STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Case No. 2018017505 Petitioner, Facility Type: Adult Family-Care Home v. YOLETTE ETIENNE, Respondent. ADMINISTRATIVE COMPLAINT COMES NOW the Petitioner, State of Florida, Agency for Health Care Administration (“the Agency”), by and through its undersigned counsel, and files this Administrative Complaint against the Respondent, Yolette Etienne (“Respondent”), pursuant to Sections 120.569 and 120.57, Florida Statutes (2018), and alleges: NATURE OF THE ACTION This is an action against an adult family-care home to impose an administrative fine in the amount of five hundred dollars ($500.00) based upon one (1) unclassified deficient practice. JURISDICTION AND VENUE 1. The Agency has jurisdiction pursuant to §§ 20.42, 120.60, and Chapters 408, Part II, and 429, Part II, Florida Statutes (2018). 2. Venue lies pursuant to Florida Administrative Code R. 28-106.207. PARTIES 3. The Agency is the regulatory authority responsible for licensure of adult family-care homes and enforcement of all applicable regulations, state statutes and rules governing adult family-care homes pursuant to the Chapters 408, Part II, and 429, Part II, Florida Statutes, and Chapter 58A-14, Florida Administrative Code, respectively. 4. Respondent operates a five (5) bed adult family-care home located at 3500 Plymouth Sorrento Road, Apopka, Florida 32712, and is licensed as an adult family-care home, license number 6906708. 5. Respondent was at all times material hereto a licensed facility under the licensing authority of the Agency, and was required to comply with all applicable rules and statutes. COUNT I 6. The Agency re-alleges and incorporates paragraphs (1) through (5) as if fully set forth herein. 7. That on July 11, 2018, the Agency completed a re-licensure survey of Respondent and its facility. 8. Under Florida law, the agency shall require level 2 background screening for personnel as required in s. 408.809(1)(e), including the adult family-care home provider, the designated relief person, and all adult household members, pursuant to chapter 435 and s. 408.809. § 429617(4), Fla. Stat. (2018). 9. Under Florida law, 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: (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. (€) 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. (2018). 10. Under Florida law, every 5 years following his or her licensure, employment, or entry into a contract in a capacity that under subsection (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. For any such rescreening, the agency shall request the Department of Law Enforcement to forward the person’s fingerprints to the Federal Bureau of Investigation for a national criminal history record check unless the person’s fingerprints are enrolled in the Federal Bureau of Investigation’s national retained print arrest notification program. If the fingerprints of such a person are not retained by the Department of Law Enforcement under s. 943.05(2)(g) and (h), the person must submit fingerprints electronically to the Department of Law Enforcement for state processing, and the Department of Law Enforcement shall forward the fingerprints to the Federal Bureau of Investigation for a national criminal history record check. The fingerprints shall be retained by the Department of Law Enforcement under s. 943.05(2)(g) and (h) and enrolled in the national retained print arrest notification program when the Department of Law Enforcement begins participation in the program. The cost of the state and national criminal history records checks required by level 2 screening may be borne by the licensee or the person fingerprinted. Until a specified agency is fully implemented in the clearinghouse created under s. 435.12, the agency may accept as satisfying the requirements of this section proof of compliance with level 2 screening standards submitted within the previous 5 years to meet any provider or professional licensure requirements of the agency, the Department of Health, the Department of Elderly Affairs, the Agency for Persons with Disabilities, the Department of Children and Families, or the Department of Financial Services for an applicant for a certificate of authority or provisional certificate of authority to operate a continuing care retirement community under chapter 651, provided that: (a) The screening standards and disqualifying offenses for the prior screening are equivalent to those specified in s. 435.04 and this section; (b) The person subject to screening has not had a break in service from a position that requires level 2 screening for more than 90 days; and (c) Such proof is accompanied, under penalty of perjury, by an attestation of compliance with chapter 435 and this section using forms provided by the agency. (3) All fingerprints must be provided in electronic format. Screening results shall be reviewed by the agency with respect to the offenses specified in s. 435.04 and this section, and the qualifying or disqualifying status of the person named in the request shall be maintained in a database. The qualifying or disqualifying status of the person named in the request shall be posted on a secure website for retrieval by the licensee or designated agent on the licensee’s behalf. § 408.809(2), Fla. Stat. (2018). 11. Under Florida law, 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 or any similar offense of another jurisdiction listed in Section 408.809(4). § 408.809(4), Fla. Stat. (2018). 12. Under Florida law, 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. § 435.06(1), Fla. Stat. (2018). 13. Under Florida jaw, (a) 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 Section 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. (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. § 435.06(2){a)-(d), Fla. Stat. (2018). 14. 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, must be dismissed. § 435.06(3), Fla. Stat. (2018). 15. Under Florida law, Level 2 background screening must be conducted for staff, including staff contracted by the facility to provide services to residents, pursuant to Sections 408.809 and 429.174, F.S. Rule 58A-5.019(3)(f), Florida Administrative Code. 16. Under Florida law, a person who serves as a controlling interest of, is employed by, or contracts with a licensee on July 31, 2010, who has been screened and qualified according to standards specified in s. 435.03 or s. 435.04 must be rescreened by July 31, 2015, in compliance with the following schedule. If, upon rescreening, such person has a disqualifying offense that was not a disqualifying offense at the time of the last screening, but is a current disqualifying offense and was committed before the last screening, he or she may apply for an exemption from the appropriate licensing agency and, if agreed to by the employer, may continue to perform his or her duties until the licensing agency renders a decision on the application for exemption if the person is eligible to apply for an exemption and the exemption request is received by the agency within 30 days after receipt of the rescreening results by the person. The rescreening schedule shall be: (a) Individuals for whom the last screening was conducted on or before December 31, 2004, must be rescreened by July 31, 2013. (b) Individuals for whom the last screening conducted was between January 1, 2005, and December 31, 2008, must be rescreened by July 31, 2014. (c) Individuals for whom the last screening conducted was between January 1, 2009, through July 31, 2011, must be rescreened by July 31, 2015. § 408.809(5), Fla. Stat. (2018). 17. Under Florida law, “Staff’ means any person employed by a facility; or contracting with a facility to provide direct or indirect services to residents; or employees of firms under contract to the facility to provide direct or indirect services to residents when present in the facility. The term includes volunteers performing any service which counts toward meeting any staffing requirement of this rule chapter. Rule 58A-5.0131(34), Florida Administrative Code. 18. Based upon record review and interview, the Respondent failed to ensure that the facility’s staff had the required background screening or exemption for one (1) of two (2) sampled employees, the same being contrary to law. 19. That Petitioner’s representative arrived at Respondent’s facility on July 11, 2018, at 9:15 a.m., and staff member “C” answered the door, allowing the entry of Agency personnel, who noted staff member “C” going into resident rooms. 20. That on July 11, 2018, at 11:30 am., staff member “C” admitted to Petitioner’s representative that she provided assistance to residents. 21. °That Petitioner’s representative reviewed Respondent’s personnel records during the survey and noted the following for staff member “C:” a. The file contained fingerprints and a letted from the Orange County Sheriff's Office noting the staff member did not have any arrest. b. A work contract noted the staff member was hired on March 20, 2018. c. Absent from the record was any Level 2 criminal background screening. 22. That Petitioner’s representative reviewed the Agency’s criminal background screening database and could locate no Level 2 criminal histroy background screening for Respondent’s staff member “C.” 23. That Petitioner’s representative interviewed Respondent regarding staff member “C” and Respondent indicated that she thought the fingerproint result from the Orange County Sheriff showing no arrests could be used. 24. That providers are required to obtain and maintain such records as criminal history background screening for Agency review in personnel records. See, Rule 58A-5.024(2)(a), Florida Administrative Code. 25. That Respondent aliowed individuals, in an employment or volunteer role, access to residents, their records, and property, without having obtained a criminal history background check on the individual, the same being contrary to the mandates of law. 26. | The Respondent’s actions or inactions constituted a violation of Sections 429.174 and 408.809, Florida Statutes (2018). 27. Under Florida law, in addition to the requirements of part II of Chapter 408, the Agency may deny, revoke, and suspend any license issued under this part and impose an administrative fine in the manner provided in Chapter 120 against a licensee for a violation of any provision of Part I or Chapter 429, Part II of Chapter 408, or applicable rules, or for any of the following actions by a licensee, for the actions of any person subject to level 2 background screening under Section 408.809, Florida Statutes, or for the actions of any facility employee: ... Failure to comply with the background screening standards of Chapter 429, Part I, Section 408.809(1), or Chapter 435, Florida Statutes. § 429.14(1)(f), Fla. Stat. (2018). 28. Under Florida law, regardless of the class of violation cited, instead of the fine amounts listed in paragraphs (a)-(d), the agency shall impose an administrative fine of $500 if a facility is found not to be in compliance with the background screening requirements as provided in s. 408.809. § 429.19(2)(e), Fla. Stat. (2018). 29. Under Florida law, the Agency may impose an administrative fine for a violation that is not designated as a class I, class IJ, class III, or class IV violation. Unless otherwise specified by law, the amount of the fine may not exceed $500 for each violation. Unclassified violations include: Violating any provision of this part, authorizing statutes, or applicable rules. § 408.813(3)(b), Fla. Stat. (2018). WHEREFORE, the Petitioner, State of Florida, Agency for Health Care Administration, seeks to impose an administrative fine of five hundred dollars ($500.00) against the Respondent. Respectfully submitted this oth day of February, 2019. STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION “ale Nicola L. C. Brown Assistant General Counsel Fla. Bar No. 492507 525 Mirror Lake Dr. N., Suite 330H St. Petersburg, Florida 33701 Telephone: (727) 552-1946 Fax: (727) 552-1440 Nicola.Brown@ahca.myflorida.com NOTICE The Respondent is notified that it/he/she has the right to request an administrative hearing pursuant to Sections 120.569 and 120.57, Florida Statutes. If the Respondent wants to hire an attorney, it/he/she has the right to be represented by an attorney in this matter. Specific options for administrative action are set out in the attached Election of Rights form. The Respondent is further notified if the Election of Rights form is not received by the Agency for Health Care Administration 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 made to the Agency for Health Care Administration and delivered to: Agency Clerk, Agency for Health Care Administration, 2727 Mahan Drive, Building 3, Mail Stop 3, Tallahassee, FL 32308; Telephone (850) 412-3630. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been served by U.S. Certified Mail, Return Receipt No. 7018 2290 0001 4174 1551 on February 5, 2019, to Yolettre Etienne, 3500 Plymouth Sorrento Road, Apopka, Florida 32712. Nhe Brow Nicola L. C. Brown Copy furnished to: Theresa DeCanio, RN Field Office Manager STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION Re: YOLETTE ETIENNE AHCA No.: 2018017505 ELECTION OF RIGHTS This Election of Rights form is attached to an Administrative Complaint. The Election of Rights form may be returned by mail or by facsimile transmission, but_must be filed with the Agency Clerk within 21 days by 5:00 p.m., Eastern Time, of the day that you received the Administrative Complaint. If your Election of Rights form with your selected option (or request for hearing) is not timely received by the Agency Clerk, the right to an administrative hearing to contest the proposed agency action will be waived and an adverse Final Order will be issued. In addition, please send a copy of this form to the attorney of record who issued the Administrative Complaint. (Please use this form unless you, your attorney or your qualified representative prefer to reply according to Chapter120, Florida Statutes, and Chapter 28, Florida Administrative Code.) The address for the Agency Clerk is: Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Building #3, Mail Stop #3 Tallahassee, Florida 32308 Telephone: 850-412-3630 Facsimile: 850-921-0158 PLEASE SELECT ONLY 1 OF THESE 3 OPTIONS OPTION ONE (1) I waive the right to a hearing to contest the allegations of fact and conclusions of law contained in the Administrative Complaint. I understand that by giving up my right to a hearing, a final order will be issued that adopts the proposed agency action and imposes the fine, sanction or other agency action. OPTION TWO (2) 1 admit the allegations of fact contained in the Administrative Complaint, but I wish to be heard at an informal hearing (pursuant to Section 120.57(2), Florida Statutes) where I may submit testimony and written evidence to the Agency to show that the proposed administrative action is too severe or that the fine, sanction or other agency action should be reduced. OPTION THREE (3) I dispute the allegations of fact contained in the Administrative Complaint and request a formal hearing (pursuant to Section 120.57(1), Florida Statutes) before an Administrative Law Judge appointed by the Division of Administrative Hearings. PLEASE NOTE: Choosing OPTION THREE (3), by itself, is NOT sufficient to obtain a formal hearing. You also must file a written petition in order to obtain a formal hearing before the Division of Administrative Hearings under Section 120.57(1), Florida Statutes. It must be received by the Agency Clerk at the address above within 21 days of your receipt of this proposed agency action. The request for formal hearing must conform to the requirements of Rule 28-106.2015, Florida Administrative Code, which requires that it contain: 1. Thename, address, telephone number, and facsimile number (if any) of the Respondent. 2. The name, address, telephone number, and facsimile number of the attorney or qualified representative of the Respondent (if any) upon whom service of pleadings and other papers shall be made. 3. A statement requesting an administrative hearing identifying those material facts that are in dispute. If there are none, the petition must so indicate. 4. A statement of when the respondent received notice of the administrative complaint. 5. A statement including the file number to the administrative complaint. Licensee Name: Contact Person: Title: Address: Number and Street City Zip Code Telephone No. Fax No. E-Mail (Optional) I hereby certify that I am duly authorized to submit this Election of Rights to the Agency for Health Care Administration on behalf of the licensee referred to above. Signed: Date: Print Name: Title 12 USPS Tracking: Tracking FAQs_ Track Another Package + Remove Tracking Number: 70182290000141741551 Your item was delivered to an individual at the address at 3:37 pm on February 8, 2019 in APOPKA, FL 32712. Status Delivered February 8, 2019 at 3:37 pm Delivered, Left with Individual APOPKA, FL 32712 Get Updates Delivered

Docket for Case No: 19-001522

Orders for Case No: 19-001522