STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Petitioner, vs. AHCA No. 2011008415 ALL CARE CHIROPRACTIC & WELLNESS CENTER, INC., Respondent. / ADMINISTRATIVE COMPLAINT COMES NOW, the Petitioner, State of Florida, Agency for Health Care Administration (hereinafter “the Agency”), by and through the undersigned counsel, and files this Administrative Complaint against the Respondent, All Care Chiropractic & Wellness Center, Inc. (hereinafter “the Respondent”), pursuant to Sections 120.569 and 120.57, Florida Statutes (2011), and alleges: NATURE OF THE ACTION This is an action to revoke the Respondent’s license to operate a health care clinic. PARTIES 1. The Agency is the authority responsible for the licensure and regulation of health care clinics pursuant to Chapters 400, Part X, and 408, Part II, Florida Statutes, and Chapter 59A-33 Florida Administrative Code. 2. The Respondent was issued a license by the Agency to operate a health care clinic located at 505 Deltona Blvd., Suite 103, Deltona, Florida 32725 (License Number 8270), and was at all material times required to comply with the applicable laws. Filed February 29, 2012 4:12 PM Division of Administrative Hearings 3. COUNT I Violation of Background Screening Requirements Pursuant to Chapter 435, Florida Statutes (2011), a Level 2 background screening must be conducted on each of the following persons or categories of persons, as enumerated in Section 408.809(1), Florida Statutes (2011), who are considered employees of the licensee for purposes of conducting screening: (a) The licensee, if an individual; (b) The administrator or a similarly titled person who is responsible for the day- to-day operation of the provider; (c) The financial officer or similarly titled individual who is responsible for the financial operation of the licensee or provider; : (d) Any person who is a controlling interest if the Agency has reason to believe that such person has been convicted of any offense prohibited by Section 435.04. For each controlling interest who has been convicted of any such offense, the licensee shall submit to the Agency a description and explanation of the conviction at the time of license application, (e) ‘Any person, as required by authorizing statutes, seeking employment with a licensee or provider who is expected to, or whose responsibilities may require him or her to, provide personal care or services directly to clients or have access to client funds, personal property, or living areas; and any person, as required by authorizing statutes, contracting with a licensee or provider whose responsibilities require him or her to provide personal care or personal services directly to clients. Evidence of contractor screening may be retained by the contractor’s employer or the licensee. § 408.809(1), Fla. Stat. (2010). 4. Section 408.809(2), Florida Statutes (2010), provides in pertinent part: Every 5 years following his or her licensure, employment, or entry into a contract in a capacity that under Section 408.809(1) would require level 2 background screening under Chapter 435, each such person must submit to level 2 background rescreening as a condition of retaining such license or continuing in such employment or contractual status. 5. In addition to the offenses listed in Section 435.04, all persons ‘required to undergo background screening pursuant to this part or authorizing statutes must not have an arrest awaiting final disposition for, must not have been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to, and must not have been adjudicated delinquent and the record not have been sealed or expunged for any of the offenses listed in Section 408.809(4), including any felony. § 408.809(4)(a)-(b), Fla. Stat. (2010). 6. Section 435.06(1), Florida Statutes (2010), provides: If an employer or 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 that indicates noncompliance with the standards in this chapter. It is the responsibility of the affected employee to contest his or her disqualification or to request exemption from disqualification. The only basis for contesting the disqualification is proof of mistaken identity. 7. In addition, Section 435.06(2), Florida Statutes (2010), provides: (a) An employer may not hire, select, or otherwise allow an employee to have contact with any vulnerable person that would place the employee i in a role that requires background screening until the screening process is completed and ' demonstrates the absence of any grounds for the ‘denial or termination of employment. If the screening process shows any grounds for the denial or * termination oKemployment, the employer may not hire, select, or otherwise allow the employee to. have contact with any vulnerable person that would place the employee in a role that requires background screening unless the employee is granted an exemption for the disqualification by the Agency as provided under s. 435.07. (b) If an employer becomes aware that an employee has been arrested for a disqualifying offense, the employer must remove the employee from contact with any vulnerable person that places the employee in a role that requires background screening until the arrest is resolved in a way that the employer determines that the employee is still eligible for employment under this chapter. (c) The employer must terminate the employment of any of its personnel found to be in noncompliance with the minimum standards of this chapter or place the employee in a position for which background screening is not required unless the employee is granted an exemption from disqualification pursuant to Section 435.07. 8. Under Florida law, any employee who refuses to cooperate in such screening or refuses to timely submit the information necessary to complete the screening, including fingerprints if required, must be disqualified for employment in such position or, if employed, mustibe dismissed. § 435.06(3), Fla. Stat. (2010). Level 2 Background Screening Requirements 9. Florida has one of the largest vulnerable populations in the country, with over 25% of the state’s population over the age of 65, as well as children and disabled adults. These vulnerable populations require special care as they are at an increased risk of abuse. In 1995, the Florida Legislature created standard procedures for the screening of prospective employees where the Legislature had determined it necessary to conduct criminal history background checks to protect vulnerable persons, Chapter 435, Florida Statutes, outlines the background screening standards for Level 1 employment screening and Level 2 employment screening. 10. In 2010, the Florida Legislature substantially rewrote the requirements and procedures for criminal background screening of the persons and business that deal primarily with vulnerable populations. The 2010 changes provided that “vulnerable persons” include minors and-adults whose ability to perform the normal activities of daily living or to provide for his or her own care or protection is impaired due to a mental, emotional, long-term physical, or developmental disability or dysfunction, or brain damage, or the infirmities of aging. Among other things, the new requirements: (a) mandated that no person be allowed to. begin work until the background screening was completed, (b) increased the level of background screening from Level 1 to Level 2, (c) expanded the number of disqualifying offenses for employees, and (d) prohibited exemptions from disqualification for employees until three years after the completion of all sentencing sanctions.! 11. In addition to the grounds provided in authorizing statutes, the Agency may deny or revoke a license, or deny a change of ownership application, for any violation of Chapters 408 or 435, Florida Statutes; authorizing statutes, or applicable rules, by a controlling interest, § 408.815(1)(c), Fla. Stat. (2010). . Facts in Support of the Background Screening Violation 12. Upon rescreening, one of the Respondent's controlling interests, Sean Leotta, did not satisfy the Level 2 background screening standards. 13. Mr. Leotta is listed as the Vice President and Treasurer of the Respondent . according to the Florida Division of Corporations. 14. Mr. Leotta is listed as a 50% owner of the Respondent according to the license application submitted to the Agency by the Respondent. 15. Mr. Leotta was convicted and adjudicated guilty of trafficking cocaine, 400 grams or more, a felony, in Miami-Dade County, Florida, in 1998. Case number 131998CF0099430001XX. In addition to any other sanctions imposed by the court, Mr. Leotta was fined approximately $262,698.00, of which he has paid to date approximately $428.00, and still owes approximately $262,540.00. The crime is, by statute, one that disqualifies Mr. Leotta, and any entity in which he is a controlling interest, from licensure by the Agency. 16. The Respondent, therefore, was required to remove Mr. Leotta from his two officer positions. 17. The Respondent failed to remove Mr. Leotta from these positions and therefore violated the above-referenced background screening requirements. ' The statements contained in this paragraph and the preceding paragraph is based upon statements and findings set forth within the Florida House of Representatives Staff Analysis for HB 7069. House Bill 7069 was enacted into law by the Florida Legislature effective July 1, 2010. Ch. 2010-114, Laws of Fla. Sanction 18. The Agency may revoke Respondent's license for a violation of the provisions of Chapter 408, Part II, Florida Statutes, authorizing statutes, or applicable rules, § 408.815, Fla. Stat. (2010). WHEREFORE, the Petitioner, State of Florida, Agency for Health Care Administration, intends to revoke the license of the Respondent to operate as a health care clinic provider. CLAIM FOR RELIEF WHEREFORE, the Petitioner, State of Florida, Agency for Health Care Administration, respectfully seeks a final order that: 1. Makes findings of fact and conclusions of law in favor of the Agency. 2. Imposes the relief set forth above. Respectfully submitted on this 3 day of December, 2011. Warren J. Bf nior Attorney Florida B . 754536 Office of eneral Counsel Agency for Health Care ‘Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308 Telephone: (850) 412-3630 Facsimile: (850) 921-0158 NOTICE The Respondent has the right to request a hearing to be conducted in accordance with Sections 120.569 and 120.57, Florida Statutes, and to be represented by its own counsel or qualified representative. Specific options for the administrative action are set out in the attached Election of Rights form. The Respondent is further notified that if the Election of Rights form is not received by the Agency Clerk’ Office within twenty-one (21) days of the receipt of this Administrative Complaint, a Final Order will be entered. The Election of Rights form shall be delivered to: Agency Clerk, Agency for Health Care Administration, 2727 Mahan Drive, Building 3, Mail Stop 3, Tallahassee, FL 32308-5407; Telephone (850) 412-3630. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the Administrative Complaint and Election of Rights Form were served to the below named individuals or entities by the method designated on this 3° day of December, 2011. ¢ Bird, Senior Attorney FiéridyBar No. 754536 Office of the General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308 Telephone: (850) 412-3630 Facsimile: (850) 921-0158 Copies furnished to: Harry Vassilakis, Registered Agent All Care Chiropractic & Wellness, Inc. 505 Deltona Boulevard, Suite 103 Deltona, Florida 32725 (Certified Mail - 7009 0960 0000 3708 4120) Harry Vassilakis, Chief Executive Officer All Care Chiropractic & Wellness, Inc. 807 Beville Road South Daytona, Florida 32119 (Certified Mail - 7009 0960 0000 3708 4137) Roger Bell, Unit Manager Health Care Clinic Unit Agency for Health Care Administration (Interoffice Mail) FN mei Opat-we20-eeszor. ydreoey Winey onsewi0g p00? 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