid and Medicare patients; thereby making it accessible to that segment of the population. Therefore, the criterion is satisfied. The Immediate and Long-Term Financial Feasibility of the Project (Subsection 381.494(6)(c)9.,F.S.) At the outset of the hearing the parties stipulated that Rehab has sufficient capital and funds to "construct and open" the proposed facility. L. Effect of New Facility on Competition and Cost-Effectiveness in Delivery of Health Care Services (Subsection 381.494(6)(c)12.,F.S.) Rehab operates seven new rehab hospitals through out the country that provide services comparable to that proposed herein. Most recently, it was issued a certificate of need by HRS to construct and operate a new rehab facility in Melbourne, Florida. Its experience in planning and operating such facilities is not seriously questioned. Based on utilization figures of 65 percent during year one and 85 percent in year two, which are not contradicted and cost experience from its other hospitals, applicant projects a profit between the sixth and seventh months of operation. These projections have not been shown to be unreasonable. Even though it projects only a 1 percent combined indigent and bad debt experience, 53 percent Medicare reimbursement, and .14 percent insurance revenues, these projections are not unrealistic given the fact that unlike an acute care facility patient transfers are prescreened prior to admission. Accordingly, it is found that the project is financially feasible within the meaning of the statute. K. Entities Providing a Substantial Part of Services to Residents Outside Service District (Subsection 381.494(6)(c)11.,F.S.) Although the two specialty hospitals (Florida Hospital and Humana) in District VII provide services to residents outside of their districts these services do not constitute a "substantial" part of their overall service to area residents. For example, since 1983, Volusia and Flagler County patients using Florida Hospital's facility have diminished to approximately 2 percent of its total patient days during the first half of 1985. In the case of Humana, Flagler and Volusia patients represented only 7 percent of that facility's admissions for the ten months ending June 1, 1985. Therefore, because non- District IV facilities provide only a very small part of their services to District IV patients, there will be no impact on these facilities within the purview of this criterion. Approval of the new hospital will not adversely affect Memorial the only rehab facility in District IV. In fact, Memorial supports the application. The effect on Humana, and Florida Hospital should also be negligible since only a very small number of District IV patients now use their facilities. Indeed, the numbers of Volusia area residents using the Orlando facilities has been declining in recent years. Since many patients in Volusia County are now discharged to alternative facilities due to a lack of accessible rehab facilities the delivery of health services and quality of care should improve with the addition of a rehab facility in Daytona. By having a "local" rehab facility, patients will receive comprehensive care that will restore them to their highest functioning potential rather than the patient simply being "maintained" in a nursing home, home health agency or regular hospital facility. This in turn should reduce health care costs incurred when the patient receives maintenance vis a vis restorative care. Accordingly, it is found that the effect on competition will be positive, and that the delivery of health care services and quality of care will be improved.
Recommendation Based on the foregoing findings of fact and conclusions of law it is RECOMMENDED that the application of Rehab Hospital Services Corporation for a certificate of need to construct and operate a 40-bed comprehensive medical rehabilitation facility in Volusia County, Florida be GRANTED subject to the condition in conclusion of law paragraph 14 and finding of fact paragraph 18. DONE and ORDERED this 7th day of January, 1986, in Tallahassee, Florida. DONALD R. ALEXANDER 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 7th day of January, 1986.
