STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CYNTHIA A. LEE, )

)

Petitioner, )

)

vs. ) Case No. 99-3928

)

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held in this case in accordance with Section 120.57(1), Florida Statutes, on February 28, 2000, by video teleconference at sites in Miami and Tallahassee, Florida, before Stuart M. Lerner, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Richard Lee Ruben, Esquire

Killian Professional Village 10761 Southwest 104th Street Miami, Florida 33176

For Respondent: Christine T. Messana, Esquire

Agency for Health Care Administration 2727 Mahan Drive

Fort Knox, Building Three, Suite 3431 Tallahassee, Florida 32308-5403

STATEMENT OF THE ISSUE

Whether Petitioner should be granted the exemption from disqualification from employment that she is seeking.

PRELIMINARY STATEMENT

On or about May 25, 1999, Respondent sent the following letter to Petitioner:

RE: Abuse Report-94-093174-Proposed Confirmed

Abuse Report-94-076483-Confirmed Abuse Report-94-073142-Confirmed

Dear Ms. Lee:

This is to inform you of the decision regarding your request for exemption from disqualification from employment in non- patient care positions covered by Section 400.512, Florida Statutes for Certified Nursing Assistants (CNA) and Section 400.4174(1)(a)1, F.S. for administrators of Assisted Living Facilities (ALF).

Based upon the committee's report and the information you have provided, an exemption from disqualification for the above disqualifying offense(s) is granted under Section 400.512, F.S. since there is clear and convincing evidence to support a reasonable belief that you are of good moral character as to justify an exemption and that you do not represent a danger to the health, safety, and welfare of the patients while working as a CNA.

However, based upon the circumstances of the three Abuse Reports and information concerning the licensure history as the administrator of an Assisted Living Facility, the committee has denied your request for exemption under Section 400.4174(1)(a)1, F.S. to be an administrator of an ALF.

Should you wish to challenge the denial of your exemption [request], you may request a formal hearing under [Section] 120.57, F.S.

. . . .

Petitioner requested such a hearing in writing on June 17, 1999. On September 17, 1999, the matter was referred to the

Division of Administrative Hearings for the assignment of an Administrative Law Judge to conduct the hearing Petitioner had requested. On October 11, 1999, the undersigned issued a Notice of Hearing scheduling the hearing for January 3, 2000.

On November 8, 1999, Respondent filed a Motion to Relinquish Jurisdiction, in which it requested that the Division of Administrative Hearings "relinquish jurisdiction of this matter." In its motion, Respondent made the following assertions:

1. The issue is whether the Petitioner is entitled to an exemption pursuant to Section

   400.512 and 435.07, Florida Statues. Specifically, Section 435.07(1)(a), Florida Statutes, does not allow the Agency to grant an exemption for felonies less than three years old.

   
   

2. The Petitioner's criminal record is the only material fact. Specifically, whether three years have passed since her last disqualifying felony offense, which was operating a nursing facility without a license on or about October 22, 1998. See attachment A, which is a copy of the court record.

   
   

3. The Petitioner cannot be granted an exemption due to the fact that her felony conviction is less than three years old.

   
   

4. Section 435.07(4), Florida Statutes, states that disqualification from employment under subsection (1) may not be removed from, nor may an exemption be granted to, any person who is found guilty regardless of adjudication, of any felony.

   
   

5. Petitioner's criminal record is the only material fact. Specifically, adjudication was withheld for the felony conviction of operating a nursing home without a license on or about October 22, 1998. (See Attachment A).

6. The Petitioner cannot be granted an exemption due to the fact that adjudication was withheld for a felony conviction.

"Exhibit A," appended to the Motion to Relinquish Jurisdiction, was a document1 generated by the Clerk of the Circuit and County Courts of Miami-Dade County certifying that the Clerk's "felony files and records" regarding Petitioner revealed the following:

CASE NUMBER- F98029861 CITATION/ARREST DATE- 08/31/98 CHARGES- NURSING FAC/NO LIC DISPOSITION- WH ADJ-PROB SP COND DISPO DATE- 10/22/98

On November 24, 1999, the undersigned issued an Order denying Respondent's Motion to Relinquish Jurisdiction. The Order provided, in part, as follows:

It appears from the materials in the file of the Division of Administrative Hearings in this case that the exemption Petitioner is seeking is an exemption from disqualification from employment arising from three reports of abuse that were issued in 1994. See Section 400.4174(1)(a), Florida Statutes ("Level 2 background screening must be conducted on each of the following persons, who shall be considered employees [of the assisted living facility] for the purposes of conducting screening under chapter 435: 1. [T]he administrator . . . ."); Section 435.04(3)(a), Florida Statutes ("Standards [for Level 2 background screening] must also ensure that the person: For employees or employers licensed or registered pursuant to chapter 400, does not have a confirmed report of abuse, neglect, or exploitation as defined in s. 415.102(5), which has been uncontested or upheld under s. 415.103."); Section

435.07(1)(f), Florida Statutes ("The appropriate licensing agency may grant to any employee otherwise disqualified from employment an exemption from disqualification for: Confirmed reports of abuse, neglect, or exploitation of a vulnerable adult.")

As Respondent points out in its Motion to Relinquish Jurisdiction, pursuant to Section 435.07(1)(a), Florida Statutes, an employee subject to Level 2 background screening, who is disqualified from employment based upon his or her guilt of an offense specified in Section 435.04(2), Florida Statutes, may not be granted an exemption if the disqualifying offense is a felony and three years or less have passed since the commission of the offense. Furthermore, pursuant to Section 435.07(4), Florida Statutes, neither may such an employee be granted an exemption "solely by reason of any pardon, executive clemency, or restoration of civil rights."

These limitations upon the granting of exemptions, however, have no apparent applicability to the instant case inasmuch as it appears, as noted above, that Petitioner's disqualification from employment arises from her "hav[ing] a confirmed report of abuse," not from having been found guilty of a disqualifying felony specified in Section 435.04(2), Florida Statutes.2 If Petitioner meets her "burden of setting forth sufficient evidence of rehabilitation," as more fully described in Section 435.07(3), Florida Statutes, Respondent will have the authority, pursuant to Section 435.07(1)(f), Florida Statutes, to grant her an exemption from such disqualification.

In view of the foregoing, Respondent's Motion to Relinquish Jurisdiction is hereby DENIED. The final hearing in this case, at which Petitioner will have the opportunity to present "evidence of rehabilitation," will be held on January 3, 2000, as previously scheduled.

On December 14, 1999, Respondent, on behalf of both parties, filed a motion requesting that the final hearing in this case be continued. The motion was granted and the final hearing was rescheduled for February 28, 2000.

As noted above, the hearing was held as scheduled on February 28, 2000. At the hearing, three witnesses testified. Petitioner testified on her own behalf. She also presented the testimony of her daughter, Demetri Kinchen. Respondent's lone witness was Caralee Starnes, a health services and facilities consultant with Respondent. In addition to the testimony of these witnesses, 21 exhibits (Petitioners Exhibits 1, 2, 3A-F, and 4 and Respondent's Exhibits 1-12) were offered and received into evidence.

During the course of the hearing, counsel for Respondent advised that the reference to "Abuse Report-94-093174-Proposed Confirmed" in Respondent's May 25, 1999, notice of intent was made in error.

At the conclusion of the evidentiary portion of the hearing, the undersigned established a deadline (45 days from the date of the filing of the transcript of the hearing with the Division of Administrative hearings) for the filing of proposed recommended orders. The hearing Transcript was filed with the Division on March 13, 2000. Respondent filed its Proposed Recommended Order on April 28, 2000. In making the recommendation contained in this Recommended Order, the undersigned has given careful

consideration to Respondent's Proposed Recommended Order. To date, Petitioner has not filed any post-hearing submittal.

FINDINGS OF FACT

Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made:

1. Petitioner is now, and has been since 1992, a Florida- certified nursing assistant (CNA). She presently works part-time as a CNA for Quality Care Nursing Services, Inc., and is attending school (Sheridan Vocational School) to become a licensed practical nurse.

2. In August of 1994, Petitioner was the owner/administrator of Arianism Home, an Adult Congregate Living Facility,3 located at her residence at 741 Northeast 177th Street in Miami, Florida (Petitioner's ACLF). She had a standard license issued by Respondent to operate her ACLF. The license had an effective date of March 20, 1994, and an expiration date of March 19, 1996. It allowed her to house a maximum of six residents at the facility at any one time.

3. At the time (August of 1994), Petitioner shared her residence with her then 18-year-old daughter, Demetri Kinchen, and Ms. Kinchen's two young children. Ms. Kinchen helped Petitioner operate the ACLF. Also assisting Petitioner was a paid employee, Larome Hall, who, in August of 1994, was 21 years of age.

4. Petitioner also owned the residential structure and property located adjacent to her ACLF (at 751 Northeast 177th Street).

5. During the period that her license was in effect, Petitioner had at least six residents at her ACLF at all times. The residents suffered from mental disorders and received social security disability income and optional state supplementation (OSS) benefits. Although Petitioner had a standard license and not a limited mental health license, she received payments from the state (OSS payments) for these residents (notwithstanding that a limited mental health license was required in order to receive such payments for these residents).

6. Because of their mental illness, the residents of Petitioner's ACLF needed to be supervised 24 hours a day, seven days a week.

7. On August 8, 1994, a neighbor of Petitioner's reported to the Department of Health and Rehabilitative Services (HRS) that the residents of Petitioner's ACLF were receiving inadequate supervision. According to the reporter, residents of the ACLF had knocked on the reporter's door "many times" during the day and "as late as 10:00 or 11:00 p.m.," and, the day before, one resident, S. K., came to the reporter's door "bleeding from both legs, her elbow and her face" and told the reporter that she

   (S. K.) had been "hit by a car." At the time of the accident, Petitioner was away from the facility. She had gone shopping,

   leaving the task of supervising the residents to Ms. Kinchen and Mr. Hall, neither of whom, it appears, had received the requisite training to fulfill this responsibility.4

8. The reporter's report was assigned a Florida Protective Services System (FPSS) Report Number (94-073142) and investigated by Jeanette Henad, a protective services investigator for HRS. As part of her investigation, Ms. Henad visited Petitioner's ACLF and conducted several interviews.

9. In the written "investigative decision summary" (IDS) Ms. Henad prepared following the conclusion of her investigation, she described, as follows, the "observations" she made during her visit:

   All residents were interviewed, 7 clients in 751 NE 177th Street and 4 clients in 741 [NE 177th Street] as follows: S. K.; C. W.; T. M.; and L. S. The four above stated clients were found in 741. Daughter of Cynthia Lee, Demetri[] [Kinchen] and Demetri's 2 month old baby w[ere] located in 751. There was no one available in 741. In 751 the home had a lock on the refrigerator and lunch was observed, but the lunch was not what was posted on the menu. Medication book was observed but the last medication entry was for 8/2/94 and it was now 8/9/94. Home met minimal standards of cleanliness and there was food available for human consumption. . . . .

10. Ms. Henad's IDS reflected that Ms. Kinchen had made the following "statements" when interviewed:

    1. My mother is not here right now; 2) I am taking care of the clients; 3) Most of the clients from 741 come over here during the day. Most of the clients come and go as they please; 4) Larome Hall administers the medications but he is not here right now. He

       administers the meds twice a day; 5) All of the clients like it here. We get our clients from Locktown, and other agencies; 6) I know that the medications have been given. I do not know why the med book is not updated;

       7) If clients refuse to take their medications, it is noted and client's physician is notified; 8) The clients take care of themselves.

11. Based upon her investigation, Ms. Henad made the following "findings," which were set forth in her IDS:

    Case is proposed confirmed; 2) Maltreatment of neglect verified. Although no harm came to any individual involved, technically according to the alleg. matrix, neglect due to lack of supervision must be verified.

    
    

12. Petitioner requested that this proposed confirmed report of adult neglect be expunged. Her expunction request was denied on May 2, 1995. She did not, because of monetary considerations, request an administrative hearing on the matter. Accordingly, in the "Final Report of Investigation" produced by HRS (which incorporated Ms. Henad's IDS), FPSS Report Number 94- 073142 was classified as confirmed, with Petitioner named as the perpetrator.

13. On August 17, 1994, HRS received a second report of inadequate supervision at Petitioner's ACLF. This report was from an employee of Respondent's Quality Assurance and Licensing unit, who advised that there were four mentally ill "clients" of Petitioner in the residential structure located on the property adjacent to the ACLF (at 751 Northeast 177th Street) and that these clients were "not being supervised." According to the

    reporter, Ms. Kinchen, along with her two children, were "next door" at 741 Northeast 177th Street. Petitioner, once again, had gone shopping and was not present at either the 741 Northeast 177th Street location or the 751 Northeast 177th Street location.

14. The reporter's report was assigned a Florida Protective Services System (FPSS) Report Number (94-076483). Ms. Henad was delegated the task of investigating this report as well. As part of her investigation, she paid a return visit to the facility and, as she had done as part of her earlier investigation, conducted several interviews.

15. In the IDS she prepared following the conclusion of her investigation of this second report, Ms. Henad described, as follows, the "observations" she made during her return visit to the facility:

    All four clients were observed in the home located next to the ACLF which is licensed. Cynthia Lee escorted [the protective investigator] to the location of 741 NE 177th Street. Home was clean, and clients appeared appropriately dressed. Clients assessed level of risk is intermediate due to the lack of supervision. . . .

16. Ms. Henad's IDS reflected that Petitioner had made the following "statements" when interviewed:

    1. The clients usually come to 751; 2) Larome Hall is sometimes with them; 3) The clients are allowed to come and go as they please; 4) I usually am in 751 but I check on the clients on a regular basis; 5) The clients have been with me for a long time and I take good care of them; 6) 741 is not licensed but I have applied for a license;5 7) I am licensed for 76 but I have 10 clients; 8) I

       get my clients from Locktown and other mental facilities.

       
       

17. Based upon her investigation, Ms. Henad made the following "findings," which were set forth in her IDS:

    Case is proposed confirmed; 2) Maltreatment of neglect verified; 3) Unsupervised caretaker present: Verified; although no harm came to any individual involved, according to the allegation matrix, due to lack of supervision, must be verified; . . .

    
    

18. Petitioner requested that this proposed confirmed report of adult neglect be expunged. Her expunction request was denied on May 2, 1995. She did not, because of monetary considerations, request an administrative hearing on the matter. Accordingly, in the "Final Report of Investigation" produced by HRS (which incorporated Ms. Henad's IDS), FPSS Report Number 94- 076483 was classified as confirmed, with Petitioner named as the perpetrator.

19. Petitioner's license to operate her ACLF expired on March 19, 1996. Her application to renew her license was denied because of the two confirmed reports of adult neglect (FPSS Report Number 94-073142 and FPSS Report Number 94-076483) in which she had been named the perpetrator.7

20. Petitioner has nonetheless continued to operate her ACLF.

21. In August of 1998, Petitioner was arrested and charged, in Dade County Circuit Case Number F98029861, with operating a nursing facility without a license. On October 22, 1998, she

    pled no contest to the charge and was placed on probation for two years and ordered to pay $1,000.00 to the Adult Emergency Trust Fund. Adjudication of guilt was withheld.

22. While Petitioner may be "of good moral character" and "not represent a danger to the health, safety, and welfare of the patients while working as a CNA" (as Respondent has determined, as reflected in its May 25, 1999, letter to Petitioner8), it has not been demonstrated that, subsequent to the incidents described in FPSS Report Number 94-073142 and FPSS Report Number 94-076483, Petitioner has taken any measures (such as undergoing additional training related to the operation and maintenance of an Assisted Living Facility) designed to make her a better educated and more responsible Assisted Living Facility administrator who can be counted on to discharge the supervisory responsibilities of that position in a manner that does not place residents at risk.

    CONCLUSIONS OF LAW

    
    

23. In the instant case, Petitioner is seeking, pursuant to Section 435.07, Florida Statutes, an exemption from her disqualification from employment as an Assisted Living Facility administrator resulting from two confirmed reports of adult neglect (FPSS Report Number 94-073142 and FPSS Report Number 94- 076483) in which she was named as the perpetrator.

24. Section 435.07, Florida Statutes, provides, in pertinent part, as follows:

    Unless otherwise provided by law, the provisions of this section shall apply to exemptions from disqualification.

    (1) The appropriate licensing agency may grant to any employee otherwise disqualified from employment an exemption from disqualification for: . . .

    
    

    (f) Confirmed reports of abuse, neglect, or exploitation of a vulnerable adult. . . .

    
    

    (3) 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 circumstances indicating that the employee will not present a danger if continued employment is allowed. The decision of the licensing department regarding an exemption may be contested through the hearing procedures set forth in chapter 120. . . .

25. During her testimony at hearing, Petitioner took the position that she was entitled to an exemption because she had "not [been] guilty of anything." According to Petitioner, HRS had erred in classifying FPSS Report Number 94-073142 and FPSS Report Number 94-076483 as confirmed and, since she had done nothing wrong, she had not "needed to be rehabilitated."

26. Petitioner misconceives the purpose of a Section 435.07 exemption proceeding: it is to give the disqualified employee an

    opportunity, not to prove that she did not engage in the wrongdoing that resulted in her disqualification from employment, but rather to show that, since having engaged in such conduct, she has been rehabilitated and "will not present a danger" if allowed to be employed in the position from which she would otherwise be disqualified.9 See L. W. C. v. Department of Health and Rehabilitative Services, 1993 WL 944263 (Fla. DOAH 1993)(Recommended Order)("The incident of spanking in this case has been determined 'confirmed abuse' pursuant to section 415.504, F.S. and the propriety of that classification is not at issue [in this exemption proceeding]."); cf. The Florida Bar v.

    Vernell, 374 So. 2d 473, 475 (Fla. 1979)(in bar disciplinary proceeding, attorney charged with having been convicted of misdemeanors "did not have the right to a trial de novo before the referee for the purpose of showing that his conviction was erroneous"); McGraw v. Department of State, 491 So. 2d 1193, 1195 (Fla. 1st DCA 1986)(private investigator whose license was revoked pursuant to statutory provision authorizing disciplinary action where licensee has been "found guilty of the commission of a crime which directly relates to the business for which the license is held" was not entitled, in the disciplinary proceeding below, to relitigate the question of his guilt of the crime of which he had been found guilty in prior criminal proceeding).

27. A review of the record evidence in the instant case reveals that Petitioner has not clearly and convincingly

    established that she has been rehabilitated and "will not present a danger" if allowed to work as an Assisted Living Facility administrator.

28. Accordingly, her request that she be granted an exemption and allowed to be employed in such a position must be denied.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that Respondent issue a final order denying Petitioner's request that she be granted an exemption that would allow her to be employed as an Assisted Living Facility administrator.

DONE AND ENTERED this 12th day of May, 2000, in Tallahassee, Leon County, Florida.

STUART M. LERNER

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 12th day of May, 2000.

ENDNOTES

1/ This document was subsequently offered and received into evidence at the final hearing (as part of Respondent's Exhibit 4).

2/ Operating a nursing facility without a license is not among the offenses specified in Section 435.04(2), Florida Statutes.

3/ Adult Congregate Living Facilities are now referred to as "Assisted Living Facilities." See Chapter 400, Part III, Florida Statutes.

4/ There is no indication that either Ms. Kinchen or Mr. Hall had any mental health training.

5/ In fact, it was "751," not "741," which was not "licensed."

6/ In fact, the maximum number of residents she was allowed to have at her ACLF under her license was six.

7/ There is no indication that Respondent had been made aware of these confirmed reports of neglect prior to Petitioner's efforts to renew her license.

8/ This determination is not at issue in the instant case.

9/ The employee, however, may, in attempting to demonstrate that she should be granted an exemption, present evidence of mitigating "circumstances surrounding the . . . incident." See L. W. C. v. Department of Health and Rehabilitative Services, 1993 WL 944263 (Fla. DOAH 1993)(Recommended Order) ("The circumstances surrounding that incident, however, are still at issue [in this exemption proceeding]." In the instant case, in determining whether Petitioner should be granted an exemption, the undersigned has taken into consideration, pursuant to the provisions of Section 435.07(3), Florida Statutes, the "circumstances surrounding the . . . incident[s]" of neglect which are described in FPSS Report Number 94-073142 and FPSS Report Number 94-076483.

COPIES FURNISHED:

Cynthia A. Lee

741 Northeast 177th Street

North Miami Beach, Florida 33162

Richard Lee Ruben, Esquire Killian Professional Village 10761 Southwest 104th Street Miami, Florida 33176

Christine T. Messana, Esquire

Agency for Health Care Administration 2727 Mahan Drive

Fort Knox, Building Three, Suite 3431 Tallahassee, Florida 32308-5403

R. S. Power, Agency Clerk

Agency for Health Care Administration 2727 Mahan Drive

Fort Knox, Building Three, Suite 3431 Tallahassee, Florida 32308-5403

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.

1 This document was subsequently offered and received into evidence at the final hearing (as part of Respondent's Exhibit 4).

2 Operating a nursing facility without a license is not among the offenses specified in Section 435.04(2), Florida Statutes.

3 Adult Congregate Living Facilities are now referred to as "Assisted Living Facilities." See Chapter 400, Part III, Florida Statutes.

4 There is no indication that either Ms. Kinchen or Mr. Hall had any mental health training.

5 In fact, it was "751," not "741," which was not "licensed."

6 In fact, the maximum number of residents she was allowed to have at her ACLF under her license was six.

7 There is no indication that Respondent had been made aware of these confirmed reports of neglect prior to Petitioner's efforts to renew her license.

8 This determination is not at issue in the instant case.

9 The employee, however, may, in attempting to demonstrate that she should be granted an exemption, present evidence of mitigating "circumstances surrounding the . . . incident." See L. W. C. v. Department of Health and Rehabilitative Services, 1993 WL 944263 (Fla. DOAH 1993)(Recommended Order) ("The circumstances surrounding that incident, however, are still at issue [in this exemption proceeding]. In the instant case, in determining whether Petitioner should be granted an exemption, the undersigned has taken into consideration, pursuant to the provisions of Section 435.07(3), Florida Statutes, the "circumstances surrounding the . . . incident[s]" of neglect which are described in FPSS Report Number 94-073142 and FPSS Report Number 94-076483.

Docket for Case No: 99-003928

Orders for Case No: 99-003928