(2006). Respondent disputed the allegations in the Administrative Complaint and requested a hearing pursuant to section 120.57(1), Florida Statutes. On July 8, 2014, the matter was referred to the Division of Administrative Hearings (DOAH) for the assignment of an administrative law judge to conduct the final administrative hearing.
At the hearing, Vanessia Bulger, who is employed by Petitioner as a health facility evaluator II, testified on behalf of Petitioner. Petitioner's Exhibits 1 through 10 were received in evidence. Petitioner's Exhibit 7 was received in evidence for the limited purpose of demonstrating that Respondent submitted a
correction plan to address any alleged deficiencies and not for the purpose of proving the alleged deficiencies.
Respondent offered testimony from Emmanuel L. Nau, M.D., who is the medical/clinic director for the facility, and Lavaud Fevry, who is the owner and chief administrator for the facility. Respondent’s Exhibit 1 (stamped S28) was received in evidence.
Respondent proffered Exhibit 2 after it was not admitted into evidence.
January 22, 2015. Respondent moved for an extension of time for the submission of its proposed recommended order, which was granted. Each party timely filed a Proposed Recommended Order which received due consideration in the preparation of this Recommended Order.
On August 23, 2013, Respondent submitted to Petitioner a Health Care Licensing Application (Application) using AHCA Recommended Form 3110-0013, August 2013. The Application was submitted for the purpose of renewing Respondent’s license to operate as a health care clinic.
Personnel File and Background Screening Results
Section nine of the Application seeks a listing of Respondent’s “licensed health care practitioners and all personnel who provide personal care services to clients or with
access to client funds.” Employees that fall within this classification are required to submit to, and successfully pass, a Level 2 background screening. Respondent identified on the Application four individuals that fell within the designated category.
Florida Administrative Code Rule 59A-33.012(1) directs that a “survey” will be conducted for “[a]pplications for renewal licenses.” This rule also provides that the survey process “is an onsite inspection and review of the health care clinic facility or administrative office, by authorized Agency employees to determine the health care clinic’s compliance with the minimum standards established by the Act, its statutory references and rules regulating the operation and licensure of health care clinics.” Vanessia Bulger was assigned to conduct the survey related to Respondent’s Application.
On November 25, 2013, Ms. Bulger visited Respondent’s facility for the purpose of conducting the required survey.
Ms. Bulger met with the owner of the facility, Mr. Lavaud Fevry. While meeting with Ms. Bulger, Mr. Fevry disclosed that after submitting his Application to the Agency, the health care clinic hired two additional employees who provided personal care services to the clinic’s clients.
Ms. Bulger wrote the names of the two new employees on her copy of section nine of the Application and further
identified these employees with the letters “C” and “D.” Employee “C” is Eugene Grazette and employee “D” is Dexter K. John. For employee “C,” Ms. Bulger wrote “Eugene Grazette – 8-
31-15 – NO BG” and for employee “D” she wrote “Dexter K. John 10- 17-09 BG.” Ms. Bulger testified that “NO BG” stands for “no background screening results.”
The Administrative Complaint does not allege that employee “C” had not passed a Level 2 background screening at the time of the survey conducted by Ms. Bulger. Count I of the Administrative Complaint does allege, however, that Respondent failed to maintain a copy of the Level 2 background screening results in the personnel file for employee “C.”
It is undisputed that employee “C,” during all times relevant hereto, possessed a valid health provider license that authorized him to deliver personal care services to Respondent’s clients. Additionally, the evidence also establishes that on September 18, 2013, approximately two months before the survey, Respondent, via electronic submission, requested a Level 2 background screening for employee “C.”
Ms. Bulger, as part of the survey process, completed a “Heath [sic] Care Clinic Surveyor Worksheet & Facility Questionnaire.” Item nine of the questionnaire asks, “[i]s there a log of all natural persons required to be screened and who have been screened under Level 2 criteria?” In response to this
question, Ms. Bulger wrote “NO - New Chiropractor – massage therapist not listed.” The questionnaire does not ask on any of its 10 pages whether a copy of the Level 2 background screening results is maintained in the personnel files of the employees of the clinic. At the time of the survey, employee “C’s” personnel file did not contain a copy of the results from his Level 2 background screening.
Attestation Regarding Background Screening
Section 10 of the Application is labeled “Affidavit.” Mr. Fevry provided the following attestation in support of the Application:
I, Lavaud Fevry, hereby swear or affirm that the statements in this application are true and correct. As administrator or authorized representative of the above named provider/facility, I hereby attest that all employees required by law to undergo Level 2 background screening have met the minimum standards of sections 435.04, and 408.809(5), Florida Statutes (F.S.) or are awaiting screening results.
Count I of the Administrative Complaint also alleges that when Mr. Fevry met with Ms. Bulger during the survey he informed her that:
he had no affidavit or documentation that the employees, including the Medical Director, had . . . attest[ed] to meeting the requirements for qualifying for employment pursuant to Florida law and agreeing to inform the employer immediately if arrested for any of the disqualifying offenses while
employed by the employer per chapter 435, Florida Statutes.
The evidence establishes that Respondent’s employees had not completed the required attestations until after the survey.
In December 2013 Respondent submitted a plan of correction to address problems related to employee attestations.
Exactly 21 months prior to the survey that provides the basis for the instant dispute, Petitioner, on February 23, 2012, conducted a survey of Respondent’s clinic. As a part of this earlier survey, Respondent was also cited for failing to ensure that required staff completed attestations, subject to penalty of perjury, wherein they acknowledged meeting the requirements for employment and agreeing to immediately inform Respondent if arrested for a disqualifying offense.
Verifying Florida Licenses
Emmanuel Nau, M.D. has served as Respondent’s medical/clinic director since August 2009. Dr. Nau, at all times relevant hereto, held Florida Department of Health medical license number ME48249. Dr. Nau, as medical director for Respondent’s clinic, acknowledges that he has legal responsibility for the clinic as specified in section 400.9935, Florida Statutes.
On the day of the license renewal survey, Ms. Bulger inquired of Dr. Nau as to whether, in his capacity as medical
director, he was verifying that all practitioners at the clinic who were providing health care services or supplies to clinic patients had active, unencumbered Florida licenses. Dr. Nau, in response to the inquiry, admitted to Ms. Bulger that he had not verified the license status of the clinic’s practitioners. There was, however, no evidence indicating that Respondent’s practitioners did not actually possess active, unencumbered Florida licenses during the period in question. Additionally, no evidence was offered that Respondent had previously been cited for committing violations of this nature.
In December 2013 Respondent submitted a plan of correction that was designed to shore up its system of verifying that its employees have active, unencumbered Florida licenses.
Failure to Document “When” and “What”
Ms. Bulger testified that during the survey, Respondent failed to produce, upon request, confirmation that Dr. Nau documented, for the two years prior to the survey, compliance of when and what action was taken relative to several of the functions, duties and clinic responsibilities enumerated in section 400.9935(1)(a)-(g), Florida Statutes.
When Ms. Bulger, on the day of the survey, questioned Dr. Nau about the omissions, he admitted that he failed to document and to maintain for the previous two years, records demonstrating “compliance, when and what action” he took in
regards to the performance of his functions, duties, and responsibilities as medical director for the clinic.
Dr. Nau also admitted during the final hearing that he had not been listing in his reports all information related to the performance of his duties as medical director of Respondent’s clinic. No evidence was offered that Respondent had previously been cited for committing violations of this nature.
In December 2013 Respondent submitted a plan of correction designed to ensure that clinic reports adequately address those matters required by statute and rule.
CONCLUSIONS OF LAW
DOAH has jurisdiction over the subject matter of and the parties to this proceeding pursuant to sections 120.569 and 120.57(1), Florida Statutes (2014).
This is a proceeding in which Petitioner seeks to suspend or revoke Respondent’s license to operate as a health care clinic. Because disciplinary proceedings are considered to be penal in nature, Petitioner is required to prove the allegations in the Administrative Complaint by clear and convincing evidence. Dep’t of Banking & Fin. v. Osborne Stern & Co., 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington, 510 So. 2d
292 (Fla. 1987).
Clear and convincing evidence “requires more proof than a ‘preponderance of the evidence’ but less than ‘beyond and to
the exclusion of a reasonable doubt.’” In re Graziano, 696 So.
2d 744, 753 (Fla. 1997). As stated by the Florida Supreme Court, the standard:
entails both a qualitative and quantitative standard. The evidence must be credible; the memories of the witnesses must be clear and without confusion; and the sum total of the evidence must be of sufficient weight to convince the trier of fact without hesitancy.
In re Davey, 645 So. 2d 398, 404 (Fla. 1994)(citing, with approval, Slomowitz v. Walker, 429 So. 2d 797, 800 (Fla. 4th DCA
1983)); see also In re Henson, 913 So. 2d 579, 590 (Fla. 2005). “Although this standard of proof may be met where the evidence is in conflict, it seems to preclude evidence that is ambiguous.” Westinghouse Elec. Corp. v. Shuler Bros., 590 So. 2d 986, 989
(Fla. 1991).
Petitioner is limited to proving the charges and allegations pled in the Administrative Complaint. Cf. Trevisani
v. Dep't of Health, 908 So. 2d 1108 (Fla. 1st DCA 2005); Aldrete v. Dep't of Health, Bd. of Med., 879 So. 2d 1244 (Fla. 1st DCA
2004); Ghani v. Dep't of Health, 714 So. 2d 1113 (Fla. 1st DCA 1998); Willner v. Dep't of Prof'l Reg., Bd. of Med., 563 So. 2d
805 (Fla. 1st DCA 1990).
Disciplinary provisions such as the referenced sections must be strictly construed in favor of the licensee. Elamariah
Dep’t of Prof’l Reg., 574 So. 2d 164 (Fla. 1st DCA 1990);
Taylor v. Dep’t of Prof’l Reg., 534 So. 2d 782, 784 (Fla. 1st DCA
1988). Disciplinary statutes must be construed in terms of their literal meaning, and words used by the Legislature may not be expanded to broaden their application. Latham v. Fla. Comm’n on Ethics, 694 So. 2d 83 (Fla. 1st DCA 1997); see also Beckett v.
Dep’t of Fin. Servs., 982 So. 2d 94, 100 (Fla. 1st DCA 2008); Dyer v. Dep’t of Ins. & Treas., 585 So. 2d 1009, 1013 (Fla. 1st
DCA 1991).
Count I(a) - Employee C’s Personnel File
Section 400.991(5)(b), Florida Statutes, of the Health Care Clinic Act, provides that the Agency for Health Care Administration, as part of the licensing requirements for health care clinics such as that operated by Respondent, “shall require level 2 background screening for applicants and personnel as required in s. 408.809(1)(e) pursuant to chapter 435 and s. 408.809.”
Section 408.809, Florida Statutes, provides, in part,
that:
(1) Level 2 background screening pursuant to chapter 435 must be conducted through the agency on each of the following persons, who are considered employees for the purposes of conducting screening under chapter 435[:]
* * *
(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 . . . .
Section 435.06(2), Florida Statutes, provides, in part, that:
An employer may not hire, select, or otherwise allow an employee to have contact with any vulnerable person that would place the employee 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 of employment, 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.
* * *
(d) An employer may hire an employee to a position that requires background screening before the employee completes the screening process for training and orientation purposes. However, the employee may not have direct contact with vulnerable persons until the screening process is completed and the employee demonstrates that he or she exhibits no behaviors that warrant the denial or termination of employment.
Petitioner does not cite, nor has the undersigned found, any specific statute requiring that an applicant for health care clinic license renewal maintain a copy of Level 2 background screening results in an employee’s personnel file.
Florida Administrative Code Rules 59A-33.002 (2006), 59A-33.060 (2006), and 59A-35.090 (2006) are the Agency’s rules regarding the requirements for background screenings, and nothing in either of the rules directs that background screening results must be kept in an employee’s personnel file.
Rule 59A-33.002(1)(e) provides, in part, that an applicant for license renewal shall include with the application:
[a]ll information required . . . to enable the Agency to evaluate and determine compliance with the Act regarding background screening [and] [t]his information must include the identification of all individuals who must be the subject of Level 2 background screening under standards established in Chapter 435 and Section 400.991(7)(d), F.S., as required on AHCA Form 3110-0013, July 2006, Application for Health Care Clinic Licensure, adopted by reference.
Rule 59A-35.060(1)(w) provides that applicants for licensure must apply “using the program specific forms” and health care clinics must use “AHCA Form 3110-0013, Rev. July 2009.”
There is nothing in the express provisions of either of these rules requiring that Level 2 background screening results be kept in an employee’s personnel file. While it is possible that AHCA Form 3110-0013, July 2006, and AHCA Form 3110-0013, Rev. July 2009, require that Level 2 background screening results be maintained in an employee’s personnel file, the undersigned is
unable to draw any conclusions as to what the referenced forms require, given that they are not a part of the record in this proceeding.
Rule 59A-35.090(3)(a) provides that “[p]ersons required to undergo Level 2 background screening in accordance with a licensure application, must submit the completed and signed fingerprint card and screening fee with an application for licensure to the appropriate Agency licensing unit.” Like the other cited rules, this rule is also devoid of any requirement that Level 2 background results be maintained in an employee’s personnel file.
Rule 59A-33.012(5)(r) provides that health care clinics, at the time of the survey, shall have readily available for review a “[l]og of all natural persons required and who have been screened under Level 2 criteria of Chapter 435 and Section 400.991, F.S.” Ms. Bulger, in her survey report, notes that Respondent did not maintain a log showing that employee “C” was “required to be screened . . . [or was] screened under Level 2 criteria.” Despite the fact that Ms. Bulger’s survey finding corresponds precisely with rule 59A-33.012(5)(r), Petitioner, nevertheless, charged Respondent with violating rule 59A- 33.012(5)(h), which directs applicants for licensure to make employee personnel files available to the surveyor. Rule 59A- 33.012(5)(h) is silent as to what is required to be in an
employee’s personnel file, and Petitioner has failed to prove by clear and convincing evidence that the cited rule includes Level
2 background screening results within its scope. Petitioner has failed to meet its burden of proof with respect to this allegation.
Count I(b) - Attestation Regarding Background Screening
Section 435.05(2) provides that every covered employee who is required by law to submit to a Level 2 background screening “must attest, subject to penalty of perjury, to meeting the requirements for qualifying for employment pursuant to this chapter and agreeing to inform the employer immediately if arrested for any of the disqualifying offenses while employed by the employer.” Section 408.809 also directs that licensees must, under penalty of perjury, attest by affidavit compliance with the provisions of chapter 435. Petitioner proved by clear and convincing evidence that Respondent failed to comply with the attestation requirements.
Count II - Monitoring Florida Licenses
Section 400.9935, Florida Statutes, provides, in part, as follows:
(1) Each clinic shall appoint a medical director or clinic director who shall agree in writing to accept legal responsibility for the following activities on behalf of the clinic. The medical director or the clinic director shall:
* * *
(b) Ensure that all practitioners providing health care services or supplies to patients maintain a current active and unencumbered Florida license.
* * *
(f) Ensure compliance with the recordkeeping, office surgery, and adverse incident reporting requirements of chapter 456, the respective practice acts, and rules adopted under this part and part II of chapter 408.
Florida Administrative Code Rule 59A-33.008(1) provides as follows:
[a] licensed health care clinic may not operate or be maintained without the day-to- day supervision of a single medical or clinic director as defined in Section 400.9905(5),
F.S. The health care clinic responsibilities under Sections 400.9935(1)(a)-(g), F.S., cannot be met without an active, appointed medical or clinic director. Failure of an appointed medical or clinic director to substantially comply with health care clinic responsibilities under Rule 59A-33.012,
F.A.C. and Sections 400.9935(1)(a)-(g), F.S., shall be grounds for the revocation or suspension of the license and assessment of a fine pursuant to Section 400.995(1), F.S.
With regards to section 400.9935(1)(b), Florida Administrative Code Rule 59A-33.012(5) provides that in order to facilitate a license survey, the health care clinic shall have available for review at the time of survey “the professional license or facsimile of the license for the medical or clinic director” and “[c]opies of professional licenses issued by the
respective boards and the Department of Health under the several practice acts.”
The clear and convincing evidence establishes that on the day of the license renewal survey, Dr. Nau, in his capacity as medical director, failed to demonstrate that he was systematically verifying that practitioners at the clinic, who provided health care services or supplies directly to clinic patients, had active, unencumbered Florida licenses.
Count III - Failure to Document “When” and “What”
With regards to section 400.9935(1)(f), Florida Administrative Code Rule 59A-33.008(1) provides, in part, that “[t]he health care clinic responsibilities under section 400.9935(1)(a)-(g), F.S., cannot be met without an active, appointed medical or clinic director.” Furthermore, rule
59A-33.012(5)(s) directs that a health care clinic shall have available for review at the time of the survey “[d]ocumentation for the past two years or from the date of licensure, whichever is earlier, demonstrating in writing compliance, when, and what action was taken by the medical or clinic director to perform the functions, duties and clinic responsibilities under section 400.9935(1)(a)-(g), F.S.”
The clear and convincing evidence establishes that Dr. Nau failed to document and maintain for the two-year period
preceding the survey, records demonstrating “compliance, when and
what action” he took in regards to the performance of his functions, duties, and responsibilities as medical director for the clinic.
Penalty and Administrative Fine
Section 400.995, Florida Statutes, provides, in part, as follows:
In addition to the requirements of part II of chapter 408, the agency may deny the application for a license renewal, revoke and suspend the license, and impose administrative fines of up to $5,000 per violation for violations of the requirements of this part or rules of the agency. In determining if a penalty is to be imposed and in fixing the amount of the fine, the agency shall consider the following factors:
The gravity of the violation, including the probability that death or serious physical or emotional harm to a patient will result or has resulted, the severity of the action or potential harm, and the extent to which the provisions of the applicable laws or rules were violated.
Actions taken by the owner, medical director, or clinic director to correct violations.
Any previous violations.
The financial benefit to the clinic of committing or continuing the violation.
Rule 59A-33.008(1) provides, in part, that the “[f]ailure of an appointed medical or clinic director to substantially comply with health care clinic responsibilities under Rule 59A-33.012, F.A.C. and [s]ection 400.9935(1)(a)-(g),
F.S., shall be grounds for the revocation or suspension of the license and assessment of a fine pursuant to [s]ection 400.995(1), F.S.”
As to Counts I and II of the Administrative Complaint, the clear and convincing evidence establishes that Respondent substantially failed to comply with the provisions of the governing statutes and rules. While it is true, with respect to Count III, that Petitioner proved that Respondent failed to document “when” and “what” in some of his reports, the undersigned is unable to determine the extent of Respondent’s non-compliance as there was no analysis of the reports offered into evidence by Petitioner. The requirement of substantiality cannot be met by simply offering the deficient reports into evidence “en masse” without any supporting analysis.
In considering the factors enumerated in section 400.995(1), there was no evidence establishing the gravity of the violations. This lack of evidence weighs against license revocation.
The evidence establishes that Respondent has taken action (e.g., submitting appropriate employee attestations) aimed at correcting the various deficiencies. This positive step by Respondent weighs against license revocation.
A second offense for failing to secure employee attestations does not in itself weigh in favor of license
revocation. However, the fact that Count I is the same as the violation committed by Respondent some 21 months prior justifies the imposition of a substantial monetary fine. Count II of the Administrative Complaint is a first offense occurrence and this weighs against license revocation.
Finally, there was no credible evidence offered establishing that Respondent derived a financial benefit as a consequence of or incentive for committing the enumerated violations. The absence of such evidence weighs against license revocation.
In considering the totality of the circumstances, Respondent’s license should be suspended for 10 business days (five days each for Counts I and II), and a fine imposed in the amount of $1,500 for Count I and $2,000 for Count II. Count III of the Administrative Complaint should be dismissed because Petitioner failed to meet its burden of proving by clear and convincing evidence that Respondent failed to substantially comply with its health care clinic record keeping responsibilities.
