STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NIKITA JOHNSON, )

)

Petitioner, )

)

vs. ) Case No. 01-0515

)

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Respondent. )

)

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly-appointed Administrative Law Judge,

Fred L. Buckine, held a formal hearing in this case on April 4, 2001, in Clearwater, Florida.

APPEARANCES

For Petitioner: Nikita Johnson, pro se

121 North Mercury Avenue Clearwater, Florida 33765

For Respondent: Christine T. Messana, Esquire

Agency for Health Care Administration 2727 Mahan Drive

Fort Knox Building 3, Suite 3431

Tallahassee, Florida 32308 STATEMENT OF THE ISSUE

Whether the Agency's denial of Petitioner's request for exemption for employment as a Certified Nursing Assistant in an

Assisted Living Facility pursuant to Section 435.07, Florida

Statutes, was proper.

PRELIMINARY STATEMENT

Petitioner submitted an application to the Agency for Health Care Administration (Agency), received on September 5, 2000, requesting exemption from disqualification from employment in an assisted living facility. On October 27, 2000, Petitioner was notified of the Agency's denial of her request for exemption from disqualification from employment. The denial was based upon Petitioner's criminal history consisting of two separate arrests and three nolo contendere pleas having been entered. On November 4, 2000, Petitioner challenged the denial and timely filed a request for formal administrative hearing pursuant to section 120.57, Florida Statutes. On February 1, 2001, the Department referred the case to the Division of Administrative Hearings for assignment to an administrative law judge to resolve disputed facts.

On February 8, 2001, an Order of Pre-hearing Instructions and a Notice of Hearing, scheduling the final hearing for March 29, 2001, with venue in Tallahassee, Florida, were issued.

Petitioner's ore tenus request for change of venue to Clearwater

was granted. On March 9, 2001, Respondent filed a Motion for Extension of Time to File Witness and Exhibit List, and an order granting the requested extension of time was entered. On

March 29, 2001, an amended order rescheduling the final hearing for April 4, 2001, in Clearwater, Florida, was entered.

At the final hearing, Petitioner, Nikita Johnson, after notice by mail at her last known address of the date, time, and place of the final hearing, did not appear. Three telephone calls were made to Petitioner's residence, and each call was answered by Petitioner's answering machine. After waiting approximately 45 minutes for Petitioner's appearance, the final hearing proceeded.

Respondent presented the testimony of Greg Rice, M.S.W., Operations and Management Consultant Manger, for the Agency. Respondent's exhibits (R1-4), including a transcript of Nikita Johnson's telephonic hearing by Assisted Living Facility licensing unit on October 23, 2000, were received in evidence.

FINDINGS OF FACT

1. The Agency for Health Care Administration is responsible for conducting background screenings for employees of health care facilities licensed under Chapter 400, Florida Statutes.

2. At all times material to this case, Petitioner, Nikita Johnson, a licensed certified nursing assistant, was employed by an assisted living facility in Pinellas County, Florida, providing personal services to the residents therein.

3. On or before October 23, 2000, and after a level I background screening by the Assisted Living Facility (AFL) licensing unit, Petitioner requested a hearing on her exemption for employment application. On October 23, 2000, the ALF licensing unit conducted a telephonic hearing on Petitioner's request for an exemption for employment. ALF licensing unit denied Petitioner's request for exemption.

4. The Agency proved that on December 23, 1998, Petitioner was arrested on the felony charge of sexual assault: a sexual offense against a child, and lewd lascivious acts in the presence of a child under the age of 16 years. The felony charges were reduced to misdemeanor charges. Petitioner entered a plea of guilty to each of the two counts of battery, was convicted, and sentenced to one-year probation, plus payment of a fine and court cost. Petitioner completed the terms and conditions of her probation on or about April 4, 2001.

5. The Agency proved that on February 19, 2000, Petitioner was arrested on the misdemeanor charge of disorderly conduct, and on April 4, 2000, entered a plea of nolo contendere to which adjudication was withheld and a fine imposed.

6. Petitioner has committed disqualifying offenses as defined by Chapter 435, Florida Statutes.

7. Additionally, Petitioner is ineligible for exemption based on a failure to demonstrate any rehabilitative efforts and an appreciation of the seriousness of the criminal charges.

8. Petitioner has not met her burden of clear and convincing evidence that she should not be disqualified from employment as required by Section 435.07(3), Florida Statutes.

9. By mail at the last known address, Petitioner was notified of the time, date, and place of the final hearing and chose not to appear.

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and of the parties thereto pursuant to Section 120.57(1), Florida Statutes, and Chapter 435, Florida Statutes.

11. Section 400.414(1), Florida Statutes, in part, provides:

    1. The Agency may deny, revoke, or suspend any license issued under this part, for any of the following actions . . . for any person subject to a level 2 background screening under s. 400.4174, or any facility employee:

       
       

       * * *

       
       

       (f) A determination that . . . an employee subject to level 1 background screening standards under s. 400.4174(2) who does not meet the screening standards of S. 4435.03 and for whom exemptions from

       disqualification have not been provided by the agency.

       
       

12. Section 400.4174(2), Florida Statutes, in part, provides:

    (2) The owner or administrator of an assisted living facility must conduct level

    1 background screening, as set forth in Chapter 435, on all employees hired on or after October 1, 1998, who perform personal services as defined in Section 400.402(17).

    . . .

13. Section 400.402(17), in part, provides:

    
    

    (17) "Personal services" means direct physical assistance with or supervision of the activities of daily living and the self- administration or medication and other similar services, which the department may define by rule. "Personal services" shall not be construed to mean the provisions of medical, nursing, dental, or mental health services.

    
    

14. Section 435.03, Florida Statutes, in part, provides:

    
    

    1. All employees required by law to be screened shall be required to undergo background screening as a condition of employment and continued employment. For the 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.

       
       

    2. Any person for whom employment screening is required by statute must not have been found guilty of, regardless of adjudication, or entered a plea of nolo contendere or guilty to, any offense prohibited under any of the following

       provisions of the Florida Statutes or under any similar statute of another jurisdiction:

       
       

       * * *

       
       

       (h) Section 784.03 relating to battery, if the victim of the offense was a minor.

       
       

       * * *

       
       

       (l) Section 794.011, relating to sexual battery.

       
       

       * * *

       
       

       1. Section 798.02, relating to lewd and lascivious behavior.

          
          

       2. Chapter 800, relating to lewdness and indecent exposure.

       * * *

       
       

       1. Section 827.03, relating to child abuse, aggravated child abuse, or neglect of a child.

          
          

       2. Section 827.04, relating to contributing to the delinquency or dependency of a child.

       
       

15. Petitioner's arrest on sexual related offenses against children, and her subsequent arrest of two counts of battery against a minor, to which pleas of nolo contendere were entered, justified the AFL's denial of Petitioner's application for exemption from employment.

16. The nature of the charges described in the findings of fact, the lack of rehabilitative efforts, a failure to appreciate the seriousness the criminal charges, demonstrate the

inappropriateness of trusting Petitioner with personal service employment in an assisted living facility.

RECOMMENDATION

Based upon 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 for employment, pursuant to Section 435, Florida Statutes.

DONE AND ENTERED this 1st day of May 2001, in Tallahassee, Leon, County, Florida.

FRED L. BUCKINE

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 1st day of May, 2001.

COPIES FURNISHED:

Nikita Johnson

121 North Mercury Avenue Clearwater, Florida 33765

Christine T. Messana, Esquire

Agency for Health Care Administration 2727 Mahan Drive

Fort Knox Building 3, Suite 3431

Tallahassee, Florida 32308-5403

Sam Power, Agency Clerk

Agency for Health Care Administration 2727 Mahan Drive

Fort Knox Building 3, Suite 3431

Tallahassee, Florida 32308-5403

Julie Gallagher, General Counsel Agency for Health Care Administration 2727 Mahan Drive

Fort Knox Building 3, 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 must be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 01-000515

Orders for Case No: 01-000515