Findings Of Fact Respondent is licensed by Petitioner to operate its business at 13 S. E. Sixth Street, Fort Lauderdale, Florida. Although Respondent has attempted to qualify to operate a branch office, Petitioner has neither approved nor licensed Respondent to operate a place of business other than at the aforestated address. The 1979-80 edition of the Yellow Pages telephone directory published by Southern Bell Telephone and Telegraph Company for the Hollywood, Florida, area carried a listing for Checkmate lnternational Detective Agency, which listing recites 9481 S. W. 49th Street, Cooper City, Florida, as the Respondent's address, and 434-1926 as the Respondent's telephone number. The listing does not include the address at which Respondent is licensed. The identical advertisement appears in the 1980-81 Yellow Pages directory published by Southern Bell Telephone and Telegraph Company for the Hollywood, Florida, area. The address in Cooper City listed as the business address for Checkmate International Detective Agency is the home of Mr. Mutnich and his employee, Cyndee Heyl. Although Mr. Mutnich insists he did nothing to cause the erroneous listing and even spoke to some unidentified person at some unidentified time regarding the error, he presented no evidence to show any specific efforts on behalf of Respondent to correct the erroneous listing or to prevent the advertised telephone number from being provided to callers by Directory Assistance or to disconnect the telephone number after the listing first appeared. Additionally, no evidence was presented to show efforts made to either delete the advertisement from the following year's directory or to change or disconnect the telephone number. Respondent has further failed to present any testimony or documentation showing any definitive action to prevent this same "erroneous" listing from appearing in any editions of the telephone directory to be printed in the future. In accordance with Petitioner's policy, the fine assessed against the Respondent in the amount of $100 is the amount normally levied by the Division for a first offense.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED THAT: A final order be entered requiring Respondent to pay to the Petitioner the amount of $100 by a date certain. RECOMMENDED this 26th day of June, 1980, in Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: W. J. Gladwin, Jr., Esquire Assistant General Counsel Department of State The Capitol Tallahassee, Florida 32301 Mr. Steven T. Barnes, Chief Bureau of License Issuance Department of State The Capitol Tallahassee, Florida 32301 Mr. Thomas Mutnich Checkmate International 13 South East Sixth Street Fort Lauderdale, Florida The Honorable George Firestone Secretary of State The Capitol Tallahassee, Florida 32301
The Issue The issue in this case is whether the defense of equitable tolling applies to excuse Respondent's untimely request for a disputed-fact administrative hearing on an Administrative Complaint.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of nursing pursuant to section 20.43, Florida Statutes, and chapters 456 and 464, Florida Statutes. At all times material to the Complaint, Respondent was a licensed registered nurse (R.N.) within the state of Florida. On or about February 19, 2016, Respondent retained CLG to represent him in Petitioner's Case 2016-08658, the number assigned by Petitioner to an investigation that ultimately led to issuance of the Complaint. In late May 2018, Attorney Leikam assumed the role as the CLG attorney with primary responsibility for Respondent's case, and informed Petitioner. At that time, the status of the case was characterized as "pre- probable cause." Attorney Leikam represented then to Petitioner that she "will be representing this client in all matters pending before the Department." On November 9, 2018, CLG legal assistant Katherine Kalinowski testified that she closed CLG's file on Respondent's case. However, she did not follow CLG procedures, in that she did not ensure that a withdrawal letter was sent to Respondent before CLG closed its file. On July 1, 2019, Petitioner filed its Complaint against Respondent. Although Attorney Leikam was still counsel of record for Respondent for all matters pending before the Department, including Case 2016-08658, the Department sent the Complaint and Election of Rights form to Respondent directly. When Respondent received the Complaint package, he called CLG and was referred to Attorney Leikam. Attorney Leikam determined that, although CLG had attempted to close its file, since no withdrawal letter was sent to Respondent, "we are still on it." Attorney Leikam sent an email to counsel for Petitioner to complain of the improper attempt to serve Respondent with the Complaint, when she was still counsel of record for Respondent, as she had previously informed Petitioner. Petitioner acknowledged and rectified this mistake by serving the Complaint and Election of Rights form by certified mail to Attorney Leikam, which she received on July 19, 2019. The parties agree that this second attempt to serve the Complaint constitutes the proper service on Respondent. The last page of the Complaint—page 11—set forth the NOTICE OF RIGHTS in bold type, informing Respondent that a written request for an administrative hearing must be received by Petitioner within 21 days after receipt of the Complaint. There is no claim by Respondent in this case that the Notice of Rights was unclear regarding the deadline to request a hearing or the manner in which a hearing must be requested. Respondent knew that there was a deadline to request an administrative hearing, but he did not know when the actual deadline was. He admitted he only "vaguely" reviewed the Complaint, and probably did not make it to the last page. (Tr. 126-27). Instead, he relied on Attorney Leikam to timely submit whatever was necessary to protect his rights.2 2 Upon determining that CLG had not effectively terminated its representation of Respondent, Attorney Leikam immediately notified Respondent that further retainer payments were required. As of July 22, 2019, Attorney Leikam noted as follows in CLG's internal File Notes: "Client never paid but now that we've been served [with the Complaint], I don't want to miss the deadline. I completed only the election of rights form. I am not sending the answer to the [Complaint] until the client pays." To meet the 21-day deadline, a completed Election of Rights or other written hearing request had to be received by Petitioner no later than Friday, August 9, 2019 (21 days after July 19, 2019). The 21-day window to request an administrative hearing was closed on and after Monday, August 12, 2019.3 Neither Respondent nor Attorney Leikam submitted a completed Election of Rights or other written request for an administrative hearing to Petitioner by any means—electronic mail, in-person delivery, U.S. mail, or facsimile—within 21 days after the Complaint and Election of Rights form were received by Attorney Leikam. On November 6, 2019—89 days after the deadline to request an administrative hearing—Petitioner's counsel sent an email to Attorney Leikam to serve Petitioner's Motion for Waiver, which was attached. The Motion for Waiver, filed with the Board of Nursing, sought a determination that Respondent waived his right to a disputed-fact administrative hearing by not timely filing an Election of Rights or other written request for a disputed-fact hearing. That same day, after receiving the Motion for Waiver, Attorney Leikam responded by email to Petitioner's counsel, submitting for the first time a completed Election of Rights form on Respondent's behalf to dispute the facts alleged in the Complaint. 3 The parties stipulated that the 21-day period to request an administrative hearing "expired" August 12, 2019. The stipulation is not entirely clear. The ambiguity was reconciled based on the parties' other stipulation that the Complaint was properly served on Attorney Leikam on July 19, 2019. As a simple application of the computation of time rule, 21 days after Friday, July 19, 2019, was Friday, August 9, 2019. Thus, August 9, 2019, was the last day to file the request for hearing; the 21-day time period was "expired" as of Monday, August 12, 2019. See Fla. Admin. Code R. 28-106.103. Petitioner's PRO interpreted the ambiguous stipulation differently, proposing a finding that the 21-day deadline to file a hearing request was on Monday, August 12, 2019. (Pet. PRO ¶ 5). Respondent's PRO adhered to the ambiguous stipulation, proposing a finding that the 21-day response time "expired on August 12, 2019." (Resp. PRO ¶ 8). This discrepancy is inconsequential, as the findings herein demonstrate, because no hearing request was filed by August 9, 2019, August 12, 2019, or on any date close to either of those dates (if "close" mattered). Attorney Leikam represented to Petitioner's counsel that she had completed the Election of Rights form on or about July 21, 2019, and that her then-legal assistant, Tawanna Hackley, had submitted the completed form by email to Petitioner on July 23, 2019. Petitioner ran email searches and reported to Attorney Leikam that no emails were received from Ms. Hackley or from anyone else at CLG submitting a completed Election of Rights or otherwise requesting an administrative hearing to dispute the Complaint against Respondent. On December 3, 2019, Attorney Leikam sent an email to Petitioner's counsel, transmitting an Answer to the Complaint for filing on Respondent's behalf.4 Attorney Leikam also sent an email attaching Respondent's response to the Motion for Waiver. The response invoked the doctrine of equitable tolling as a defense to the admitted untimely filing of the Election of Rights. The Motion for Waiver and response were presented to the Board of Nursing on December 5, 2019. As a result of Attorney Leikam's request that the Board defer review of the case pending a hearing on equitable tolling, the matter was referred to DOAH to hear the equitable tolling defense. The equitable tolling defense asserted by Respondent is predicated on the circumstances surrounding Attorney Leikam having entrusted the filing of the Election of Rights to her then-assistant, Tawanna Hackley, who failed to complete the assigned task. Tawanna Hackley was not a lawyer or a paralegal; her position at CLG was a "legal assistant," and she worked under the supervision of Attorney Leikam. Ms. Hackley began working at CLG on November 12, 2018. Just over eight months later, on July 24, 2019, she was fired for inadequate performance. 4 As noted above, Attorney Leikam had recorded in the File Notes that as of July 22, 2019, Respondent had not yet paid the requested retainer fee, and that until Respondent paid, she was only going to file the Election of Rights and not the Answer. No evidence was offered to establish when Respondent paid, but based on Attorney Leikam's July 22, 2019, File Notes entry, presumably Respondent did not pay until shortly before Attorney Leikam filed the Answer on December 3, 2019. Attorney Leikam testified candidly that during Ms. Hackley's short tenure at CLG, she had a lot of performance issues, described as follows: It was really—it was really everything from not completing tasks, not documenting tasks, or then doing tasks but having multiple repeated errors in the format or the spelling or the language. It was— it was really a constant issue one way or another. But to me, the biggest issue was that when I would confront these things with her, she just denied all responsibility. (Tr. 25-26). Ms. Hackley was primarily trained by another legal assistant, Katherine Kalinowski, who acknowledged that Ms. Hackley did not seem to grasp what she was taught. When asked how long it took Ms. Kalinowski to train Ms. Hackley, of the eight months she was employed, Ms. Kalinowski responded, "Eight months." (Tr. 108). Nonetheless, Ms. Kalinowski testified that after the first month or so, she stopped checking over Ms. Hackley's work, limiting her involvement to answering Ms. Hackley's questions. Attorney Leikam communicated in telephone calls with CLG's director of human resources, Kristin Teague, regarding the consistent performance problems she was having with Ms. Hackley. However, no specific steps to address these problems were documented in Ms. Hackley's personnel file until her last few weeks at CLG. In particular, her personnel file contains one "coaching" document, prepared by Ms. Teague from information given to her by Attorney Leikman to facilitate a performance-related meeting between Attorney Leikam and Ms. Hackley on July 8, 2019; and one formal corrective action in the form of a counseling warning, issued on July 12, 2019. The July 8, 2019, coaching document listed specific performance issues to be addressed in discussion with Ms. Hackley, all of which fell within the broad categories of performance issues to which Attorney Leikam testified at the hearing: not completing tasks assigned to her, not documenting tasks, and committing multiple repeated errors in the work she did complete. The coaching document ended with a list of specific behavior changes needed from Ms. Hackley, and item two on the list was: "Complete tasks given by attorneys and/or ask a question if she does not understand." The next step in CLG's performance review process if an employee does not meet the expectations communicated in a coaching discussion is formal corrective action in the form of a counseling warning. A corrective action counseling warning was issued to Ms. Hackley on July 12, 2019, only four days after the scheduled performance discussion. The corrective action document was signed by Ms. Teague on July 12, 2019, and by Ms. Hackley and Attorney Leikam on July 15, 2019. The document warned Ms. Hackley that her performance needed to improve because she was making too many mistakes of the type identified by Attorney Leikam in her testimony: not completing assignments given to her by her attorneys, not following the CLG procedures for documenting tasks, not scanning documents into the electronic files, and making a lot of spelling and formatting errors. A confidential version of the corrective action document contained a heading identifying the reason for the action as "Unsatisfactory Work Performance." (Jt. Ex. 1, Pet. Depo. Ex. 2, Bates page 0028). The corrective action defined a time period for improvement of six months from the date it was issued, during which Ms. Hackley was expected to have weekly meetings with Attorney Leikam to discuss her performance. Almost immediately after the corrective action counseling warning was signed by Ms. Hackley, though, Ms. Teague testified that she and Attorney Leikam made the decision that Ms. Hackley needed to be terminated. Together, they informed Ms. Hackley that she was fired on Wednesday, July 24, 2019, but the decision was made either on Monday, July 22, 2019, or Tuesday, July 23, 2019. Ms. Teague explained when and why the decision was made: "Earlier that week I think we had decided that we could no longer risk her continuing to work on our files." (Jt. Ex. 1 at 53). That was because of the errors Ms. Hackley kept making. The precursor to this joint decision appears to have occurred on Friday, July 19, 2019 (the day on which Attorney Leikam received the Complaint by certified mail from Petitioner). Attorney Leikam apparently spent her morning in several rounds of email exchanges with Ms. Hackley. In each of these rounds, Attorney Leikam pointed out errors in Ms. Hackley's work, to which Ms. Hackley responded by blaming someone or something else for the errors. Attorney Leikam then forwarded each round of these email exchanges to Ms. Teague at CLG's Michigan office, and the email strings were placed in Ms. Hackley's personnel file. Attorney Leikam testified that she completed Respondent's Election of Rights on July 22 or 23, 2019, and physically handed it to Ms. Hackley with verbal instructions to scan and email the Election of Rights to Petitioner.5 Attorney Leikam exercised questionable judgment by entrusting to Ms. Hackley the critical step of transmitting the Election of Rights to Petitioner without verifying for herself that the email was sent and received, when at the same time she and Ms. Teague had jointly concluded that Ms. Hackley had to be fired because they "could no longer risk her continuing to work on our files." But according to Attorney Leikam, it is standard CLG practice for legal assistants to transmit by email these time-critical documents to the opposing party for filing. That this is the standard practice is not so clear in the CLG policies and procedures manual, which seems to assign to attorneys the responsibility for all communications of any kind with opposing parties. Further, as to deadlines, the CLG manual is quite clear that "[w]hile legal assistants should remind attorneys daily of their upcoming deadlines/events, both parties are responsible for ensuring that deadlines and events are not missed." 5 Attorney Leikam told Petitioner in the early November 2019 email exchanges that she completed the Election of Rights form on July 21, 2019, and gave it to Ms. Hackley to submit to Petitioner, but that is unlikely, since July 21, 2019, was a Sunday. More likely, Attorney Leikam completed the Election of Rights form on Monday, July 22, 2019, or possibly Tuesday, July 23, 2019, and gave it to Ms. Hackley to scan and email to Petitioner. Attorney Leikam acknowledged that when CLG's legal assistants send emails to opposing parties regarding a case, CLG's standard practice also dictates that the legal assistant must copy the attorney handling the case on the email. Attorney Leikam did not receive a copy of an email sent by Ms. Hackley to Petitioner transmitting the Election of Rights for filing. Despite not getting a copy of an email from Ms. Hackley transmitting the Election of Rights to Petitioner, Attorney Leikam believed Ms. Hackley completed the assigned task by sending the completed Election of Rights form by email to counsel for Petitioner on July 23, 2019. Attorney Leikam believed that the filing was made on July 23, 2019, because an entry dated July 23, 2019, in the File Notes document maintained for Respondent's case stated: "Sent election of right to Dirlie McDonald @ DOH place in G:drive. TH." The File Notes document is a Microsoft Word document. File Notes documents are maintained for each case, with contact information for parties and counsel, and entries reporting on events and communications relevant to the case. The File Notes documents can be accessed by any CLG employee. In theory, and in accordance with CLG procedures, an entry's date should be the date the entry is actually made, but no date or time stamp is automatically generated to ensure accuracy. As such, an entry can be made either before or after the typed date. Likewise, in theory, and in accordance with CLG procedures, the initials at the end of a File Notes entry should identify the person who made the entry, but the initials are not automatically generated to identify who accessed the File Notes to record a particular entry. Attorney Leikam testified that she checked the File Notes for Respondent's case sometime on July 24, 2019, and saw the entry for July 23, 2019, by "TH" stating that the "election of right" was "sent" to "Dirlie McDonald @ DOH." Attorney Leikam later made the following entry in the File Notes: "7/24/19: Client left a message worried about payment and election of rights. I played phone tag and left him a message saying it was covered. Sent f/u [follow-up] email. LAL." According to Attorney Leikam, the sequence of events, as recorded in her File Notes entry, was that, first, Respondent called and left a message expressing concern about whether the election of rights had been filed. Then, after Attorney Leikam received the message, she investigated the status of the Election of Rights assignment by reviewing the File Notes and finding the July 23, 2019, entry by TH. Attorney Leikam drew the inference from the entry and the initials that Ms. Hackley had completed her assigned task of sending the Election of Rights by email to Petitioner on July 23, 2019 (even though the entry does not state how the Election of Rights was sent, and even though Attorney Leikam did not receive a copy of an email from Ms. Hackley to Petitioner). Then, Attorney Leikam "played phone tag" with Respondent, and ultimately left a message saying "it was covered." Attorney Leikam then drafted a "follow-up" email to Respondent and sent it to him. The follow-up email prepared by Attorney Leikam stated: "We submitted the Election of Rights form on 7/23/19. We received it on 7/19/19, so it is timely. This is because we were still counsel of record[, so] the Department should have sent the Administrative Complaint to our office. Thus, the Complaint you received [earlier] is not considered properly served." This email was sent to Respondent at 3:16 p.m., on July 24, 2019. Of necessity, then, all of the preceding steps in the sequence occurred sometime earlier on July 24, 2019, if not before July 24, 2019. Attorney Leikam offered no explanation as to why she did not just ask Ms. Hackley if she completed the assignment so Attorney Leikam could answer Respondent's inquiry. Ms. Hackley was still in the office on July 24, 2019, until nearly the time that the follow-up email was sent at 3:16 p.m. Attorney Leikam's review of the File Notes entry ostensibly made by Ms. Hackley on July 23, 2019, was inadequate to support the inference drawn by Attorney Leikam. Reasonable prudence dictated that she ask Ms. Hackley to confirm that she sent the Election of Rights by email, before assuring the client that "we" submitted the Election of Rights on July 23, 2019, and that it was timely filed. The File Notes entry itself did not identify how the Election of Rights was "sent," and Attorney Leikam was not copied on an email from Ms. Hackley to Petitioner transmitting the Election of Rights, as was the standard CLG practice.6 Meanwhile, Attorney Leikam also spent time on July 24, 2019, dealing with Ms. Hackley's termination. Attorney Leikam testified that she spoke with Ms. Teague during the morning of July 24, 2019, to confirm the plan to schedule a meeting with Ms. Hackley at 3:00 p.m., and that Ms. Teague would attend by telephone. Sometime between 12:00 p.m. and 1:00 p.m., Attorney Leikam used Microsoft Outlook to schedule the 3:00 p.m. meeting, sending "invitations" to Ms. Hackley and Ms. Teague.7 Ms. Hackley's receipt of an "invitation" to a meeting with Attorney Leikam and Ms. Teague was not well received, coming on the heels of the corrective action counseling warning Ms. Hackley had signed nine days earlier, and the multiple rounds of criticizing emails from Attorney Leikam five days earlier. According to Attorney Leikam, rather than accepting the invitation, Ms. Hackley "stormed" into her office and started yelling that they 6 Attorney Leikam attempted to justify the reasonableness of her inference by explaining Ms. Hackley did not always follow procedure by copying her on emails. Even if true, that would not support the reasonableness of inferring Ms. Hackley completed the email filing assignment from an entry that did not say the Election of Rights was sent by email. Moreover, Attorney Leikam's explanation as to why she was unconcerned by the fact that she did not receive a copy of an email was impeached by Respondent's own evidence. According to an audit of Ms. Hackley's emails, not done until November 2019, all outgoing emails from July 10, 2019, through July 24, 2019, from Ms. Hackley to Petitioner or another party outside of CLG were copied to Attorney Leikam and/or Ms. Bazzigaluppi. If this was a performance issue for Ms. Hackley previously, it apparently was not a problem in July 2019. 7 Ms. Teague had a somewhat different, but much less clear, recollection of the timing. She repeatedly said she was not sure of the various times to which she hesitantly testified. Ms. Leikam, in contrast, did not express the same hesitancy in her testimony. To the extent their testimony differed as to when certain steps occurred, Ms. Leikam's more certain recollection is generally credited. It would stand to reason that she would have a clearer recollection of the timing of events that occurred in her physical presence than Ms. Teague's admittedly uncertain recollection of the timing of events in which she participated remotely by telephone from Michigan. were going to fire her and she was not going to sit around and wait for a meeting. Ms. Hackley then left Attorney Leikam's office, and Attorney Leikam said she heard "a lot of slamming for a little while." (Tr. 57). Then Ms. Hackley returned and said she was going to wait for Ms. Teague. Attorney Leikam said after this exchange, she called Ms. Teague immediately, who made herself available for a meeting "within about an hour's time." (Tr. 57). Given Attorney Leikam's description of the events that started at between noon and 1:00 p.m., the meeting must have begun no earlier than 1:30 p.m. and possibly as late as 2:30 p.m. The termination meeting was relatively uneventful, as Ms. Hackley was already expecting to hear that she was fired, and she was. No reasons for dismissal were discussed. Ms. Teague asked Ms. Hackley to give her key to Attorney Leikam, and she did. Ms. Teague than asked Ms. Hackley to delete her CLG email account from her phone while Attorney Leikam observed her doing so, and she did. Inexplicably, Ms. Hackley was not instructed to leave, nor was she instructed to pack up her personal things while a witness observed her doing so. Attorney Leikam testified that she does not know whether Ms. Hackley left the building right away, but believes that she heard Ms. Hackley at her desk for almost an hour after she was fired. Ms. Hackley's desk was just outside of Attorney Leikam's office, but not within her line of sight. Ms. Kalinowski testified that her work station was approximately six feet away from Ms. Hackley's station. Ms. Kalinowski was out to lunch when the termination meeting started in Attorney Leikam's office, but returned before it ended. Ms. Kalinowski testified that when Ms. Hackley left the meeting, she was a little teary-eyed and gave Ms. Kalinowski a hug, telling her she had been fired. Ms. Kalinowski told her she was sorry. Ms. Kalinowski testified that Ms. Hackley went to her work station and was "doing something on the computer," though Ms. Kalinowski could not say if it was work or something else, as she could not see what was on the screen. Ms. Kalinowski said she gave Ms. Hackley "a few minutes," then asked what she was doing, and Ms. Hackley said she was "cleaning things up." (Tr. 110). Ms. Kalinowski told Ms. Hackley she did not think she needed to worry about that, so Ms. Hackley got her things and went outside to wait for her ride. Ms. Kalinowski testified that it was between 2:30 p.m. and 3:00 p.m. when Ms. Hackley left the building.8 Attorney Leikam confirmed that Ms. Hackley was terminated because of performance issues. Ms. Teague agreed, stating that the decision was made to fire Ms. Hackley because of all the errors she continued to make. As such, when Ms. Hackley applied for unemployment compensation, CLG did not contest it. To do so, CLG would have had to show that Ms. Hackley had engaged in gross misconduct, and there was no evidence of that. Despite Ms. Hackley's performance inadequacies recounted by Attorney Leikam, there was no immediate undertaking after Ms. Hackley's termination to audit the files on which she had been working to determine whether there were additional instances in which she failed to complete assigned tasks. That was negligent. Attorney Leikam's acceptance at face value of an internal file notation as sufficient proof that Ms. Hackley completed an assignment just given to her on July 22, 2019, was negligent. Even if Attorney Leikam was unwilling or unable to ask Ms. Hackley before she left the building on July 24, 2019, whether she completed the assignment, there was an easy and simple solution. Attorney Leikam could 8 Among other evidence relied on by Respondent, testimony regarding conversations with Ms. Hackley is hearsay. At the outset of the hearing, the parties were informed that to the extent their evidence constituted or contained hearsay, the hearsay evidence would not be relied on as the sole basis for a finding of fact, whether objected to or not, unless the hearsay would be admissible in a civil action in Florida, i.e., that it would fall within a hearsay exception under the Florida Evidence Code. See § 120.57(1)(c), Fla. Stat. (2019); and Fla. Admin. Code R. 28-106.213(3). The parties were instructed to identify on the record any hearsay exceptions they intended to rely on so that argument could be presented by both parties. Neither party raised a hearsay exception on which they were relying. Accordingly, the testimony regarding conversations with Ms. Hackley is recounted not for the truth of what was said, but rather, to portray an approximate timeline of the events on July 24, 2019. have, and should have, called or emailed counsel for Petitioner to ask whether Respondent's Election of Rights had been submitted. As of July 24, 2019, there were still 16 days remaining—more than two-thirds of the 21-day window—to timely file an Election of Rights. It would have been easy to verify whether the just-fired employee who constantly made errors during her short tenure at CLG had, or had not, made another error on this assignment. Reasonable prudence and due diligence required that Attorney Leikam do so, particularly since she and Ms. Teague, the human resources director, had concluded together earlier that week that the firm could not risk having Ms. Hackley continue to work on their files. Attorney Leikam did nothing to check on the status of Respondent's case until she received the Motion for Waiver on November 6, 2019. Then, with the clarity of belated hindsight, the forces were marshalled as they should have been in late July 2019. Ms. Hackley's emails were searched and audited in November 2019, something that should have been done in late July 2019. And, as would have been confirmed in late July 2019 had the audit been requested then, the resulting audit report was that no email was sent by Ms. Hackley to counsel for Petitioner transmitting Respondent's Election of Rights. Respondent, through counsel, contends that Ms. Hackley's actions and inaction constituted intentional sabotage and, as such, extraordinary circumstances beyond Respondent's control and beyond Attorney Leikam's control that could not have been discovered in the exercise of due diligence. The credible non-hearsay evidence, with reasonable inferences drawn therefrom, does not support a finding that Ms. Hackley engaged in intentional sabotage. Instead, that evidence only establishes that Ms. Hackley did not complete an assignment verbally conveyed to her shortly before she was fired. At most, the evidence supports a finding that she was negligent, as she apparently had been throughout her tenure at CLG. Respondent, through counsel, argues that the entry dated July 23, 2019, in the CLG internal File Notes document by "TH" must have been intentionally made by Ms. Hackley after she knew she was fired, out of anger for being fired, to sabotage Attorney Leikam. Of course, this same entry was considered by Attorney Leikam on July 24, 2019, to be solid evidence that Ms. Hackley, in fact, completed her assignment by emailing the Election of Rights to Petitioner on July 23, 2019. Just as the latter inference was not reasonable, as previously found, the opposite inference of intentional sabotage is not fair, reasonable, or supported by the credible evidence. To begin with, the evidence is inconclusive regarding the timeline. Although Attorney Leikam was fairly specific in recalling the timeline related to Ms. Hackley's termination, she testified only in generalities as to the sequence of events on July 24, 2019, with regard to her investigation to respond to Respondent's telephone message. If anything, the sequence of events suggests that Attorney Leikam discovered the File Notes entry dated July 23, 2019, before Ms. Hackley became aware between 12:00 p.m. and 1:00 p.m. on July 24, 2019, that she was likely going to be terminated. Even if the timing predicate had been established, Attorney Leikam candidly admitted that the only basis for inferring that Ms. Hackley had intentionally falsified the File Notes entry to sabotage her was the fact, discovered in early November, that the File Notes entry was false. Respondent argues that the only reasonable inference from the false entry is that Ms. Hackley intentionally falsified the records. But another equally reasonable, if not more reasonable, inference from the July 23, 2019, entry is that Ms. Hackley may have been trying to respond to the recent criticism of her failure to document events in File Notes, by making an entry before she actually completed the task. The completed Election of Rights had also been scanned and saved to the G:drive, something else that Ms. Hackley had been criticized for not doing. Ms. Hackley may well have intended to follow through by preparing an email to counsel for Petitioner to transmit the already-scanned, already-saved Election of Rights form, but may have gotten sidetracked after making the File Notes entry on July 23, 2019. Had Attorney Leikam asked Ms. Hackley on July 24, 2019, when she saw the July 23, 2019, File Notes entry, the matter may have been resolved. Instead, Ms. Hackley was fired and left the building mid-afternoon on July 24, 2019.9 Respondent, through counsel, also points to the short time that Ms. Hackley was seen at her computer after she was fired, when she was seen doing something for a few minutes before she packed up her things and left. The suggestion is that the only, or most reasonable, inference is that Ms. Hackley must have been making the July 23, 2019, false entry in File Notes out of anger for being fired. Alternatively, the argument is that Ms. Hackley made the false entry between learning of the meeting at which she was pretty sure she was going to be fired and the actual meeting. These arguments are speculative, unsupported by competent substantial evidence, and not proven to be more likely than not. Once again, the suggested inference is not the only possible or reasonable explanation. Another reasonable inference is that Ms. Hackley may have been spending the little time she had at her computer, after learning she would likely be fired, to delete personal emails and/or documents that she did not want to leave behind on her work station. In the absence of supporting evidence, therefore, Respondent's suggested inference is rejected. Before the Board of Nursing, in the response opposing Petitioner's Motion for Waiver filed December 3, 2019, Attorney Leikam represented that the inference that Ms. Hackley had intentionally falsified the July 23, 2019, entry would be supported by evidence showing that in more than 30 other instances at CLG, Ms. Hackley had falsely documented performing work when she had not. (Resp. Ex. 4, ¶ 16). No such evidence was offered at the 9 Neither Respondent's inference nor the alternative inference suggested here is supported by evidence sufficient for a finding of fact. The point here is that Respondent's suggested inference is not the only possible or reasonable explanation for the false entry. In the absence of supporting evidence in the record, the inference offered by Respondent is rejected. hearing. Instead, according to Ms. Teague, Attorney Leikam's suspicion that Ms. Hackley intentionally sabotaged CLG's internal file for Respondent's case was the only time in which there was a suspicion of that kind during her tenure at CLG. She confirmed that Attorney Leikam first expressed her suspicion that the File Notes entry was intentionally falsified when she discovered well after Ms. Hackley was fired that no Election of Rights was filed. That is consistent with Attorney Leikam's testimony: the fact that the entry was false was the basis for inferring that it was intentionally falsified. She admitted she has no proof that Ms. Hackley intentionally falsified or sabotaged CLG's internal records for Respondent's case. As a final argument to bolster the missing evidence of nefarious intent, Respondent, through counsel, asserted that an inference of intentional falsification is supported by other evidence from Ms. Hackley's prior job at the Department of Health. However, to make the desired argument, Respondent mischaracterized the evidence. A fair review of the evidence undermines Respondent's argument. Respondent's argument is based on an excerpt of Ms. Hackley's personnel file from the Department of Health in evidence (subject to the hearsay caveat given at the outset of the hearing). The excerpt includes personnel forms indicating that Ms. Hackley was dismissed on July 29, 2016, from a "regulatory specialist II" career service position. Respondent's PRO asserts that the personnel file excerpt shows that "Ms. Hackley had been previously fired from her employment with the Department for what appears to be falsification of internal documents; specifically timesheets[.]" (Resp. PRO ¶ 49). Respondent's PRO refers to documentation within the personnel file claimed to support "the contention that Ms. Hackley was falsifying her timesheets." (Resp. PRO ¶ 51). Contrary to these characterizations, the personnel file excerpt contains no evidence establishing the reason why Ms. Hackley was dismissed from employment as of July 29, 2016. The documents referred to in Respondent's PRO were what appears to be a single written reprimand memorandum, dated July 14, 2008, plus a few pages containing handwritten notes that appear to relate to timesheets in August 2008. The memorandum indicates that Ms. Hackley was issued a written reprimand on July 14, 2008, for two reasons: attendance, including excessive tardiness; and "errors on your timesheet." (Resp. Ex. 15, Bates page 424). The written reprimand does not state that Ms. Hackley intentionally falsified timesheets; it states that as of July 14, 2008, she was making errors on her timesheets. The last few pages of the personnel file excerpt cannot be characterized at all without a witness to explain what the handwritten notes represent. All that can be gleaned is that information was written down by someone apparently in reference to Ms. Hackley's timesheets during one week in August 2008. Whatever this information represents, it apparently did not result in any formal action such as a written reprimand, which presumably would have been included in the exhibit. Without a witness to explain these documents, they are plainly hearsay with no predicate to support a hearsay exception, and as such, cannot be the sole basis for a finding of fact.10 Importantly, Respondent's PRO fails to point out the eight-year gap in time between the timesheet errors for which Ms. Hackley was apparently reprimanded in July 2008, and her dismissal for unstated reasons in July 2016. The only fair inference is that any attendance and timesheet error problems Ms. Hackley had in 2008 were considered minor and were corrected. Presumably falsification of timesheets, had that occurred in 2008, would have been met with serious disciplinary action such that Ms. Hackley would not have rebounded and continued with no adverse personnel records for an eight-year employment span between 2008 and 2016. 10 The handwritten notes appear to only indicate that Ms. Hackley may have made more errors on her timesheets in August 2008. In an attempt to suggest something worse than mere errors, Respondent's PRO contains a glaring misquote, asserting that one note stated "8-11-08 Now the week 8-1/8-7 has codes but 0 hours! This was faked again today 8-11." (Resp. PRO at 14, ¶ 51) (emphasis added). The quoted note actually ends as follows: "This was faxed again today 8-11." (Resp. Ex. 15, Bates page 00427) (emphasis added). In sum, Respondent mischaracterized a minor disciplinary action in 2008, and compounded that misfire by ignoring the huge time gap between the action and Ms. Hackley's dismissal, to advance an unsupportable claim that the timesheet issue in 2008 was somehow the reason for dismissal in 2016. That effort failed. Ms. Hackley's Department of Health personnel file adds nothing to Respondent's attempt to infer nefarious intent or bolster the claim that Ms. Hackley intentionally falsified CLG's internal records. Regardless of the nature, timing, or intent of Ms. Hackley's File Notes entry, the evidence clearly establishes that there was ample time and opportunity, with the exercise of even a modicum of due diligence, for Attorney Leikem to have discovered before the expiration of the filing period that the Election of Rights had not been filed. The circumstances did not prevent her from timely filing the Election of Rights.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Nursing issue a final order dismissing Respondent's Election of Rights request for a disputed-fact administrative hearing as untimely and not excused under the equitable tolling doctrine. DONE AND ENTERED this 20th day of July, 2020, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of July, 2020. COPIES FURNISHED: Dirlie Anna McDonald, Esquire Department of Health Bin C-65 4052 Bald Cypress Way Tallahassee, Florida 32399 (eServed) Sara A. Bazzigaluppi, Esquire Chapman Law Group 6841 Energy Court Sarasota, Florida 34240 (eServed) Philip Aaron Crawford, Esquire Department of Health Prosecution Services Unit Bin C-65 4052 Bald Cypress Way Tallahassee, Florida 32399 (eServed) Joe Baker, Jr., Executive Director Board of Nursing Department of Health Bin C-02 4052 Bald Cypress Way Tallahassee, Florida 32399-3252 (eServed) Kathryn Whitson, MSN, RN Board of Nursing Department of Health Bin D-02 4052 Bald Cypress Way Tallahassee, Florida 32399-3252 Louise St. Laurent, General Counsel Department of Health Bin C65 4052 Bald Cypress Way Tallahassee, Florida 32399 (eServed)
The Issue Whether Petitioner ADCO Billing Solutions, L.P.’s (ADCO), Petition for Resolution of Reimbursement Dispute is entitled to be considered on the merits, or whether it should be dismissed.
Findings Of Fact The Department is the state agency with jurisdiction to resolve reimbursement disputes between health care providers and carriers, pursuant to section 440.13(7), Florida Statutes. Chapter 440 is known as the Florida’s Workers’ Compensation Law. See § 440.01, Fla. Stat. Michael S. Schurdell, M.D., a physician (Dr. Schurdell), is a “health care provider” as defined in section 440.13(1)(g). ADCO is an agent for Dr. Schurdell, responsible for preparing, processing, and submitting workers’ compensation bills for repackaged prescription medication to insurers and carriers on Dr. Schurdell’s behalf. Zenith Insurance Company (Zenith), a nonparty to this proceeding, is considered a “carrier” as defined in section 440.13(1)(c). The Florida’s Workers’ Compensation Law, and its implementing rules, govern the process through which health care providers and carriers review and make determinations on health care provider bills. A carrier’s bill review, under section 440.13(6), and implementing rules, culminates in a reimbursement decision to either pay the bill, or to disallow, adjust, or deny payment. An Explanation of Bill Review (EOBR) is “the document used to provide notice of payment or notice of adjustment, disallowance or denial by a claim administrator or any entity acting on behalf of an insurer to a health care provider[.]” Fla. Admin. Code R. 69L-7.710(y). Pursuant to Florida Administrative Law Rule 69L-7.740(14), a carrier (or its claim administrator) must use an EOBR that details the reasons for a reimbursement decision for each line item. The EOBR must reflect EOBR codes (up to three for each line item billed), which are reasons for the reimbursement decision. The EOBR is what triggers a health care provider’s option to submit a petition for resolution of reimbursement dispute with the Department, pursuant to section 440.13(7). Section 440.13(7) provides, in pertinent part: (7) UTILIZATION AND REIMBURSEMENT DISPUTES.— (a) Any health care provider who elects to contest the disallowance or adjustment of payment by a carrier under subsection (6) must, within 45 days after receipt of notice of disallowance or adjustment of payment, petition the department to resolve the dispute. The petitioner must serve a copy of the petition on the carrier and on all affected parties by certified mail. The petition must be accompanied by all documents and records that support the allegations contained in the petition. Failure of a petition to submit such documentation to the department results in dismissal of the petition. Melissa Malarae, a nonparty to this proceeding, sought medical treatment from Dr. Schurdell, as a result of a workplace injury that occurred on August 31, 1998. Ms. Malarae subsequently filed a Petition for Workers’ Compensation Benefits on August 29, 2002, with the Office of the Judges of Compensation Claims (OJCC), in a matter styled Melissa Malarae v. TLC Child Care Center of Sarasota and Zenith Insurance Company, OJCC Case Number 02- 034031RLD. Dr. Schurdell provided medical care related to the 1998 workplace injury and dispensed prescription medications to Ms. Malarae on August 8, 2019. Notably, two of the prescription medications that Dr. Schurdell prescribed and dispensed were “Lidocaine Ointment 5%” and “Diclofenac Sodium Solution 1.5%.” On August 8, 2019, ADCO, on behalf of Dr. Schurdell, submitted a “Health Insurance Claim Form” for prescription medications he had prescribed and dispensed, to Zenith, Ms. Malarae’s employer’s workers’ compensation carrier, for payment. As Zenith had not paid for those prescription medications, on February 18, 2020, Ms. Malarae (through her attorney, Ronald S. Fanaro, Esquire) filed another Petition for Workers’ Compensation Benefits, in OJCC Case No. 02-034031RLD, seeking payment for prescription medications that ADCO, on behalf of Dr. Schurdell, submitted to Zenith. On March 11, 2020, Zenith filed a Response to Petition for Benefits in OJCC Case No. 02-034031RLD. In the portion of the Response to Petition for Benefits entitled “Response to Each Benefit Requested,” Zenith stated: Petition(s) 02/18/2020(9) are covered by this response. Payment in the amount of $29,942.34 to ADCO Billing Solutions. Attorney Fees and Costs. Response: The EC denies entitlement to attorney fees as the requested benefits are being paid within 30 days of the Petition. The EC agrees to reimburse taxable costs associated with obtaining benefits in the Petition. However, also on March 11, 2020, Zenith issued an EOBR that adjusted the August 8, 2019, payment for medications listed on the Health Insurance Claim Form. The March 11, 2020, EOBR indicated a significant downward adjustment of payment for the “Lidocaine Ointment 5%” and “Diclofenac Sodium Solution 1.5%” that ADCO requested. Mr. Chenchick, the collections manager for ADCO that sought reimbursement for the multiple medications Dr. Schurdell dispensed to Ms. Malarae (including the Lidocaine Ointment and Diclofenac Sodium Solution), testified that he worked with Mr. Fanaro in the filing of the February 18, 2020, Petition for Workers’ Compensation Benefits, to seek reimbursement in the amount of $29,942.34. Mr. Chenchick testified that, following receipt of Ms. Malarae’s Petition for Workers’ Compensation Benefits: [T]hey [Zenith] rescinded their denial. That was the response from Zenith. It was from the adjuster, Katy Lamb. It was another document that said we rescind, and, you know, there was a guarantee of payment of that [$]29,942.34. Mr. Chenchick testified that he considered Zenith’s March 11, 2020, response to the February 18, 2020, Petition for Workers’ Compensation Benefits a “guarantee of payment[,]” and that he believed that Zenith would make full payment for the multiple medications at issue. Mr. Chenchick testified that on March 17, 2020—after he received Zenith’s March 11, 2020, response to the Petition for Workers’ Compensation Benefits—he received the EOBR, dated March 11, 2020, and payment from Zenith. Mr. Chenchick testified: So the other dates of service were reimbursed properly. This was the only date of service that was – that we were taking issue with, this date of service of 8/8/2019, and the billed amount was, yeah, $13,536.43, and for that date of service, we were only reimbursed $349.67. After receiving the March 11, 2020, EOBR, which Mr. Chenchick considered a “short pay,” Mr. Chenchick contacted Zenith’s bill review department on March 27, 2020, to discuss this discrepancy. Mr. Chenchick testified that a “short pay” error was common, and that ADCO regularly addressed such an error with carriers directly, as opposed to utilizing the dispute resolution process with the Department, pursuant to section 440.13(7). Mr. Chenchick further testified concerning the alleged “short pay” of the two prescription medications: What we had in this one, which typically we don’t, was the – a guarantee of payment is what I considered it where they rescinded and said they would be paying the bills. So when I had that in my hand saying we are rescinding the denial, we will pay this amount, and then an amount comes in that’s lower than that. . . . I didn’t feel at that time that I needed to submit anything to the State because it was still under review. It had not hit a hard denial. ADCO did not contest the March 11, 2020, EOBR, pursuant to the procedure set forth in section 440.13(7), and, therefore, did not petition the Department within the 45-day requirement contained in this provision. Nor did ADCO and Zenith submit a Joint Stipulation of the Parties to the Department, pursuant to rule 69L-31.012, which would have allowed the parties to “mutually stipulat[e] in writing that the reimbursement dispute be held in abeyance for a specified time period, not to exceed sixty (60) calendar days, for the parties to seek a resolution of the reimbursement dispute without the need for a determination by the Department.” Instead, Mr. Chenchick testified that he continued to negotiate with Zenith concerning the payment discrepancy through May 2020. On May 20, 2020, Mr. Chenchick, on behalf of ADCO, sent Zenith an “Appeal for Reconsideration,” that explained ADCO’s position that Zenith had short-paid the two prescription medications. On May 27, 2020, Zenith issued a second, separate EOBR, that ADCO received on June 3, 2020 (Second EOBR). The Second EOBR differed from the March 11, 2020, EOBR, in that it only concerned the two prescription medications at issue here, and that Zenith completely disallowed payment ($13,536.43) for them. ADCO filed a Petition for Resolution of Reimbursement Dispute with the Department on June 19, 2020, which the Department received on June 30, 2020, 27 days after ADCO received the Second EOBR. At the time Zenith issued the Second EOBR, the August 8, 2019, billing remained at issue in OJCC Case No. 02-034031RLD. A June 10, 2020, mediation agreement, signed by Ms. Malarae, Mr. Fanaro, and a representative from Zenith, states, in part: Parties agree as follows: Regarding PFB of 2/18/20, the outstanding bills submitted by ADCO Billing Solutions have been paid and accepted by E/C, with the exception of prescriptions for Date of Service 8/8/19 for Diclofenac and Lidocaine ointment. E/C made a payment for the 8/8/19 prescriptions, but the provider is disputing the amount paid. This dispute between the E/C and the billing provider is not within the purview of the JCC, who is without jurisdiction to address such billing disputes, and must be handled administratively. The Department assigned Ms. Paulk, a registered nurse consultant with the Department’s Bureau of Monitoring and Audit within its Medical Services Section, to review ADCO’s Petition for Resolution of Reimbursement Dispute. Her job duties include reviewing petitions for resolution reimbursement disputes for deficiencies, under section 440.13(7) and rules 69L-31 and 69L-7. Ms. Paulk reviewed ADCO’s Petition for Resolution of Reimbursement Dispute, dated June 19, 2020, and compared it to the date ADCO received an EOBR that would trigger section 440.13(7)’s 45-day deadline for this process. Ms. Paulk testified that she reviewed the two EOBRs, and noted that both indicated a “disallowance or adjustment of payment” for the two prescription medications. Under this circumstance, Ms. Paulk testified that the Department used the earlier, March 11, 2020, EOBR for purposes of calculating the deadline for a petition for resolution of reimbursement dispute. As ADCO’s Petition for Resolution of Reimbursement Dispute was filed more than 45 days after the March 11, 2020, EOBR, the Department dismissed it as untimely served on the Department, pursuant to section 440.13(7). Ms. Paulk admitted, on cross-examination, that when she made the decision to dismiss ADCO’s Petition for Resolution of Reimbursement Dispute, she was unaware of OJCC Case No. 02-034031RLD, had no contact with either ADCO or Zenith, and that the March 11, 2020, EOBR and the Second EOBR were not identical, as the March 11, 2020, EOBR actually reflected an adjustment of the amounts for reimbursement for the two prescription medications (i.e., Zenith would pay an amount for the two prescriptions totaling $349.67), while the Second EOBR reflected that Zenith completely disallowed payment in full for the two prescriptions. The undersigned finds that the March 11, 2020, EOBR differs from the Second EOBR. The March 11, 2020, EOBR reflected a downward adjustment for the two prescription medications. The Second EOBR reflects that Zenith completely disallowed payment for these two prescriptions. Additionally, the March 11, 2020, EOBR considered additional dates of service, which were not at issue in the Second EOBR. With respect to the payment for the two prescription medications at issue between ADCO and Zenith, the March 11, 2020, EOBR also conflicts with Zenith’s Response to Petition for Benefits in OJCC Case No. 02- 034031RLD, in which Zenith admitted that it would pay for all of the medications (including the two prescription medications at issue) listed in ADCO’s August 8, 2019, Health Insurance Claim Form. The OJCC was the wrong forum for Ms. Malarae to seek payment for these two medications. See § 440.13(7), Fla. Stat. However, Zenith’s response, and Mr. Chenchick’s testimony that ADCO considered it a “guarantee of payment,” establishes that ADCO had been lulled or misled into inaction, as ADCO relied on Zenith’s response, and reasonably believed that the adjustment reflected in the March 11, 2020, EOBR was erroneous. Mr. Chenchick’s additional testimony concerning ADCO’s attempt to reconcile what he believed to be a common error known as “short pay,” reflected in the March 11, 2020, EOBR (which he received after Zenith filed its Response to Petition for Benefits), is further evidence that ADCO reasonably believed that Zenith intended to pay, in full, the amount of the two prescription medications at issue.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned hereby RECOMMENDS that the Department of Financial Services, Division of Workers’ Compensation, enter an Order that reinstates the Petition for Resolution of Reimbursement Dispute filed by ADCO Billing Solutions. DONE AND ENTERED this 2nd day of February, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Keith C. Humphrey, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-4229 Ralph Paul Douglas, Esquire McConnaughhay, Coonrod, Pope, Weaver & Stern, P.A. Suite 200 1709 Hermitage Boulevard Tallahassee, Florida 32308 S ROBERT J. TELFER III 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 2nd day of February, 2021. Marc J. Semago, Esquire FL Legal Group Suite 400 2700 West Dr. MLK Jr Boulevard Tampa, Florida 33607 Diane Wint, Agency Clerk Division of Legal Services Department of Financial Services Room 612.17, Larson Building 200 East Gaines Street Tallahassee, Florida 32399-0390
