that the Petitioner retained an employee who did not meet background screening requirements.
In AHCA Case No. 2002039041, the Respondent was notified by the Agency for Health Care Administration in an Administrative Complaint dated June 13, 2002, of its intent to impose an administrative fine in the amount of $5,000.00, against Woodland Field, because the Petitioner was still employing an employee who did not meet background screening requirements. The Agency also seeks to revoke the facility license and to impose an immediate moratorium on admission. The Petitioner filed a Petition for Formal Administrative Hearing and this hearing ensued.
At hearing, the Agency presented the testimony of two witnesses and two volumes of composite exhibits which were received into evidence. The Petitioner presented the testimony of one witness and two exhibits were received into evidence.
The Respondent and the Petitioner both filed post-hearing submittals. The Petitioner has filed an ex parte filing of a letter and photos, notice of which was given to Respondent.
This evidentiary material was not considered.
The Agency is the state agency responsible for the licensing and regulation of ALF's in the State of Florida. The Petitioner is licensed to operate Woodland Field, Inc., as an ALF in Jacksonville, Florida.
Robert Cunningham was called as a witness for the Agency. He is a Health Facilities Evaluator II. His duties include performing surveys of different health care facility types. Mr. Cunningham was familiar with Woodland Field because he had surveyed Woodland Field, Inc.
Mr. Cunningham identified the Agency's composite Exhibit 1, item 1, as a copy of a letter to Ms. Wallace reporting himself and Audrey Deas, R.N.'s findings of the state appraisal survey of February 14, 2002. Mr. Cunningham found that one staff member on duty at the time of the survey, who was
hired in 2001, did not have a Level I background screening on file. See Tag A511, Exhibit 1, item 1.
Mr. Cunningham also testified that a staff worker must have a Level I background screening.
Mr. Cunningham discussed the employee with Ms. Harriett Wallace and made her aware of the fault, and that it was a Class III deficiency.
Mr. Cunningham gave the facility a 30-day period up to and including March 16, 2002, to correct the deficiency.
Mr. Cunningham identified the Agency's composite Exhibit 1, item 2, as a copy of a follow-up survey conducted on March 15, 2002, by himself and Audrey Deas.
On the follow-up of March 15, 2002, Mr. Cunningham testified that he found Tag A511 uncorrected. The employee who did not meet background screening requirements in February was still there in March.
Additionally, it was determined that this person had committed disqualifying offenses. See Tag A1115.
Mr. Cunningham testified that he surveyed the facility a day earlier than the full 30 days given for the correction because a plan of correction submitted by the facility showed everything to be corrected on or before March 15, 2002, or a day early. However, the Petitioner had until the following day to effect the correction.
Mr. Cunningham cited Tag A1115 because of the police report that he received from Protective Services of Department of Children and Family Services suggested further problems with this particular employee.
Robert Dickson was called as a witness for the Agency.
Mr. Dickson is employed by the Agency in the Jacksonville Field Office as a Health Facility Evaluator Supervisor. Mr. Dickson supervised Mr. Cunningham and others in the Jacksonville Field Office. Mr. Dickson is familiar with Woodland Field, Inc.
Mr. Dickson identified the Agency's Composite Exhibit 1, item 3, as a copy of a recommendation for sanction drafted by himself and approved by his supervisor's designee on March 23, 2002, based on the on-site visits February 14 and March 15, 2002.
Petitioner was originally cited for a Class III deficiency, Tag A511. Upon re-inspection, Petitioner was again cited for an uncorrected Class III deficiency, Tag A511, which warranted a fine.
The Class II deficiency, Tag A1115, pertaining to the disqualified employee being retained in the facility and a Class III deficiency, Tag A511, pertaining to the employer who was not in compliance with Level I background screening requirements were the bases for levying the second fine on Petitioner.
However, it is noted that both cited violations relate to the same factual predicate.
Both citations relate to the employment of Pamela Harvey. Petitioner could have come into compliance merely by firing her. At the time of the second inspection, the Petitioner had initiated a background check on Pamela Harvey and been advised by FDLE that Pamela Harvey was cleared for employment.
The source of Pamela Harvey's disqualification may have been communicated orally to Wallace by Cunningham, but there is uncertainty about whether the Department had provided Wallace a copy of the disqualifying record. There was no uncertainty about Pamela Harvey's clearance by FDLE.
A conflict existed at this point between agencies regarding clearance of Pamela Harvey, and it was incumbent upon the Agency to provide Wallace with a copy of the disqualifying record and resolve the conflict, not just cite Petitioner for an alleged violation.
Ms. Wallace had initiated the paperwork for the background screen of the subject employee after the first survey, and around the 1st of March, received notice from Tallahassee that the employee was cleared.
Ms. Wallace notified Mr. Cunningham that she had received a clear report from Tallahassee. See Petitioner's
Exhibit 2. Therefore, she had complied with the screening requirement for which she was originally cited. She had appropriate documentation.
Mr. Cunningham verbally advised Ms. Wallace about the employee's arrest, but did not provide her a written copy of the file which AHCA had received from the Protective Services of the Department of Children and Family Services.
The reviewing personnel in AHCA had the information on the employee; however, the FDLE, from whom an employer requests a background check did not have the record of conviction.
Over the next several months, the Petitioner continued to submit information to FDLE and receive back an all clear on Harvey.
The Agency's witnesses could not state with certainty that they ever gave the Petitioner a copy of the information from the Department of Children and Family Services.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and parties in this case.
Section 435.03(1), Florida Statutes, provides:
All employees required by law to be screened shall be required to undergo background screening as a condition of employment and continued employment. For purposes of this subsection, level 1 screenings shall include, but not be limited to employment history checks and statewide criminal
correspondence checks through the Florida Department of Law Enforcement, and may include local criminal records checks through local law enforcement agencies.
Section 435.03(3), Florida Statutes, provides: Standards must also ensure that the person:
for employees and 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 435.05(1), Florida Statutes, provides:
Every person employed in a position for which employment screening is required must, within 5 working days after starting to work, submit to the employer a complete set of information necessary to conduct a screening under this section.
For level 1 screening, the employer must submit the information necessary for screening to the Florida Department of Law Enforcement within 5 working days after receiving it. When required, the employer must at the same time submit sufficient information to the Department of Children and Family Services to complete a check of its records relating to the abuse, neglect, and exploitation of vulnerable adults. The Florida Department of Law Enforcement and the Department of Children and Family Services will conduct searches of their records and will respond to the employer agency. The employer will inform the employee whether the screening has revealed any disqualifying information.
Section 435.06(1), Florida Statutes, provides:
When an employer or licensing agency has reasonable cause to believe that grounds
exist for the denial or termination of employment of any employee as a result of background screening, it shall notify the employee in writing, stating the specific record which indicates noncompliance with the standards of this section.
Pursuant to the statutes cited above, the Petitioner was obligated to forward to FDLE and to the Department of Children and Family Services (DCFS) a screening request. The evidence shows that the Petitioner initially failed to do this contrary to Section 400.4174, Florida Statutes. The Petitioner was given 30 days to correct this deficiency. There is no dispute that the Petitioner initiated the screening process for its employee during the 30 days. In fact, the report from FDLE came back in the negative, and indicated that there was no bar to employing the employee.
Evidence was not introduced on the submittal of screening materials to the DCFS. The record shows that DCFS did have a record from the Duval County Court which indicated that the employee had a felony fraud violations. The record is not clear if a copy of this record was provided to the Petitioner, and, if so, when and by whom. The only evidence that the Petitioner may have had a copy of this record is the letter from the Petitioner to AHCA, dated March 11, 2002, (Agency's Exhibit 6b) the first paragraph of which says,
Enclosed, please find the application for a Level I Criminal History Check, and a local Police Report for Pamela R. Harvey.
Agency's Exhibit 6 was received into evidence.
Agency's Exhibit 6 is a copy of a record of the Office of the Sheriff dated February 20, 2002, which is unsigned and un-sealed regarding Pamela Harvey and reporting to arrests. Attached to this page is a print-out of a computer record with regard to Pamela R. Harvey. This print-out, which may or may not be part of the first page of the record, shows Harvey was arrested and charged with Defrauding a Financial Institution contrary to Section 655.0322(6), Florida Statutes. Charges of Grand Theft contrary to Section 812.014(2)(c) were filed. Harvey plead guilty before trial. However, no information was received that this is the report that was attached to the letter, Exhibit 6b.
The testimony was conflicting regarding whether the police report was provided to the Petitioner prior to late April or early May, or who gave it to the Petitioner. Mr. Cunningham testified regarding his discussions about the report with
Ms. Wallace, but he could not say he provided her a copy of the document. The records of the Agency did not contain any record of this report having been provided to the Petitioner.
Mr. Cunningham's testimony and the testimony of Mr. Dickson indicated that AHCA received the report from DCFS which
purportedly obtained the report from the Duval County Sheriff's Department.
Ms. Wallace notified Mr. Cunningham that she had complied with the screening requirement, but when Mr. Cunningham inspected the facility, he did not provide Ms. Wallace with a copy of the sheriff's report. However, Mr. Cunningham cited Wallace for failing to correct the fault and for having an unregistered person in charge of the facility.
After being cited, the Petitioner again queried the FDLE system about criminal background of Harvey, and got back another report that Harvey had no disqualifying convictions. There is no evidence that at any time after Mr. Cunningham's visit, AHCA made the sheriff's report available to Ms. Wallace prior to citing her for the violations in these cases. The record reflects that very shortly after the sheriff's report was provided to Ms. Wallace, she discharged Ms. Harvey.
In Sum, Ms. Wallace complied with the provisions of the statute, and applied for screening. She received word that the employee was cleared. She was advised verbally by AHCA that the employee was disqualified. She requested an exemption. She rechecked the system, and received word that the employee was cleared.
The statute regarding exclusion from employment is very clear. The employer shall notify the employee in writing,
stating the specific record which indicates noncompliance with the standards in this section. See Section 435.06(1), Florida Statutes.
The Petitioner complied with a reasonable construction and application of this statute given the facts presented. Prior to receipt of the record, Ms. Wallace could not have provided the specific record which indicated noncompliance with the standards to the employee. It is implicit in the statute that the state screening authorities will provide the record. In this case, upon receipt of the record, the employee was discharged.
AHCA seeks $11,000 in fines in this case and revocation of the Petitioner's license because the Petitioner failed to screen the employee after warning and continued to employ an employee who the FDLE kept advising was cleared. First, Wallace did initiate screening and received a good report. AHCA, who seeks the fine, did not provide the Petitioner with the sheriff's record until after it brought charges.
It appears that the Agency seeking the fine has not done those things required of it by the statute, i.e., provide the Petitioner with a copy of the specific record which indicates noncompliance with the standards. Upon the receipt of the record, the Petitioner discharged the employee. At best,
