By Reggie Connell/Managing Editor of The Apopka Voice
Joseph Byrd has been busy this summer.
In less than two months, the Apopka City Attorney has filed a lawsuit and two motions against the NEB Group, Apopka’s former Emergency Medical Service billing agent from 2007 until June of 2019 and its owner David Sulik.
Byrd, who started as Apopka City Attorney in January of 2019, is also overseeing an investigation that he describes as “misconduct” by the Apopka Fire Department, and according to Byrd, has been given autonomous control over it by the city’s administration.
He informed the City Council of this most recent motion at its July 17th meeting with an off the agenda notification.
“Generally, I would not provide you with an update on individual motions in the midst of ongoing litigation, but over the last few days, significant issues have developed in the above-referenced (NEB) case and certain matters are part of public records. In an effort to keep the Mayor and Council informed, I am providing this memorandum and attachments,” Byrd told the Council, and also wrote in the memorandum that accompanied the attached court order.
On June 5th, Byrd filed an eight-count breach of contract complaint against the NEB Group and its President, David Sulik. Then, according to Byrd, on or around June 22nd, he learned that Amanda Marsh, (an employee of NEB) was posting on social media, and a “blogger” claimed his “sources” had a document that as he described it would have contained details of ambulance runs with confidential health information. In response to those alleged actions, On June 23rd, Byrd filed a motion for an emergency ex parte protective order prohibiting NEB from disclosing confidential health information.
“It appears that such a document could only be created by NEB or its employees or agents,” Byrd said.
Byrd acknowledged that he did not actually see the posts on any social media site or have knowledge of Marsh sending those documents to anyone for posting or publication.
“My memorandum to the Council largely sums what little I know about the posting on the internet as provided to me,” Byrd wrote in an emailed response to The Apopka Voice. “I have not yet deposed Ms. Marsh yet to ascertain the answer to your question whether she provided a “report” to any person. You would need to contact the manager of the page as to why she/he removed any items, I have no direct knowledge of what posts have been removed, other than being informed that the one post mentioned in Captain Sanchez’s Affidavit was removed. As I stated in Council, I do not spend time reading social media.”
In an email to Byrd, dated June 25th, Sulik denied his or NEB’s involvement as the source of those confidential health documents.
“(I) don’t know where your information comes from but my staff and I have never breached HIPAA laws by text or mail. I don’t now and never have been a member of any social media organization. My information comes from public news outlets and I don’t respond to anyone writing me unless personal. It seems that former city employees and concerned citizens are having a field day with the City.”
In a scathing and emotional presentation to the City Council, Byrd explained his reasons for alarm and for the second court order aimed at NEB in less than a month.
“In my letter of June 24, 2019 to Mr. Sulik with a copy of the Court’s order, I sent discovery requests to NEB. On June 28, 2019, I received three boxes of materials-primarily returned billing statements sent to patients that were not requested. Unknown to me, Mr. Sulik (or his employee) sent/filed a document entitled “Response” that included more than 1,000 pages of documents to the Orange County Clerk of Court. To my shock, I discovered hundreds of those pages contained Confidential Health Information of patients and were available as a public record on the Clerk of Court’s website. I learned of the filing late in the evening of Saturday, July 13, 2019 and on Monday morning, July 15, 2019 I filed a second motion for emergency temporary relief to seal the record to protect the privacy of an unknown number of patients transported by Apopka EMS. The Court sealed the Response until a hearing set for July 24, 2019 where Mr. Sulik must show cause why he should not be held in contempt of the court’s order not to disclose Confidential Health Information. Many of our citizens have experienced an invasion of their privacy by NEB’s incompetent handling of Confidential Health Information – I will continue to push any risk of HIPAA violations to NEB for its intentional bad acts. The ineptitude of NEB in its disclosure of Confidential Health Information underscores the importance of this lawsuit and Captain Wil Sanchez bringing this matter to the City’s attention.”
After expressing his dismay with NEB, Byrd turned his attention to the Apopka Fire Department and his investigation of them – beginning with a claim that there has been contact with NEB from current AFD employees.
“I was assured that except for (AFD) Captain (Wil) Sanchez and administrative support staff, no current AFD personnel has been in contact with NEB or its staff,” he said in his presentation to the Council. ” That assurance has proven false.”
Because of his ongoing investigation of the AFD, Byrd would not comment on who the AFD employees were who allegedly contacted NEB, despite making the allegation.
“The identity of subjects of the investigation are confidential and cannot be released until the investigation is completed as noted above,” he told The Apopka Voice in an email response to a question about the identity of those AFD employees he alleges made contact with representatives of NEB.
In the memorandum, Byrd also referenced alleged donations made by NEB to The Apopka Firefighters Association.
“I have filed motions to compel discovery, particularly, demanding bank records of NEB where Mr. Sulik has alleged that he donated between $10,000-$12,000 in donations with checks where he often left the payee blank purposely to avoid routing the check through the City’s Finance Department,” Byrd stated at the meeting. “In memoranda, the Apopka Fire Department over the years requested to continue to use NEB as a sole or evaluated source corroborating that NEB donated $2,000 per year to “EMS scholarships.” There is no record in the Finance Department of these donations and only one check for $1,000 has been produced that was written by Mr. Sulik to the “Apopka Firefighters Association” – it appears the payee was not filled in by Mr. Sulik initially.”
He also questioned the AFD’s leadership for keeping NEB as the EMS billing provider for so many years.
“The City must monitor issues related to the implications of NEB being recommended by the senior Fire Department staff for more than a decade as a sole or evaluated source when this company and/or its employees either have no idea what Confidential Health Information is or are extremely careless in failing to redact it when filing documents without knowing if they would be made public or not. We knew prior to this most recent breach that NEB staff emailed Confidential Health Information without encryption through a “Hotmail” account but this recent disclosure is without excuse. These issues may be interesting fodder for internet conversations, but for the people whose health information was compromised, this is a serious matter.”
Byrd also tied the investigation of the AFD to the pending lawsuit against NEB. And he tied the complaints against the AFD to “verbal complaints” made in 2018. A complaint he said the administration thought had been resolved, but that now has risen to a level of potential criminality according to Byrd.
“This litigation emerged from an investigation of misconduct at the Apopka Fire Department. It is related to just one of the allegations made orally in 2018 to City Administrators who had come to believe the issues were resolved until April 29, 2019, when allegations in writing were sent to my office – some allegations that by law required an investigation. These allegations are serious, rising to violations not only of city policy but violations of state and federal law. As part of my investigation, I am conferring with federal and state agencies where jurisdictional authority issues arise (e.g., Florida Department of Law Enforcement, State Attorney, Federal Bureau of Investigation, Florida Elections Commission and U.S. Department of Health and Human Services). I am committed to completing my investigation in a thorough and fair manner following the facts as the evidence leads me.”
Byrd would not name the person making verbal allegations. He told The Apopka Voice through an email it was because of the ongoing investigation.
“Pursuant to Section 119.071(2)(k), among others, the identity of a Complainant is confidential until the investigation is completed.”
He also stated he did not know why City Administrators thought the allegations were resolved before resurfacing in a more official capacity in 2019.
“I was not part of those discussions and I have no information as to why the City Administration believed the matter was resolved.”
Byrd also made it clear he will not be influenced or pressured by anyone, and that he will keep the specifics of the investigation confidential, despite describing potential subjects as AFD leadership and describing the issues as “misconduct” and potentially criminal. He also believes the investigation will extend through the summer months of this year at a minimum.
“I will not relent to the impatience of any former or current employees or internet bloggers,” he said. “The City Administration has allowed me full autonomy in this investigation and has not attempted to influence me in any manner except requesting me to maintain the identity of the complainant, the specific allegations and the identity of the subject(s) of the investigation in strict confidence. I have committed to that except where matters become public record as a result of the ongoing litigation with NEB as I am reporting to you today. I cannot know with certainty, but I believe the investigation will not be completed before September 1, 2019. When I am finished, my full report will be given to the City Administration and made a public record that will include transcripts, documentary evidence, and my findings. Moreover, I will continue to work to protect the interests of the citizens of the City of Apopka by litigating the case against NEB seeking any and all available damages and indemnification for any future penalties that may result from the actions of its employee and officers.”
Apopka Fire Chief Chuck Carnesale was contacted by The Apopka Voice but did not speak about any specifics of the allegations because it is an ongoing investigation. He did continue to praise his firefighters, and the community for its encouragement.
“I appreciate the continued support from the public and I stand committed to the residents and firefighters of this city,” he said.