The Issue The issue presented is whether Respondent, Roberto Rivera, M.D. (Dr. Rivera or Respondent), violated section 458.331(1)(b) and (kk), Florida Statutes (2012), as alleged in the Administrative Complaint, and if so, what penalty should be imposed.
Findings Of Fact Respondent is a medical doctor licensed in the State of Florida, having been issued license number ME 54313. Respondent did not dispute his status as a licensed medical doctor in this proceeding. Petitioner is the state agency charged with regulating the practice of allopathic medicine in the State of Florida, pursuant to section 20.43 and chapters 456 and 458, Florida Statutes. Respondent is also licensed as a medical doctor in the State of New Jersey. No evidence was presented regarding Respondent’s board certification or lack thereof. The licensing authority regulating the practice of medicine in the State of New Jersey is the New Jersey State Board of Medical Examiners (New Jersey Board), within the Department of Law and Public Safety, Division of Consumer Affairs. On January 7, 2013, the Hearing Committee of the New Jersey Board entered an Order of Temporary Suspension and Report of Hearing Committee to the Board (Committee Order). The Committee Order was issued nunc pro tunc to December 20, 2012, the date an evidentiary hearing was conducted before the Committee. The Committee Order temporarily suspended Dr. Rivera’s license to practice medicine, effective December 20, 2012, with the suspension to continue until such time as the New Jersey Board considered the record at its next scheduled meeting, and until further order of the New Jersey Board. The Committee Order also required Dr. Rivera to immediately cease the practice of medicine in New Jersey; to surrender his original medical license, biennial registration, New Jersey controlled dangerous substances (CDS) registration and Drug Enforcement Administration (DEA) registration to the New Jersey Board office pending further Order of the New Jersey Board; and to comply with the directives regarding licensees who have been disciplined, which were attached to the Committee Order and incorporated by reference. The Committee Order was subject to review and ratification by the full New Jersey Board at its meeting scheduled for January 9, 2013. The New Jersey Board considered the Committee Order at its meeting on January 9, 2013. At that time, the Board voted to ratify and adopt, in its entirety, the Committee Order, and on January 17, 2013, the New Jersey Board issued an Order Continuing Temporary Suspension of License (Continued Suspension Order). The Continued Suspension Order adopts, in its entirety, the Committee Order; continues the suspension of Dr. Rivera’s medical license in New Jersey pending review following completion of plenary proceedings in the matter; and stayed those further proceedings at the request of Dr. Rivera, until the resolution of the criminal charges pending against him following his arrest on November 17, 2012, in Ridgewood, New Jersey. The Committee Order, standing alone, does not constitute action by the licensing authority of another jurisdiction. However, the Committee Order as ratified by the Continuing Suspension Order does constitute action by the licensing authority of another jurisdiction. Respondent did not report either New Jersey action to the Florida Board of Medicine within 30 days.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Board of Medicine enter a Final Order finding that Respondent has violated section 458.331(1)(b) and (kk), Florida Statutes (2012). It is further recommended that the Board suspend his Florida license to practice medicine until such time as his New Jersey license is unencumbered; and impose an administrative fine of $1,500. DONE AND ENTERED this 1st day of July, 2014, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of July, 2014.
The Issue Whether the Board of Clinical Social Work, Marriage and Family Therapy, and Mental Health Counseling (Board) erred in issuing an order that denied reinstatement of Irene Acosta's (Ms. Acosta or Petitioner) mental health intern license.
Findings Of Fact The Board is the state agency that licenses mental health interns in the State of Florida. The Board initially licensed Ms. Acosta as a mental health intern on March 19, 1999, when it issued to her license number IMH 1515. This license was issued after Ms. Acosta completed and submitted to the Board an application for the license. Ms. Acosta received her higher education from Newport University in California. It is the Board's position that in 2002, Newport University, located in California, was not a regionally accredited university as defined by the Council on Higher Education and, consequently, degrees from that institution did not meet the Board's credentialing requirements for licensure as a mental health intern. Newport University, located in Virginia, was appropriately accredited, and degrees from that institution met the Board's credentialing requirements. Newport University in California is not affiliated with Newport University in Virginia. Ms. Acosta provided to the Board as part of her application package transcripts and correspondence from Newport University which clearly indicate that the university is in California, not Virginia. Ms. Acosta did not bribe, coerce, use undue influence, make fraudulent misrepresentations, commit any intentional wrongdoing, or unlawfully conceal any information in order to obtain her intern license. Intern licenses are issued for two-year periods. Ms. Acosta's license was last renewed on February 5, 2001. In 2002, the Board realized that Ms. Acosta had obtained her master's degree from Newport University in California. The Board, notwithstanding a diligent search and investigation, is unable to determine how Ms. Acosta's credentialing issue was brought to its attention. That determination could not be made because of the passage of time and the possible destruction of documents. In 2002, Ms. Foster was Executive Director for the Board. Ms. Foster concluded that Ms. Acosta's license had been issued in error because Ms. Acosta lacked required educational credentialing. By letter dated March 18, 2002, Ms. Foster advised Ms. Acosta as follows: As the Executive Director for the Board of Clinical Social Work, Marriage & Family Therapy, and Mental Health Counseling, I am writing concerning your intern registration license which was issued by the Board on March 19, 1999. At the time your application was approved, Newport University was not a regionally accredited university as defined by the Council on Higher Education. As such, the intern registration was issued in error. Section 491.009(1)(a), F.S. provides that: The following acts constitute grounds for denial of a license or disciplinary action as specified in s. 456.072(2): Attempting to obtain, obtaining, or renewing a license, registration, or certificate under this chapter by bribery or fraudulent misrepresentation or through an error of the board or the department. After consulting with Board counsel, I have been instructed to request that you voluntarily relinquish your intern registration licensed [sic] within 15 days of the receipt of this letter. Failure to do so will result in a complaint being filed with the Agency for Health Care Administration. Should you have any questions, please feel free to contact us at our office at . . . . Petitioner contacted Ms. Foster by telephone to discuss the March 18 letter. Petitioner told Ms. Foster that she was going to contact an attorney to advise her. John Schwartz, Petitioner's attorney, contacted Ms. Foster by letter dated April 1, 2002. Among other questions, Mr. Schwartz asked for documentation that Newport University was not regionally accredited. Edward A. Tellechea was, in 2002, an Assistant Attorney General who served as legal counsel for the Board. Mr. Tellechea responded to Mr. Schwartz's letter by letter dated April 16, 2002. Mr. Tellechea's letter identified his status as counsel for the Board and included the following: Chapter 491.005(4)(b)2., Florida Statutes, requires that the education programs for mental health counseling applicants be obtained from institutions that are properly accredited. The relevant statutory language reads as follows: 2. Education and training in mental health counseling must have been received in an institution of higher education which at the time the applicant graduated was fully accredited by a regional accrediting body recognized by the Commission on Recognition of Postsecondary Accreditation. . . . Based upon the publication titled: The Accredited Institutions of Postseconday Education, which is published in consultation with the Council for Higher Education Accreditation, Newport University in Newport Beach, California, is not an institution that is accredited by a regional accrediting body recognized by the Commission on Recognition of Postsecondary Accreditation. It does contain the name of a Newport University, with is located in the Commonwealth of Virginia, but Board staff has verified that the two institutions are not affiliated with each other. If you have any documentation that indicates that Newport University [in California] is accredited by a regional accrediting body recognized by the Commission on the Recognition of Postsecondary Accreditation, please forward it to the Board office by May 2, 2002. Otherwise, this matter will be referred to the Agency for Health Care Administration for appropriate legal action. Mr. Schwartz provided Ms. Acosta with a copy of Mr. Tellechea's letter. On May 7, 2002, Robin McKenzie, a program administrator for the Florida Department of Health, sent a memo to the Bureau of Consumer Protection within the Agency for Health Care Administration (Consumer Protection) that contained the following: Please initiate a complaint against Irene Acosta. An intern registration license was issued to her in error. A letter dated March 18, 2002, was sent to Ms. Acosta requesting that she voluntarily relinquish this license. As of this date, Ms. Acosta has not returned her license to the board office. Petitioner relinquished her license by handwritten letter addressed to Ms. Foster. The letter, dated May 1, 2002, bears Ms. Acosta's signature. The letter, received by Ms. Foster's office on May 7, 2002, provided as follows: As requested by your office, I hereby relinquish my intern registration license. Thank you for all your help. Please note I have destroyed the license. On May 21, 2002, Ms. McKenzie sent a memo to Consumer Protection that enclosed a copy of Ms. Acosta's letter dated May 1, 2002, and asked that the complaint against her be closed. Between the time she was issued the subject license and the time she relinquished the license, Ms. Acosta earned her livelihood working as a mental health counselor. Petitioner never engaged in any unlawful concealment or otherwise intentional wrongdoing in her application process. When she submitted her application, Ms. Acosta was unaware that Newport University (in California) was not accredited for purposes of her licensure application. Petitioner testified that when she relinquished her license, she was unaware that she could have had the Board's intended action reviewed by a probable cause committee or challenge the intended action in an administrative hearing. She further testified that had she known of these rights, she would have challenged the intended action. She further testified that she relinquished her license because she believed that she would be charged with a crime if she did not do so. That testimony has been considered in making the finding as to voluntariness that follows. Also considered is the fact that Ms. Acosta consulted an attorney before deciding to relinquish her license. While it is evident that Petitioner did not want to relinquish her license, and did so only after concluding she had no other choice than to proceed to an administrative hearing, the Board did not coerce her into that action. Ms. Foster's letter and Mr. Tellechea's letter identified the problem with Ms. Acosta's credentials and simply laid out her options - - either relinquish the license or the Board will file an administrative complaint to revoke the license.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Health, Board of Clinical Social Work, Marriage and Family Therapy, and Mental Health Counseling enter a Final Order adopting the findings of fact and conclusions of law set forth in this Recommended Order. It is further Recommended that the Final Order deny Irene Acosta's "Amended Emergency Motion to Reinstate Licensed Mental Health Counselor Intern License or for Alternative Relief." DONE AND ENTERED this 16th day of November, 2012, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of November, 2012. COPIES FURNISHED: Howard J. Hochman, Esquire Law Offices of Howard J. Hochman Suite 210 7695 Southwest 104th Street Miami, Florida 33156 Deborah B. Loucks, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399 Susan Foster, Executive Director Department of Health Board of (Certified Master Social Worker) Clinical Social Work, Marriage and Family Therapy, and Mental Health Counseling 4052 Bald Cypress Way, Bin C08 Tallahassee, Florida 32399-3258 Jennifer A. Tschetter, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue Whether or not the School Board of Madison County, Florida may terminate Respondent as one convicted of a crime of mortal turpitude in 1988 or 1989:, pursuant to Section 231.36(4)(c) F.S. [The Petition for Discharge also alleges that a "pattern" of issuing worthless checks over a period of years has been engaged in by Respondent but the "prayer" or charging portion of the Petition is silent as to whether the Petitioner intends this allegation to constitute a specific, separate charge.] Whether or not the School Board of Madison County, Florida may, pursuant to Section 231.44 F.S., terminate Respondent for absence without leave during the period he was incarcerated for passing worthless bank checks.
Findings Of Fact Petitioner, Gene Stokes, is the duly elected Superintendent of Schools of Madison County, Florida. Respondent, Doctor Randall Choice, III, is a member of the instructional staff of the district School Board of Madison County, Florida, employed by the Board under a continuing contract entered into on May 7, 1981. The Respondent was charged in an information filed by the State Attorney of the Third Judicial Circuit on June 27, 1988 with passing a worthless check, the payee being the Madison Inn, drawn upon The North Florida Education Credit Union, Tallahassee, Florida, in the sum of $106.00. There were not sufficient funds in the account to cover the payment of this check, and it was dishonored when presented to The North Florida Education Credit Union for payment. The Respondent was charged in an information filed by the state attorney of the Third Judicial Circuit on September 12, 1988 with passing a worthless check, the payee being Perry Coca Cola, drawn upon The North Florida Education Credit Union, Tallahassee, Florida, in the sum of $61.60. There were not sufficient funds in the account of the Respondent to cover the payment of this check, and it was dishonored when presented to The North Florida Education Credit Union for payment. The check given to the Madison Inn was for lodging and the check to Perry Coca Cola was for products which the Respondent had received. Neither transaction had anything to do with Respondent's professional activities as a school teacher. The Respondent appeared before the Honorable Wetzel Blair, County Judge of Madison County, Florida, on November 2, 1988 and entered a plea of "guilty" to the two informations noted above. The court at that time gave the Respondent the opportunity to make restitution on the two checks and to pay court costs of $46.00 within 30 days. If the Respondent made the restitution and paid the court costs within the prescribed time, the court agreed to withhold adjudication. The Respondent executed the offer of a plea of "guilty", but nonetheless, the court set the matter for trial on December 2, 1988 upon a plea of "not guilty." This "Order Setting Trial" was signed by the judge on November 2, 1988, and stated: Order setting trial date upon the above and foregoing plea of not guilty, trial of this case is set for non-jury trial, on `Friday, December 2, 1988 at 9:00 a.m. [Tr-51-72]. The Respondent did not pay the restitution or court costs within the 30-day period as directed by the Court, and, accordingly, the Respondent was ordered to appear before the Court on January 4, 1989. At that time, the court entered another order reciting that the Respondent had entered a plea of "guilty" on November 2, 1988 and had been directed to pay restitution for the checks in the cases within 30 days. The latter order further recited the fact that the Respondent had paid the restitution, but not within the stipulated time, and that Respondent was therefore sentenced to 30 days in the Madison County Jail. Upon the testimony of Madison County Judge Wetzel Blair, it is found that as of the date of formal administrative hearing, September 20, 1989, Respondent had not been adjudicated guilty of the crime of passing a worthless bank check, even though he was incarcerated in the Madison County Jail from January 4, 1989 until about 4:00 p.m. on January 23, 1989. (TR- 78) On January 4, 1989, the Respondent teacher immediately notified his principal, Mrs. Colleen Campbell, by telephone that he was in jail and that he needed to be granted leave for the period he would be incarcerated, predicted at 30 days. She informed Respondent that he had six days of accrued leave due him and agreed to sign she form requesting/approving that period of leave. She also informed Superintendent Stokes that Respondent was in jail, but she provided no written request for leave for Respondent beyond tee six days to which he was entitled. The superintendent did not know of Respondent's oral request for additional leave until Respondent was released from jail. The principal and superintendent have the authority to approve personal leave up to a teacher's accrued limit, but if insufficient personal leave time has been accumulated, the school board must approve the overage. It is unclear from the record whether preprinted forms are provided for this purpose, but apparently such requests must be made in writing. It is also unclear whether such requests are always submitted directly to the school board or if principals and the superintendent act as conduits for such requests to the school board. However, such written leave requests are usually taken up at each monthly school board meeting, which is often "after the fact" of the requesting teacher's physical absence. Sometimes, the applicant appears at the school board meeting in person. Respondent was released from jail or January 23, 1989 at 4:00 p.m.. On January 24, 1989, the Respondent reported personally to the superintendent, reported his release from jail, and sought to determine his leave status, At that time, the superintendent informed the Respondent that the superintendent was suspending the Respondent with pay until the next school board meeting. Also, the superintendent then informed the Respondent that the superintendent was reporting Respondent's conduct to the Education Practices Commission. The superintendent did then specifically inform the Respondent that he had been absent without leave, as it was presumed the Respondent had been incarcerated for passing worthless bank checks, and that was the thrust of their conversation. At all times during his incarceration of 19 days, the Respondent believed that he had taken the necessary steps to obtain authorized leave, and he assumed, without any affirmative action by the principal, superintendent, or school board that he had been approved for leave with pay up to his accrued six days and for leave without pay for the remainder of the incarceration period. Respondent was incarcerated January 5-23, 1989, inclusive. Resort to a calendar reveals that only 12 of Respondent's 19-day incarceration were week days or work days (One was Martin Luther King's Birthday Holiday.) Respondent was, in fact, approved for his six accrued leave days. Therefore, the balance that Respondent was actually absent without leave amounted to only six days. Neither Superintendent Stokes nor the school board, as a collegiate body, approved Respondent's oral request for leave without pay during the six days in question. Indeed, the school board did not convene until February, when, at the superintendent's request, it altered his suspension of Respondent with pay to a suspension without play. Respondent did not file any after-the-fact written request for leave without pay and present it to the school board when it met in February 1989 to consider the suspension request, although it may be inferred that the school board's suspension of Respondent had the retroactive effect of denying his oral leave request. The citizens of Madison County believe that the passing of a worthless check is morally wrong. The incarceration of the Respondent was not reported in any of the newspapers in the circulation area. There is evidence in the record that Respondent's absence created administrative problems for the superintendent and school board and interfered with the orderly education of students, although most of this disorder relates to the period after the Respondent's suspension, not during his short incarceration period.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that: The school Board of Madison County enter a Final Order finding that Respondent has not violated Section 231.36(4)(c) F.S., in that he has not been convicted of a crime of moral turpitude, and that Respondent has violated Section 231.44 F.S., by being willfully absent from duty without leave, and suspending him without pay from the first day of his absence without leave until the conclusion of the current school year. DONE and ENTERED this 2nd day of January 1990 at Tallahassee, Florida. ELLA JANE DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearing this 2nd day of January, 1990. APPENDIX TO RECOMMENDED ORDER CASE NO. 89-1445 The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF: 1, 2, 6 and 7 are accepted as modified to more closely conform to the record evidence as a whole and to eliminate subordinate and/or unnecessary-material. is rejected as a conclusion of law, not a finding of fact. Further, this has not been established as set forth in FOF 17- 19. is rejected as mostly legal argument. Otherwise the record differs as set out in FOF 6-10. is rejected as a conclusion of law, not a finding of fact. Further, this has not been established as set forth in FOF 6-10 and COL 4. 8 is rejected as a conclusion of law, not a finding of fact. Respondent's PFOF: 1-16 and 18-24 are accepted as modified to more closely conform to the record evidence as a whole and to eliminate subordinate, unnecessary, or cumulative material. 17 is rejected because it is contrary to the record as stated. COPIES FURNISHED: Edwin B. Browning, Jr., Esquire Post Office Drawer 652 Madison, Florida 32340 John R. Weed, P.A. 605 South Jefferson Street Perry, Florida 32347 Gene Stokes, Superintendent Madison County Schools 213 North Duval Madison, Florida 32340
The Issue The issue is whether denial of Petitioner's application for an exemption to disqualification from employment as a certified nursing assistant (CNA) in a long-term care facility is proper.
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, Julian Butler, request for exemption from employment, pursuant to Chapter 435, Florida Statutes. DONE AND ENTERED this 21st 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 21st day of May, 2001. COPIES FURNISHED: Edward A. Tellechea, Esquire Office of Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Julian Butler 1305 Woodbine Street Clearwater, Florida 33762 Ruth R. Stiehl, Ph.D., R.N., Executive Director Board of Nursing Department of Health 4080 Woodcock Drive, Suite 202 Jacksonville, Florida 32207-2714 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way Bin A00 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1701
The Issue Whether Petitioner may be granted an exemption to work in a position of special trust, pursuant to Section 435.07, Florida Statutes.
Findings Of Fact Since July 1997, Petitioner has been employed continuously as a driver for Big Bend Transit, Inc., an organization that provides transportation services to disadvantaged persons. In this capacity, Petitioner provided direct hands-on care to children and disabled adults by driving them from place to place in the course of her job. When Petitioner was hired by Big Bend Transit, Inc., she was screened, pursuant to the provisions of Chapter 435, Florida Statutes. It was determined during this screening that Petitioner had been convicted of a felony for possession of cocaine in 1987 and convicted of the misdemeanor of petit theft in 1994. Both of these offenses occurred in Florida. By operation of law, Petitioner is disqualified from working in a position of special trust on the basis of her 1987 conviction for possession of cocaine. It was stipulated by the parties that the petit theft conviction is non-disqualifying. Petitioner also has had a lengthy involvement with, and dependence on, alcohol and cocaine. From before her 1987 conviction for possession of cocaine until at least August 1994, Petitioner regularly used these drugs to excess. Petitioner and her immediate supervisor, Ms. Eddie B. Smith (no relation), were both apparently under the erroneous impression that it was acceptable for Petitioner to continue her employment in a position of special trust, despite the disqualification letter sent them by certified mail on January 26, 1998. There was nothing unclear about the Agency's notification letter. Petitioner has had an incident-free driving record with Big Bend Transit since her employment. Eddie B. Smith, is the Big Bend Transit supervisor for Petitioner. Ms. Smith has never ridden with Petitioner in the Big Bend van nor has she ever observed Petitioner driving the van. However, she considers Petitioner to be a safe, dependable, responsible driver and employee. She testified that among other Big Bend employees and their disadvantaged clientele, Petitioner's reputation is that "all speak highly of her." Although Eddie B. Smith did not know Petitioner prior to her drug rehabilitation, she is aware of Petitioner's past record and experiences, and still wishes to employ her. From 1987 to 1994, Petitioner repeatedly attended and participated in several substance abuse programs, none of which were successful for her. Notwithstanding her substance abuse during the foregoing period, Petitioner managed to maintain regular employment. Petitioner admitted that the shoplifting incident in September 1994 was inspired by her need to get money to buy cocaine and/or alcohol. However, in August 1994, Petitioner had voluntarily entered detox at Apalachee Center for Human Services, in Tallahassee, and voluntarily proceeded immediately afterward to the residential drug rehabilitation program run by Promise Land Ministries in Crawfordville, Florida. Petitioner admitted to one relapse using alcohol in early 1995, but forthrightly asserted that she knows now that she cannot even take one drink of alcohol, let alone use it socially. Petitioner also used drugs on her one night of relapse. She testified that she has not used either alcohol or drugs since that date in 1995. Petitioner quit smoking cigarettes approximately one year before formal hearing. Primary to Petitioner's successful rehabilitation has been her love for, and taking responsibility for the care of, her son, who is now seven years old. On November 14, 1995, Petitioner tested negative for the use of drugs as part of her employment with Cabot Lodge Motel in Tallahassee, Florida. Petitioner also took a mandatory drug screening test ordered by Big Bend Transit when she went to work for that corporation in July 1997. She also tested drug-free on that occasion. The foregoing two successful drug tests are only accurate to show that Petitioner had not used cocaine or other illegal drugs for a period of two to three days prior to the administration of each test. Petitioner is buying her own home at Lake Talquin Resort. She is a community leader and holds the position of a Director on the Board of the Home Owners' Association at Lake Talquin Resort. As a Director, Petitioner oversees the maintenance and quality of her trailer park neighborhood. Petitioner runs her own yard and cleanup service to supplement her regular employment with Big Bend Transit and also baby-sits for her friends and neighbors. Petitioner's immediate neighbors, who know her both professionally and intimately as a friend and baby-sitter for their nine-year-old son, are Sergeant Shelton Turner of the Gadsden County Sheriff's Office and his wife, Annetheria. According to Mr. and Mrs. Turner, Petitioner is a model neighbor and friend. Both expressed the sentiment that "my house is her house." Mr. Turner serves on the Home Owners' Association Board with Petitioner. He has known Petitioner for ten years and testified that since her rehabilitation, Petitioner has made a 360-degree change in her life. He considers her totally rehabilitated and has seen her "transformation." Sergeant Turner has had an opportunity to observe Petitioner in her home at all hours of the day and night and testified that, "[She's] not in that old white station wagon at the drug hole [anymore]... no one with drugs is ever hanging on [at her house]." Sergeant Turner further testified that two signs of drug abuse can never be observed in Petitioner's home, e.g., the lights are never cut off for failure to pay, and there is always food in the house. Antheria Turner is a Program Director at a group home for the elderly, where she has observed Petitioner with disadvantaged clients. She testified that, "If there were a position in one of my homes, I would have no problem hiring her." Mrs. Turner has only known Petitioner for the last three years during which time Petitioner has been drug-free, but she is well aware of Petitioner's past criminal record and drug/alcohol dependency. Petitioner is an active church-goer and credits her religious faith as another reason for her continued rehabilitation. She is characterized by Ms. Turner as a "good Christian." Edith Smith is the former owner of Precious Angels Family Home Daycare. Ms. Smith is employed elsewhere at the present time, but has known Petitioner for six to seven years. She also has had an opportunity to observe Petitioner's transition, subsequent to her final successful drug rehabilitation. Before rehabilitation, she would distance herself from Petitioner but now Petitioner often babysits for Ms. Smith's four year old daughter, and Ms. Smith considers Petitioner to be "very loving and caring around children," and trustworthy. At formal hearing, the Department presented one witness, a district screening coordinator who did not recommend that Petitioner be granted an exemption from disqualification. She speculated that the Petitioner might be somehow "covering up" possible continued weekend drug abuse. Her testimony is to the effect that if Petitioner could remain fully employed while "using," the fact that Petitioner has remained fully employed since she quit "using" in 1995 should not be considered as part of the evidence of good moral character. Ms. LeClair's testimony does not amount to either a policy statement by the agency or an expert opinion that Petitioner's current full time employment should be held against her. The Department seemed to merely assert a "legal position" that a longer period of rehabilitation should be necessary to clearly and convincingly establish Petitioner's good moral character, under the circumstances of this case.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Children and Family Services enter a final order granting Petitioner Jacqueline Smith's request for exemption from disqualification. DONE AND ENTERED this 2nd day of October, 1998, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of October, 1998. COPIES FURNISHED: Albert Thornburn, Esquire Grant Dearborn, Esquire Legal Services of North Florida, Inc. Suite 200 8 West Jefferson Street Quincy, Florida 32351 John Perry, Esquire Department of Children and Family Services 2639 North Monroe Street Suite 100A Tallahassee, Florida 32399 Gregory D. Venz, Agency Clerk Department of Children and Family Service Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard A. Doran, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issues in this case are: (1) whether Petitioner has been rehabilitated from her disqualifying offense(s); and, if so, whether the intended action to deny Petitioner's exemption request pursuant to section 435.07(3), Florida Statutes (2015),1/ would constitute an abuse of discretion by Respondent.
Findings Of Fact Based on the evidence adduced at the hearing, and the record as a whole, the following material Findings of Fact are made: Petitioner was a 52-year-old female who sought to qualify, pursuant to section 435.07, for employment in a position of trust as a direct service provider for physically or mentally disabled adults or children. This position requires the successful completion of a Level 2 background screening. See § 435.04, Fla. Stat. APD is the state agency responsible for licensing and regulating the employment of persons in positions of trust. Specifically, the mission of the Agency includes serving and protecting the vulnerable population, including children or adults with developmental disabilities. In conformance with the statute, Petitioner was screened by APD since she applied for a position of special trust as a direct service provider of APD. The screening revealed, and the parties stipulated at the hearing, that Petitioner was convicted of the following disqualifying offenses: Theft by Shoplifting--Felony--1987 Theft by Shoplifting--Felony--1987 Forgery (4 counts)--Felonies--1993 Theft by Shoplifting--Felony--1993 Battery-Family Violence--Misdemeanor-- 1996 Forgery--Felony--1998 The stipulation also included the fact that 17 years have elapsed since the last disqualifying offense was committed. The screening revealed, and the parties also stipulated at the hearing, that Petitioner was arrested or convicted of the following non-disqualifying offenses: Simple Battery--Misdemeanor--arrested-- dismissed--1987 Theft by Conversion--convicted--1993 Driving Under the Influence--convicted-- 1994 Criminal Trespass--Misdemeanor-- convicted--2000 The stipulation also included the fact that 15 years have elapsed since the last non-disqualifying arrest or conviction was committed. Rosita Martin At the time of the hearing, Petitioner was unemployed. She had last been employed at Martin's Group Home as a caregiver of vulnerable children who had disabilities or behavioral problems. Her duties included giving out medicines, assisting clients with bathing, and taking kids on outings and to church. She also helped to cook. She explained that most of her convictions occurred during a period of her life when she was in an abusive marriage and suffered from depression. She acknowledged that, during that time period, she was abusing drugs (cocaine) and alcohol. During that same period of time, she admitted that she had purchased and also possessed marijuana. She explained that her battery conviction in 1996 related to a domestic dispute with her husband. She called the police, and they took them both to jail. Although she said she was defending herself, she admitted that she had been convicted and found guilty of battery. Petitioner testified that she is a "good girl now." She attends church every Sunday and "left her problems with drugs." She got sick and tired and "told God to take it away from me and he did." Petitioner testified that she has not used any type of illegal drugs for 20 years. Her sister operates four group homes for children with disabilities. Petitioner worked at one of the homes, and her sister wrote her a letter of support in this case. The evidence was undisputed that she received "excellent" evaluations while at Martin Group Home. Currently, she lives with her daughter, and a granddaughter who is two years old. As a result of one of Petitioner's various felony convictions, she testified that she was ordered to attend in- house drug treatment at the Willingway Hospital in Statesboro, Georgia. Upon questioning by the undersigned, Petitioner stated that she was in rehabilitation at the hospital for "like 6 months" back in the 1990's.2/ The various letters of support and reference provided by Petitioner came from her relatives. These included her sister and father. The record reflects that Petitioner attended and successfully completed numerous training courses (e.g. medicine administration, CPR training, blood borne pathogens, HIV safeguards, etc.) that related to the caretaker work she performs.3/ Other than two certificates for domestic violence training in 2011 and 2012, the other training and educational completion certificates did not relate to treatment or counseling programs related to her drug use, alcohol use, psychological counseling, or financial training-–the personal issues she struggled with in her past when the disqualifying events took place. The evidence reflected that she had numerous and chronic driving violations, pertaining primarily to failing to pay road tolls. She claimed that all of these toll violations occurred when her daughter was driving her car.4/ On cross-examination, Petitioner conceded that she failed to provide a detailed version of the facts or a full explanation for each criminal offense listed on her exemption form.5/ Petitioner claimed that she was "new at this" and did not understand the details she was supposed to provide. For the criminal offenses involving theft of property, she claimed on the form, and testified, that there was "no harm" to the victim. Again, she claimed some confusion and stated that she thought that they were talking about harm in the "violent" sense. She was also cross-examined about the six-month drug treatment program that she testified she had attended at Willingway Hospital. She was asked why she did not provide that information to the Agency in the exemption form or provide the agency with a copy of a completion certificate. Inexplicably, she was unable to provide a satisfactory explanation during the hearing for why she did not disclose the drug treatment program on the exemption questionnaire. She claimed that since the court had ordered her into treatment, she did not think it was necessary to specifically list or describe it. She was asked why she was not able to provide a letter of recommendation from her church pastor. She did not provide an adequate explanation and simply stated that she attends church but is not a church member, that she just goes to church there every Sunday. She worked briefly at a company called Best Walks of Life. Her supervisor was her son, Mr. Walker. No details were provided concerning what she did there. She acknowledged that much of her criminal activity arose from or was related to problems with monetary or financial issues; yet, she conceded that she had not taken any financial courses or other classes to obtain financial or budgeting training or counseling. After working for her sister at Martin Group Home, she has not made any attempts to work in any other places or group homes since leaving. Darnisha Johnson Petitioner is her mother. The witness is 24 years old and lives with her daughter at her mother's house. She testified that her mother is "a great person today. She's great." She also stated that her mother is a "much better person" then when she was involved in criminal activity.6/ She also felt that her mother is not using any drugs now. She acknowledged that she has a car, but that it is in her mother's name. In the context of who pays the bills today and supports her financially, she characterized her mother's role as being her "support system." She also admitted that any failures to pay tolls while driving the vehicle registered in her mother's name were her responsibility. Molita Cunningham She is a friend of Petitioner's. She works as a certified nursing assistant and is certified as such with the State of Florida. She has known Petitioner for a little over three years and met her at a Family Dollar store. She wrote a letter of support for Petitioner. She was not aware of any facts to suggest that Petitioner was engaged in criminal activity, drug abuse, or abuse of her clients in any manner. She acknowledged she had a background similar to Petitioner's. She was "out there in the streets" and is a convicted felon. Other than being a general character witness, the witness offered no substantive evidence touching upon Petitioner's rehabilitation from the disqualifying offenses. Evelyn Alvarez Ms. Alvarez is employed with the Agency as the regional operations manager for the Southern Region.7/ She obtained a master's degree in public administration from Florida International University in 2000. APD serves individuals that have specific developmental disabilities. The disabilities include intellectual disabilities, autism, cerebral palsy, spina bifida, and the like. Her role in this case was to review the background information gathered by both the Department of Children and Families and APD on Petitioner. After her review, the package of information was sent to an exemption committee. That committee then independently reviewed the exemption package and made its own recommendation to the Director of APD. Before deciding on the exemption request, the Director reviewed both Ms. Alvarez's recommendation and the recommendation of the exemption committee. She correctly acknowledged that the applicant for an exemption from disqualification must prove rehabilitation by clear and convincing evidence. She also correctly noted that the Agency should consider the circumstances of the disqualifying offense(s), the nature of the harm caused to any victims involved, the history of the employee since the incident and any other evidence indicating that the employee will not present a danger to the vulnerable or disabled adults or children they serve. APD was concerned that Petitioner failed to follow directions and provide the details for each disqualifying criminal event.8/ Also, Ms. Alvarez was concerned that Petitioner's failure to acknowledge that someone was "harmed" by the theft or forgery crimes ignores that there were victims involved, and the response fails to show an acceptance of responsibility for the crime(s). Ms. Alvarez testified that the Agency has no idea what happened with each of the disqualifying events, or of any circumstances that were happening at the time that would allow APD to understand why Petitioner would commit the offenses, and that there was no acknowledgment of any harm to any victims. In the opinion of Ms. Alvarez, the training certificates provided by Petitioner were not persuasive evidence of rehabilitation. More specifically, they were only indicative of employment training and did not include anything in terms of addressing Petitioner's substance abuse issues, her inability to manage her finances, or her involvement in acts of domestic violence. In APD's opinion, the lack of any treatment or professional counseling for those issues militated against a finding of rehabilitation. Likewise, Petitioner did not describe her alleged six- month, in-house drug rehabilitation program in the exemption application, nor was there any certificate of completion of drug treatment provided. APD concluded that Petitioner used poor judgment during an incident when she invited her friend, Ms. Cunningham, to spend a day on the job at Martin Group Home with Petitioner's disabled and vulnerable children. APD felt that this was a breach of client confidentiality, HIPAA rights, and may have put some of the children at risk around a visitor who did not have a background check or clearance to be at the facility. There were no professional references or letters of support offered by Petitioner from past employers (other than from group homes involving her relative). Likewise, there were no letters attesting to her good moral character from her church or other faith-based relationships she may have established. Ms. Alvarez testified that the reason the Agency wants letters of reference from individuals who do not have a conflict of interest is to show her character. Examples of letters of reference would be from a pastor or from an organization where someone had volunteered. The letters provided by Petitioner, while useful, did not reflect an impartial view of her character.9/ The Agency determined that it had no basis of reference for the character of Petitioner due to her failure to provide more impartial references.10/ In Ms. Alvarez's opinion, after reviewing the completed application, Petitioner had not provided any evidence, and APD had no knowledge, to support a finding of rehabilitation. Furthermore, APD did not have any knowledge of any financial planning or budgeting courses that Petitioner may have taken to show rehabilitation in the area of her finances. APD considered it significant during its review that Petitioner had been charged with driving while license suspended ("DWLS") (a criminal traffic offense) in 2012 and again in 2013, less than two years before the application. (Both DWLS offenses were subsequently dismissed.) Respondent's Exhibit 9, Petitioner's Florida Comprehensive Case Information System driving record, reflects in excess of 20 failures to pay required highway tolls in a two-year period from 2012 to 2013.11/ Petitioner did not provide any explanation for her driver's license problems to the Agency at the time of her Exemption Application. The Agency had no knowledge of the facts and circumstances surrounding the DWLS citations. Ms. Alvarez testified that traffic offenses and driving habits are important considerations, since direct service providers are often required to transport persons with developmental disabilities In essence, APD concluded that Petitioner had fallen short of her burden of showing rehabilitation by clear and convincing evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Persons with Disabilities confirm its previous intended denial and enter a final order denying Petitioner's application for an exemption from disqualification. DONE AND ENTERED this 27th day of July, 2016, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of July, 2016.
The Issue Whether Petitioner is entitled to receive an exemption from disqualification to work in positions of special trust.
Findings Of Fact In November 1999, Petitioner was employed by Angels Unaware, Inc., as a caretaker of children or the developmentally disabled. Such a position is a position of trust. By letter dated November 29, 1999, Angels Unaware, Inc., notified Petitioner that it had received information that was disqualifying and, thus, he was ineligible for continued employment as a caretaker of children, disabled adults, or elderly persons. However, in the letter, Petitioner was advised of his right to seek an exemption from disqualification from the licensing agency. Thereafter, Petitioner requested an exemption from disqualification. At all times, pertinent to this proceeding, Respondent was the state agency responsible for receiving and approving or denying applications for exemptions from disqualification to work in a position of trust. After receiving Petitioner's request for exemption, Respondent conducted the required background screening of Petitioner. The background screening revealed that Petitioner had been arrested and convicted of possession and delivery of cocaine. As a result of Petitioner's conviction, Respondent denied Petitioner's request for exemption. According to the background screening report, Petitioner was convicted of possession and delivery of cocaine on April 2, 1996. The incident that resulted in the conviction occurred on or about January 20, 1995, the day Petitioner was arrested. Following his arrest, Petitioner was charged with possession and delivery of cocaine. On May 1, 1995, Petitioner pled guilty to the aforementioned felony. That same day, the court withheld adjudication and placed Petitioner on probation for one year. Pursuant to condition 7 of Petitioner's probation, he was not to use or possess any drugs or narcotics unless prescribed by a physician. Notwithstanding this proscription, on or about September 24, 1995, November 14, 1995, and March 3, 1996, Petitioner violated this condition by using cocaine as evidenced by positive urinalysis and his own admission. As a result of Petitioner's repeated use of cocaine, on April 2, 1996, Petitioner was convicted of violating his probation and was adjudged guilty of possession and delivery of cocaine, the charges for which adjudication had been initially withheld on May 1, 1995. Moreover, Petitioner's one-year probation was revoked and he was placed on drug offender probation for two years. One of the special conditions of the drug offender probation was that Petitioner receive drug treatment until he successfully completed such program. On or about May 15, 1997, Petitioner again used and possessed cocaine in violation of the Order of Drug Offender Probation. Following this violation, on July 17, 1997, the court entered an Order of Modification of Probation. Pursuant to that Order, Petitioner's probation continued under the previous terms and conditions but Petitioner's cost for supervision was waived while he was receiving in-patient drug treatment. Petitioner entered a six-month in-patient drug treatment program in June 1997 and successfully completed the program on December 22, 1997. The court terminated Petitioner's probation on April 1, 1998. At the hearing, Petitioner acknowledged that his using cocaine was a "mistake" and stated that he has been drug-free since June 1997, when he began the six-month drug treatment program. However, Petitioner presented no other witnesses or evidence of his rehabilitation during the two years since his probation was terminated.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Children and Family Services enter a final order denying Petitioner's application for an exemption from his disqualification from employment in positions of trust or responsibility. DONE AND ENTERED this 18th day of July, 2000, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (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 18th day of July, 2000. COPIES FURNISHED: Raymond R. Deckert, Esquire Department of Children and Family Services 4000 West Dr. Martin Luther King, Jr. Boulevard, Room 500 Tampa, Florida 33614 Nwezi A. Nonyelu 6545 Spanish Moss Circle Tampa, Florida 33625 Virginia Daire, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Josie Tomayo, Esquire Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Employment Complaint of Discrimination filed by Petitioner on February 20, 2008.
Findings Of Fact Petitioner is an African-American female who was hired by Respondent on August 2, 2004, as the Program Director of Respondent’s Substance Abuse Treatment Program located at Lancaster Correctional Institution (LCI) in Trenton, Florida. Respondent, Civigenics Community Education Centers (Civigenics), is an employer within the meaning of the Florida Civil Rights Act. Civigenics is a provider of offender in- prison treatment services. Under contracts with the Florida Department of Corrections (DOC), Respondent provides substance abuse programs designed to reduce recidivism of inmates. DOC has contracts with various providers throughout Florida to provide such substance abuse services in its correctional facilities. At the time Petitioner was hired by Respondent as the Program Director at LCI, that program was one of 11 of Respondent’s programs under contract with DOC. These 11 programs were under the direction of Michael Walker, State Director for Respondent. Respondent provides treatment services under two types of programs: Modality 1 and Modality 2. Modality 1 is an intensive outpatient program for inmates. Inmates in a Modality 1 program are involved with the program for half a day, then have a work assignment the other half of the day. A modality 2 program is a residential program in which the inmates are involved in the program all day long, six-to-seven days a week. Of Respondent’s 11 programs, only two are Modality 2 programs. One of the Modality 2 programs is at Gainesville Correctional Institution (GCI). At the time Petitioner was employed by Respondent as Program Director of the program at LCI, the program was a Modality I program. Dan Eberline is a correctional program administrator for DOC. Mr. Eberline’s responsibilities include contract management, oversight, auditing and follow-up as the liaison between DOC and Respondent. Mr. Eberline has been employed with DOC for 20 years and worked with Petitioner since 2001, when she was clinical director for a Modality 2 program at another private company. Under Respondent’s contract with DOC, Mr. Eberline must approve of the hiring of all Program Directors. He interviewed Petitioner and a white male for the LCI position, and approved of Petitioner’s hiring in 2004. When hired, she replaced a white male as the Program Director at LCI. Petitioner was already in the Program Director position when Mr. Walker became State Director of Respondent in 2005. Of the 11 Program Directors, six were women of which three were African-American women. Two of the African-American women were hired by Mr. Walker. Petitioner holds a bachelor’s degree from the University of Florida in sociology, and a Master of Arts in Addictive Disorders from the Breining Institute, which is a distance-learning program under the Florida Certification Board. She is a Certified Addictions Professional from the Certification Board for Addiction Professionals of Florida and is a member of the Addiction Advisory Board. At any given time, approximately 70 inmates were enrolled in the program at LCI. The inmates at LCI were youthful offenders, ranging from 18-to-24 years old. As Program Director at LCI, Petitioner supervised a staff of three counselors and an administrative assistant. As Program Director, Petitioner was responsible for ensuring that her staff was properly trained in group therapy, individual therapy, and for making psychosocial assessments of the inmates under their care. She was also responsible for ensuring the accuracy of the database and of certain reports that the program provided to DOC. During the time period in question, there were two contracts between Respondent and DOC. The first contract was in effect from October 2001 through October 2006. The second contract became effective October 2006, with an ending date of September 30, 2011. Beginning in the year 2000, DOC standardized all of Respondent’s programs as to the performance measures used, the maintenance of files, reports, and training. According to Mr. Eberline, his fundamental role was to monitor the contract and then to compare the contract with the delivery of services. To measure the effectiveness of Respondent’s Modality and Modality 2 programs, Mr. Eberline conducted audits of each program’s files and reports. He monitored each program in routine and special site visits, and in a comprehensive annual audit, to ensure that each program was meeting contract standards. Mr. Eberline would, in turn, provide reports of those audits to his supervisor, Kim Riley. The reports are provided to the Florida Legislature for purposes of receiving funding. The most critical standard each program must meet is a successful completion rate for inmates who participate in Respondent’s programs. This standard of measure is used by DOC to determine the effectiveness of treatment. In the second contract (beginning October 2006), the successful completion rate was specified at 80 percent for Modality 1 programs and 60 percent for Modality 2 programs. The first contract (ending October 2006) did not specify a completion rate of 80 percent. However, the preponderance of the evidence established that while not codified in the earlier contract, there was nonetheless an expectation that each Modality 1 program, such as at LCI, would meet an 80 percent successful completion rate standard. An 80 percent successful completion rate was considered standard in the industry, discussed at staff meetings, was part of a program director’s training, and referenced in Mr. Eberline’s program reports. The completion rate standard measures the number of inmates enrolled in a Modality 1 program who completed the program after a recommendation from the clinical staff. These inmates were discharged or coded as having completed the treatment program. Not all inmates, however, complete the program for a number of reasons. For example, an inmate may be unable to participate in and have to withdraw from the program because he must go to court, for a medical or mental health reason, or because the inmate must go into protective confinement. Additionally, an inmate may receive a Disciplinary Report (DR) from prison staff and be discharged from the program for behavior that is not considered “related to the program.” That is, the DR is for behavior that the treatment program is not designed to impact. The inmate is considered to be administratively discharged (coded ADM) if the program director determines the behavior can be further addressed through the program. Conversely, an inmate may receive a DR for behavior that is considered program related (e.g., behavior that the treatment program is designed to impact) such as a positive drug screen, a threat of violence, or one of the other “cardinal” rule violations. Also, an inmate may be unsuccessfully discharged for other behaviors considered “major” rule violations such as sexually acting out, assault, fighting, threats of violence, or breaking confidentiality of inmates. The inmate would receive an unsuccessful discharge from the program (coded UNS) because the program has not been successful in impacting the inmate’s behavior. DOC electronically maintains information regarding DRs issued to inmates on the Offender Based Information System (OBIS). The Program Director for each program reviews the information on OBIS, in a read-only format, about an inmate’s DRs which states the nature of the DR, and what type of behavior or conduct was involved. The Program Director can read the DR as well as the narrative of the DOC employee who issued the DR, to find out what actually occurred. The determination as to whether a disciplinary infraction which results in an inmate’s dismissal from the program is or is not related to the program and properly coded as an ADM or UNS discharge, is the responsibility of the Program Director. It is also the Program Director’s responsibility to ensure that the reports used to calculate the completion and discharge rate for inmates enrolled in the program are correct. While the data reflecting the coding determination might be entered by support personnel, only the Program Director can make the coding determination because of his or her training and certification. According to Mr. Eberline, it would be unethical to leave such a determination to a person who is neither qualified nor licensed to make that decision. Every month, a report which lists those inmates who have successfully completed the program, and those inmates who received an ADM discharge or a UNS discharge, is submitted to DOC. This report, called a “PPC41” is used to calculate the completion rate. The Program Director must sign off on the PPC41 before it is sent to Mr. Walker, and in turn to Mr. Eberline. It is the Program Director’s responsibility to ensure that the document is sent and that the information contained in the PPC41 is accurate. At hearing, Petitioner testified that her administrative assistant was the person who made the coding determinations, and entered them into the computer system. Petitioner signed off on these reports, but did not make an independent review of their content. She simply verified that they were being sent to Mr. Walker and Mr. Eberline. Prior to the hearing, Mr. Walker and Mr. Eberline were not aware that Petitioner was allowing clerical staff to determine the codes on the PPC41s. Both Mr. Walker and Mr. Eberline expressed concern and disapproval that Petitioner did not review the PPC41s for content and that the coding was done by her assistant. Since this information was revealed to them during the hearing, it could not have been the basis for the employment actions taken by Respondent. It may, however, explain some of the errors which will be discussed. Under the formula utilized by Respondent and DOC to measure the completion rate, the number of inmates who successfully complete the program are first identified. From that number, the number of inmates who are coded as ADM (administrative discharge) are factored out or subtracted. That number is then compared to the number of inmates who are coded as UNS (unsuccessful discharge). These two numbers are then compared to the number of inmates who have successfully completed the program. The administrative discharges do not impair or lower a program’s completion rate. The more discharges that are coded as ADMs, the higher the program’s completion rate. For that reason, if an inmate’s discharge is improperly or incorrectly coded as an ADM rather than UNS, an incorrect completion rate will result. The Program Director submits the monthly PPC41s to DOC throughout the course of the fiscal year. These monthly reports provide a monthly snapshot as to whether or not a program is meeting the contractual standard. The monthly report may identify the need to intensify services or change the format by which the program is providing treatment to inmates to better impact their behavior. Consequently, the completion rate may vary from month to month, with a final completion rate calculated at the end of each fiscal year. At the end of each fiscal year, DOC tabulates all of the discharge information reflected in each program’s PPC41s, audits the discharge codes, and calculates a final completion rate for all programs. These calculations are made in Tallahassee without involvement of Mr. Walker or Mr. Eberline, and without any knowledge of the identity of the particular program director at any particular facility. In April 2005, an annual comprehensive audit of the program at LCI was conducted by Mr. Eberline. LCI’s completion rate was determined to be 54.4 percent. Mr. Eberline’s monitoring report noted, “This is a low completion rate when compared to similar Modality I programs. The youthful offender inmates are a difficult population to work with, however, a formal plan to increase the completion rate is encouraged.” LCI was issued its first Corrective Action Plan (CAP) to address several items. On June 14, 2005, Mr. Eberline determined that all elements of the CAP were met. In April 2006, Mr. Eberline conducted the annual comprehensive audit of the program at LCI. The audit revealed that the completion rate for the program had gone down from 54.4 percent to 52 percent. While no CAP was required, Mr. Eberline’s report included the following: “The past twelve month program completion rate is 52 percent adjusted for administrative discharges as compared to 54.4 percent last year. It is recommended that an internal institutional review be initiated to provide suggestions on how to improve this program completion rate.” In response to these comments, Mr. Walker convened an institutional review of this situation. He brought together security, classification, administrative staff, Petitioner and himself in an effort to determine how Respondent could more positively impact the completion rate in the program at LCI. In December 2006, Mr. Eberline conducted a routine follow-up visit to LCI. His report of the visit notes that the Warden was concerned with the program completion rate of 48 percent for fiscal year 2005-2006.2/ His report also noted that because there were deficiencies in basic file format, additional training was required to ensure that “staff is following acceptable file format.” As a result of those comments, Mr. Walker discussed with Petitioner file format and the proper order of documents in the files. Mr. Eberline conducted a routine site visit at LCI in February 2007. He was concerned that LCI’s completion rate had dramatically increased from 48 percent to over 80 percent in just five months. Mr. Eberline, Mr. Walker, and the Assistant Warden were all concerned with this sudden dramatic increase in completion rates. Mr. Eberline suspected that the ADM coding might have been overused resulting in a manipulation of the code so as to artificially increase the completion rate of the program. Using the OBIS system, Mr. Eberline, Mr. Walker, and Petitioner reviewed and analyzed the coding determinations for those files, in excess of 40, in which a clinical decision had to have been made. Once the discharge codes were re-evaluated, the completion rate dropped to 60 percent. It was at this time that Mr. Eberline brought up concerns to Mr. Walker about Petitioner’s performance in regard to program completion rates, and the need for a change in leadership. Mr. Eberline was being questioned by his supervisor at DOC about steps he was taking to address the low completion rate at LCI. In turn, Mr. Walker was hearing these same questions and concerns from Mr. Eberline. At Mr. Eberline’s request, Mr. Walker wrote a second CAP which was put in place on February 20, 2007. This CAP was directed at Petitioner and concerned “client discharges being inappropriately coded as ADM 83.” Mr. Eberline conducted a follow-up review on May 21, 2007. His report concluded that training had been completed with staff and, as a result, the assignment of proper discharge codes was being used and reported. His report notes that the completion rates would continue to be monitored. On the same date, Mr. Eberline conducted a comprehensive, annual audit of Lancaster. The annual audit covered nine months from July 1, 2006, through April 14, 2007. Annual audits did not necessarily coincide with the fiscal year (July 1 through June 30). During this audit, it was determined that the completion rate at LCI was 67.4 percent at that point in the fiscal year. The completion rate for fiscal year 2006- 2007 for LCI was calculated by DOC to be 65.2 percent. At that point, the 80 percent standard had been codified in the contract between Respondent and DOC. Mr. Eberline recommended in his audit report that “continued effort be focused on improving the completion rate up to and exceeding the performance measure specified in the contract.” In April 2007, Civigenics was bought by Community Education Centers. On May 4, 2007, a meeting was held by Mr. Eberline and Mr. Walker of all Program Directors, including Petitioner. At this meeting, Mr. Eberline discussed data entry concerns and completion rates. Mr. Eberline expressed his increasing concern about the overuse of administrative discharge codes. He also informed Mr. Walker that the contract was in jeopardy because of the low completion rate. In July 2007, Mr. Walker believed that the program at LCI would not reach the contractual standard of 80 percent. He felt that 70 percent was “reachable.” He approached Mr. Eberline, who informed him that the matter would have to be addressed to Kim Riley, Chief of the Bureau of Substance Abuse Programs at DOC. Mr. Walker then wrote a letter to Ms. Riley, requesting an adjustment in the contract performance measure for LCI to be reduced from 80 percent to 70 percent. The letter stated in part: This program provides services to a male Youthful Offender population which has a high degree of need for confinement for the safety and security of the institution. We wish to request an adjustment of 10% which would then require that we maintain a program completion rate of at least 70% within this program servicing this special population. Mr. Walker had never made a similar request for any of the other programs under his supervision. Petitioner was aware of Mr. Walker’s request to lower the standard. On July 16, 2007, a special meeting was convened at LCI to discuss continuing concerns about the program’s completion rate. The meeting was attended by the prison warden and other prison administrators, Mr. Walker, Mr. Eberline, Petitioner and one of her staff. Mr. Eberline made it clear that since the completion rate was directly tied to legislative funding, the program at LCI was in jeopardy of being shut down. Following the special meeting, Mr. Eberline wrote a report which read in pertinent part: The special needs of the youthful offender inmate being served by the substance abuse modality I program were discussed. Disciplinary action resulting from inmate behavior issues was determined to be the primary reason for an inmate’s unsuccessful discharge. The inmate’s resistance to treatment was also a contributing factor. The number of low ranking mandatory inmates available for enrollment was discussed and will be reviewed for remedy. All were in agreement that little could be done to impact the institution’s disciplinary system dealing with enrolled inmate’s behavior issues. It is recommended that the program director and staff review options on how to impact program participant’s behavior through a more intensive treatment regiment. The program is requested to review and restructure the readiness group service delivery to identify motivated inmates for program enrollment. A (CAP) Corrective Action Plan will be required to address these concerns and recommendations. The CAP shall be submitted on or before August 13, 2007. Mr. Walker sent an e-mail to Petitioner instructing her as follows: “In addition to your regular end of the month PPC 41 report, please order an additional PPC 41 report which covers your program components from July 1, 2006 through June 30, 2007. Ensure that all data is accurate. " In response, Petitioner created a chart in which she calculated the completion rate to be 84.10 percent for July 2006 to June 2007. This conflicts with the completion rate calculated by DOC which shows a 65.2 percent for the same time period. The preponderance of the evidence indicates that Petitioner’s calculation of a completion rate of 84.10 percent is inaccurate. The completion rates for the program at LCI as calculated by DOC were 47.7 percent for 2005-2006 and 65.2 percent for 2006-2007. Mr. Walker began receiving criticism from Mr. Eberline and Mr. Walker’s supervisor, Ms. Worthington, about the low completion rate at LCI. He was told that if he was not able to increase the completion rate at LCI, that they, DOC, would find someone who would. In early September 2007, Mr. Eberline conducted a routine visit to LCI and again found miscoding errors. Mr. Walker verbally informed Petitioner that staff performance ratings would be reviewed and would be associated with meeting the 70 percent completion rate as specified in the contract and that, should this standard not be met, staff would be placed on probationary status and additional corrective actions taken. This admonition was contained in writing in the CAP that Mr. Walker prepared in early September. At some point between early September and early October, Mr. Eberline recommended to Mr. Walker that Petitioner be removed as Program Director because of the program’s consistent lack of meeting the performance standards, the need for multiple CAPs, and miscoding issues. Mr. Walker discussed this with his supervisor, Ms. Worthington. He recommended that Petitioner not be terminated. There were two open counselor positions, one of which was located in Gainesville. Mr. Walker offered Petitioner a demotion to a counselor position and made an effort to keep her salary as high as possible. Mr. Walker had to get approval from Mr. Eberline for this transfer; Mr. Eberline reluctantly approved the transfer. Ms. Worthington agreed with Mr. Walker’s recommendation. On October 4, 2007, Petitioner was removed as Program Director and replaced by Vernon Burgess, a white male, who was at that time the Program Director at GCI. The program at LCI was still under the CAP, which was ultimately successfully completed in November 2007. On November 19, 2007, the program at LCI was closed. When the program at LCI closed, Mr. Burgess resumed his former position as Program Director at GCI. All of the other employees in the program at LCI were laid off. On December 18, 2007, Petitioner wrote a letter to Mr. Walker requesting a written explanation regarding her demotion. Petitioner wrote that she had not been given an opportunity to address the adverse actions taken against her. Her letter did not raise any allegation of discrimination on the basis of race or gender. Mr. Walker met with Petitioner in December 2007. Mr. Walker informed her that if she had an issue with her demotion, that there was a grievance procedure she could pursue if she felt she needed to do so. Petitioner did not file a grievance with Respondent. Petitioner filed a Charge of Employment Discrimination with FCHR which gave rise to this proceeding. The Gainesville Program Respondent operates a Modality 2 program at Gainesville Correctional Institution (GCI). In 2006, an audit was conducted at GCI by Mr. Eberline at about the same time he conducted the annual comprehensive audit at LCI. The program at GCI had declined from the prior year’s completion rate of 71 percent to 51 percent. The performance standard for a Modality program was 60 percent, in contrast to the higher standard for Modality 1 programs. As a result of this drop in completion rates, a special meeting took place including Mr. Eberline, Mr. Walker, Mr. Burgess, the Program Director at GCI, and the prison administration. This special meeting was similar to the special meeting held at LCI to address improving completion rates. Unlike Modality 1 programs, there are no administrative discharge codes in a Modality 2 program. Thus, there was no issue relating to overuse of the ADM code, but there was a completion rate issue. The meeting focused on taking immediate steps to improve the completion rate, focusing on inmates at risk for obtaining disciplinary reports. By the time the meeting was held, the completion rate had begun to improve. Mr. Walker instituted a CAP for the GCI program although Mr. Eberline did not require one. The completion rate for GCI improved in approximately a three-month period. According to DOC’s calculation, GCI had a completion rate of 79.1 percent for fiscal year 2006-2007. This exceeded the contract standard of 60 percent. All of Respondent’s Program Directors have the same access to the OBIS system, must meet the same reporting standards, receive the same training, and must meet contractual standards set forth in the contract between DOC and Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 26th day of January, 2010, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of January, 2010.
