STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SCOTT LARASON, )

)

Petitioner, )

)

vs. ) Case No. 97-2364

)

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case by televised conference, on August 15, 1997, before Arnold H. Pollock, an Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Scott Larason, pro se

633 Third Street North, Apartment 2 St. Petersburg, Florida 33701

For Respondent: Thomas W. Caufman, Esquire

Agency for Health Care Administration

Suite 100

7827 North Dale Mabry Highway Tampa, Florida 33614

STATEMENT OF THE ISSUES

The issue for consideration in this case is whether Petitioner should be granted an exemption from the current disqualification to work with health care agencies resulting from the misconduct cited in the Agency's letter of denial dated January 27, 1997.

PRELIMINARY MATTERS

By letter dated January 27, 1997, Glenda Kelley-Ricks, Administrator of the Certified Nurse Assistant program of Agency for Health Care Administration, advised the Petitioner herein, Scott Larason, that his request for exemption from disqualification from working with health care providers, due to his record of several convictions for drug offenses going back to 1975, had been denied. Petitioner thereafter requested a formal hearing on this issue, and this hearing ensued.

At the hearing, Petitioner testified in his own behalf and presented the testimony of Violet Harriett Carpenter, his neighbor and part-time employer. Petitioner also introduced Petitioner's Exhibits 1 through 4 which were accepted without objection by the Respondent. Respondent presented the testimony of Glenda Kelley-Ricks, its administrator of the certified nursing assistant program and an informal hearing officer.

Respondent also introduced Respondent's Exhibits A through E.

No transcript of these proceedings was furnished, and neither party submitted Proposed Findings of Fact.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, the Respondent, Agency for Health Care Administration, was the state agency responsible for regulating the certification of nursing assistants and the regulation of the nursing assistant profession in this state. A part of that responsibility is the maintenance of control over those individuals who are qualified by reason of

   training and character to work with health care agencies in this state.

2. Ms. Ricks has, as one of her responsibilities, the conduct of background investigations of those individuals who seek certification to work with the indicated category of individuals, but whose background contains information of a disqualifying nature. The purpose of this activity is to ensure that individuals in nursing homes, or in other situations where they are served by certified nursing assistants, receive quality care.

3. At the time of employment by nursing homes and other facilities or organizations who utilize nursing assistants, individuals are screened and if determined to be disqualified for some reason, may ask for an exemption from disqualification.

   When that request is made, Ms. Ricks is asked to conduct an investigation into the individual's background.

4. In the instant case, Petitioner requested an exemption from disqualification. When, after reviewing the file, Ms. Ricks determined it was impossible for her to grant the exemption based on a desk review, she did an informal investigation into his background. In doing so, she determined that Petitioner had been involved in numerous drug-related offenses over a twenty year span from 1975 to 1995.

5. Included in this list of offenses were the following:

   
   

   1. Jul. 1975 sale & possession of marijuana

      
      

   2. Aug. 1982 sale & possession of marijuana

      c. Oct.	1984	possession of marijuana
      d. Jan.	1985	possession of marijuana
      e. Jun.	1988	sale & possession of cocaine
      f. Jan.	1995	possession of marijuana.

      
      

6. Prior to preparing her report on the Petitioner's background, Ms. Ricks gave him an opportunity to be heard. He presented to her a copy of the screening report of the Florida Department of Law Enforcement which contained the above-cited criminal record, as well as testimonials from several individuals for whom he has worked in the recent past.

7. Nonetheless, based on the information available for her to consider, Ms. Ricks, as well as her review group, arrived at the consensus that Petitioner had a long history of drug offenses and had admitted to drug abuse. It was also determined that after his arrest in 1995, Petitioner sought rehabilitation and voluntarily entered a half-way house. Notwithstanding those

   self-efforts, the Agency officials concluded that Petitioner's rehabilitative efforts had not been sufficiently long-standing to demonstrate full rehabilitation. The officials were of the opinion that the nature of Petitioner's offenses and the length of time he was involved in drug abuse, when compared with the relatively short time of his abstinence, showed there had been insufficient time for meaningful rehabilitation.

8. Mr. Larason does not deny his prior record of drug and alcohol abuse. However, he claims he has made a significant change in his life. His record of offenses, he contends,

   includes no major felonies except for his involvement with the possession and sale of cocaine in 1988, and even since that offense, he has had only one minor marijuana involvement.

9. Petitioner contends he has voluntarily kept himself in a half-way house, primarily because he felt it was good for him, and he didn't want to leave until he felt he was ready. He claims to regularly attend meeting of Alcoholics Anonymous and that he has remained drug free and sober. He has not touched alcohol for almost two years. He believes he has made a major turn-around in his life and now has no use for alcohol. Alcohol was, he believes, the cause of his downfall. He now believes he is stable and wants the exemption so he can get a full-time job in a hospital.

10. Mr. Larason, for the past several years until the Agency's action, has worked in several mental health hospitals in Pinellas County. He asserts that all have indicated they want him back and have offered him employment. He wants to work and contends he will fight all the way for the opportunity to do so in his chosen field because he is of the opinion that work in this chosen profession, health care, will aid him in his own recovery.

11. Since the Agency declined to grant him an exemption from disqualification, he has not been able to work in the health care field but had been gainfully employed by two realtors doing construction work. Both indicate he is an asset to the community and, in their judgment, will remain so. Consistent with those

    letters is a reference from the nursing agency for which he formerly worked in which his former supervisor opined Petitioner has learned from his past mistakes. Another health care employer indicates that aside from an occasional work lapse due to alcohol, he was a satisfactory employee.

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.

13. In the instant case, Mr. Larason seeks an exemption from his disqualification from working with residents of nursing homes, home health agencies, homemaker-companion sitter services, or nurse registries resulting from his prior criminal record. Section 400.512, Florida Statutes, requires the above-cited potential employers to screen applicants for employment to ensure that disqualified applicants are not employed.

14. Section 435.07, Florida Statutes, provides that the appropriate licensing agency may grant an exemption from disqualification to any employee otherwise disqualified from employment on several grounds, including felonies committed more than 3 years prior to the date of disqualification, and certain misdemeanors.

15. At subsection (3) of that section, the statute provides:

    In order for a licensing department to grant an exemption to any employee, the employee must demonstrate by clear and convincing evidence that the employee should

    not be disqualified from employment. Employees seeking an exemption have the burden of setting forth sufficient evidence of rehabilitation, including, but not limited to, 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, and the history of the employee since the incident, or any other evidence or circumstance indicating that the employee will not now present a danger if continued employment is allowed.

16. Here, Mr. Larason's record of misconduct consists of a series of felony and misdemeanor drug incidents extending from 1975 up to and including 1995, a period of twenty years. It must be noted, in reviewing that record, that three of the eight listed incidents relate to the sale of either marijuana or cocaine, not merely to the use or possession of that substance. It must also be noted, however, that the last felony took place in 1988, more than 3 years prior to the application for exemption.

17. Mr. Larason, to his credit, readily admits to having had a problem with drugs and with alcohol, but contends that he now has both under control and currently participates in an Alcoholics Anonymous program. Notwithstanding that, one of the four employer references, Jewel Mathewson, of CareTeam, indicates an occasional problem with alcohol. Even Ms. Mathewson describes Petitioner as gentle with patients and good with documentation, and the other references, including former employers and staff at The Lighthouse, a transitional housing provider for those in recovery from alcohol or substance abuse; all speak of him in

    laudatory terms.

    
    

18. In applying the specifics of Petitioner's case to the criteria for exemption contained in the statute, it is seen that the nature of several of Petitioner's offenses included the sale of prohibited substances to others. Whether this was, as Petitioner claims, to help support his own addiction, is irrelevant. The fact remains that he was selling to others. In addition, it has been less than 3 years since Petitioner's last conviction, and yet, as late as June 1996, one of his employers noted an "occasional" lapse into alcohol related problems.

19. No doubt, Petitioner is well intentioned and wants to work. His former and current employers speak highly of him and all would be willing to have him work for them again. However, though there is no history that Petitioner's use of alcohol or drugs has ever caused any harm to anyone other than himself, the evidence presented is neither clear nor convincing that sufficient time without drug involvement has elapsed to give confidence that he has been rehabilitated sufficiently or that his rehabilitation is permanent.

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 denying Petitioner's request for exemption, without prejudice, at this time.

DONE AND ENTERED this 3rd day of September, 1997, in Tallahassee, Leon County, Florida.

COPIES FURNISHED:

Scott Larason

633 Third Street North Apartment Two

ARNOLD H. POLLOCK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6947

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of September, 1997.

St. Petersburg, Florida 33701

Thomas W. Caufman, Esquire Agency for Health Care

Administration

7827 North Dale Mabry Highway Tampa, Florida 33614

Sam Power, Agency Clerk Agency for Health Care

Administration Suite 3431

Fort Knox, Building 3 2727 Mahan Drive

Tallahassee, Florida 32308

Jerome W. Hoffman General Counsel

Agency for Health Care Administration

2727 Mahan Drive

Tallahassee, Florida 32308

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 97-002364

Orders for Case No: 97-002364