The Issue On April 17, 2015, Respondent, Department of Health, issued a Notice of Agency Action Denial of License Renewal ("First Denial Notice"), notifying Petitioner, Alicia Chilito, M.D., that it had denied her application for renewal of her physician license. Thereafter, on May 19, 2015, Respondent issued an Amended Notice of Agency Action Denial of License Renewal ("Second Denial Notice"), reiterating, and stating alternative grounds for, its denial of Petitioner's physician license. Petitioner timely challenged Respondent's decision and the matter was referred to DOAH to conduct a hearing pursuant to sections 120.569 and 120.57(1). The final hearing initially was scheduled for August 14, 2015, but pursuant to motions, was set for December 16, 2015. On August 14, 2015, Respondent filed a Motion to Relinquish Jurisdiction, contending that there were no disputed issues of material fact to be resolved in a hearing conducted under section 120.57(1). This motion was denied by order issued on September 1, 2015, on the basis that disputed issues of material fact existed regarding whether Petitioner was entitled to renewal of her license by default pursuant to section 120.60(1). On December 11, 2015, Respondent filed Department of Health's Motion in Limine, seeking to limit the scope of the final hearing. A telephonic motion hearing was conducted on December 15, 2015, the day before the final hearing. The undersigned granted the motion and excluded evidence that may be offered at the final hearing to challenge the underlying factual basis on which the Termination Final Order was entered. The final hearing was held on December 16, 2015. Joint Exhibits 1 through 4 were admitted into evidence. Petitioner did not present any witnesses. Petitioner's Exhibits 1 through 10 were tendered but not admitted, and were proffered for inclusion in the record. Respondent presented the testimony of Heidi Nitty. Respondent's Exhibit 1 was admitted into evidence without objection and Respondent's Exhibits 5 and 6 were admitted over objection. Official recognition was taken of the Final Order issued by the Agency for Health Care Administration ("AHCA") in the case of Agency for Health Care Administration v. Alicia Chilito, M.D., Case No. 12-571PH (AHCA November 4, 2013) and the Order Granting Motion to Relinquish Jurisdiction in the case of Agency for Health Care Administration v. Alicia Chilito, M.D., Case No. 12-0859MPI (Fla. DOAH July 12, 2012). The one-volume Transcript was filed on January 8, 2016, and the parties were given until January 19, 2016, to file proposed recommended orders. The parties timely filed proposed recommended orders, which were duly considered in preparing this Recommended Order.
Findings Of Fact Petitioner, Alicia Chilito, M.D., is a physician licensed to practice medicine in Florida pursuant to License No. ME 74131. Respondent, Department of Health, is the state agency charged with regulating the practice of medicine, including licensing physicians pursuant to chapters 456 and 458, Florida Statutes (2015). Petitioner timely filed a Renewal Notice, which constituted her application to renew her physician license.1/ Respondent received Petitioner's Application on January 5, 2015. Respondent did not, within 30 days of receipt of her application, request Petitioner to provide any additional information that it was permitted by law to require, nor did it notify her of any apparent errors or omissions in her application. Accordingly, Petitioner's application was complete on January 5, 2015, by operation of section 120.60(1), for purposes of commencing the 90-day period for Respondent to approve or deny her application.2/ The 90-day period from Respondent's receipt of Petitioner's complete application expired on or about April 6, 2015.3/ Heidi Nitty, a government analyst I with Respondent, was involved in the review of Petitioner's application. Her specific role in the application review process was "reviewing court documents and other orders for possible denial of renewal and also recording [Respondent's] final orders in the national practitioner database." In the course of Nitty's review, she determined that Petitioner previously had been terminated from the Florida Medicaid program. Accordingly, she entered a "do-not-renew modifier" to Petitioner's license application file in Respondent's computer system. On January 20, 2015, Petitioner called Respondent to inquire about the status of her application. She was referred to Ms. Nitty, who was not available to speak to her at that time. Petitioner and Nitty exchanged calls over the course of that day, but did not speak to each other until January 21, 2015, when Petitioner again called, and that time, reached, Nitty. At that point, Nitty verbally informed Petitioner that her application "was being denied" due to having previously been terminated from the Florida Medicaid program. On April 17, 2015——some 102 days after Petitioner filed her complete application——Respondent issued its First Denial Notice, notifying Petitioner that it was denying her application. The First Denial Notice stated that Petitioner's license renewal was being denied pursuant to section 456.0635(2)(e) because she was listed on the United States Department of Health and Human Services Office of Inspector General's List of Excluded Individuals and Entities.4/ On May 19, 2015——some 134 days after Petitioner filed her complete application——Respondent issued its Second Denial Notice, again stating its intent to deny Petitioner's application. However, the Second Denial Notice stated that Petitioner's license renewal was being denied pursuant to section 456.0635(3)(c) because she had been terminated for cause from the Florida Medicaid Program pursuant to section 409.913, Florida Statutes, as reflected in the Termination Final Order issued by AHCA on March 6, 2014. The stated basis for AHCA's March 6, 2014, Termination Final Order was that Petitioner previously had been terminated from the federal Medicare program and the Florida Medicaid program. The Termination Final Order is a final order issued by AHCA, who is not a party to this proceeding. Petitioner disputes the underlying factual basis for AHCA's Termination Final Order and claims that, in any event, she did not receive the notice, issued on January 17, 2014, that AHCA was proposing to terminate her from the Florida Medicaid program; thus, she did not challenge the proposed termination. Although Petitioner has raised these challenges to the Termination Final Order in her Petition for Hearing Involving Disputed Issues of Material Fact filed in this proceeding, the undersigned is not authorized to "reopen" AHCA's Termination Final Order and revisit its factual and legal underpinnings5/ so declined to take evidence on those issues at the final hearing in this proceeding.6/ Petitioner asserts that because Respondent's First Denial Notice and Second Denial Notice both were issued more than 90 days after Respondent received her complete application, she is entitled to licensure by default under section 120.60(1). Respondent counters that the 90-day period for approving or denying Petitioner's license commenced on February 4, 2015, so its First Denial Notice was timely issued. Respondent further asserts that, in any event, Nitty's statement to Petitioner during their January 21, 2015, telephone discussion satisfied the "90-day approval or denial requirement" in section 120.60(1), so that Petitioner is not entitled to issuance of a renewed license by default. It is undisputed that AHCA did not issue the written notices of its decision to deny Petitioner's license renewal until well after April 6, 2015. Therefore, unless Nitty's statement to Petitioner on their January 21, 2015, telephone call constituted Respondent's denial of Petitioner's application within 90 days after its receipt, Petitioner is entitled to issuance of her license by default, pursuant to section 120.60(1). The evidence establishes that when Nitty told Petitioner on January 21, 2015——notably, in response to communication that Petitioner initiated——that her license "was being denied," Respondent had not yet made its final decision to deny her application, so had not yet "approved or denied" Petitioner's license. Nitty's role in the application review process was limited to determining whether Petitioner previously had been terminated from the Florida Medicaid program, and, if so, to draft a denial letter for review and approval by her superiors. That is precisely what she did. Based on her confirmation that Petitioner had previously been terminated from the Florida Medicaid program, Nitty drafted a denial letter, which was then sent up Respondent's "chain of command" for approval or rejection, and, ultimately, for signature by Respondent's Deputy Secretary for Administration. The "chain of command" included her immediate supervisor, the bureau chief, the division director, and legal counsel——any and all of whom had the authority to reject her recommendation. To that point, Nitty acknowledged that the denial letter she drafted had "some rewrite issues" and that her supervisor, had, in fact, rewritten the letter. Nitty was not the person authorized by Respondent to make its final, binding decision to approve or deny Petitioner's application, and she did not know who actually made the ultimate decision to deny Petitioner's license renewal. Thus, at bottom, when Nitty told Petitioner that her license "was being denied," she was only conveying her preliminary assessment, as application review staff, that Petitioner's application was being denied. Nitty's communication of her preliminary assessment could not, and did not, constitute Respondent's "approval or denial" of Petitioner's application.7/ Thus, Respondent did not approve or deny Petitioner's application within the 90-day approval/denial period. Accordingly, pursuant to section 120.60(1), Petitioner's application is "considered approved." There is no evidence showing that, as of the date of the final hearing, Petitioner had notified Respondent's agency clerk of her intent to rely on the default license provision in section 120.60(1).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order that: (1) acknowledges that Petitioner's application for renewal of License No. ME 74131 is considered approved pursuant to section 120.60(1), Florida Statutes, and (2) directs Respondent's agency clerk, upon Petitioner's notification to said agency clerk that complies with section 120.60(1), to issue Petitioner's license, which may include such reasonable conditions as Respondent is authorized by law to require. DONE AND ENTERED this 29th day of February, 2016, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 29th day of February, 2016.
The Issue The issue in this case is whether Petitioner is entitled to an award of attorney's fees and costs pursuant to Section 57.111, Florida Statutes, and Rule 22I-6.035, Florida Administrative Code.
Findings Of Fact Dr. Fenichel is a Florida licensed dentist having been issued license number DN-0008157. Dr. Fenichel maintains a professional dental practice in the State of Florida having a principal business address of 7544 Lake Worth Road in Lake Worth, Florida 33467. Dr. Fenichel maintains his primary residence within the State of Florida. Dr. Fenichel employs no more than twenty-five full-time employees and has never employed more than twenty-five full-time employees. Dr. Fenichel has a net worth of less than two million dollars, including both personal and business investments and has not had a net worth of more than two million dollars since the time the underlying action was initiated against his license to practice dentistry. Sometime in the late summer or early fall of 1989, F.P., 1/ a former patient of Dr. Fenichel, (hereinafter referred to as the "Patient") filed a written complaint regarding the care and treatment she had received from Dr. Fenichel. During the fall of 1988, Dr. Fenichel provided dental care to the Patient which included prophylaxis, an extraction, the recapping of crowns on teeth #'s 21, 22, 27 and 28 and a removable denture for teeth #'s 29, 30, 31 and 18, 19 and 20. DPR began an investigation of the Patient's complaint assigning it DPR Case Number 89-08779, notified Dr. Fenichel on or about September 27, 1989 of the complaint, conducted interviews with the Patient and Dr. Fenichel, obtained a written response, the Patient's records and x-rays from Dr. Fenichel, and obtained information and x-rays from a subsequent treating dentist in New Jersey, Dr. Lucca. The Probable Cause Panel of the Board of Dentistry met on at least three separate occasions pursuant to Section 455. 255, Florida Statues, to review DPR's investigative report and recommendations concerning the case. On March 15, 1990, the Probable Cause Panel met to consider the DPR investigative report and the recommendation from DPR of a finding of probable cause of a violation with a letter of guidance issued to Dr. Fenichel in connection with his treatment of F.P. The March 15, 1990 Probable Cause Panel made a determination that there was probable cause of a violation and, after discussion, directed DPR to file an Administrative Complaint against Dr. Fenichel's license to practice dentistry. The investigative report presented by the Department to the March 15, 1990 Probable Cause Panel included, among other things, summaries of interviews with Dr. Fenichel and with the complaining Patient, the Patient's written complaint, the written response of Dr. Fenichel, Dr. Fenichel's treatment/billing records and x-rays, a letter from Dr. Lucca, the subsequent treating dentist from New Jersey, outlining his clinical findings, x-rays and pictures apparently taken by Dr. Lucca and records of payments made by the Patient to Dr. Fenichel and to Dr. Lucca. Dr. Fenichel's billing records, his interview as reported by the Departmental investigator, his written response, and his treatment records all indicate that, from at least December 22, 1988 through February 23, 1989, the Patient was complaining about the work done by Dr. Fenichel, that Dr. Fenichel made several adjustments to the dentistry at no charge, and that the Patient's complaints were reflected in the observations and notes made by Dr. Lucca in March of 1989. In an entry dated January 17, 1989, Dr. Fenichel documented in his treatment records that the "patient maintains that partial is 'not right' she can't chew and is swallowing 'chunks'...". Dr. Fenichel also noted during this visit that he realigned the partial and adjusted the bite. During a February 23, 1989 visit, Dr. Fenichel noted that he again adjusted the partial. Dr. Lucca's records reflect that the Patient went to New Jersey on or about March 9, 1989 at which time he conducted an evaluation of her. Dr. Lucca had been the Patient's dentist when she was living in New Jersey. The Patient claims that this trip to New Jersey was necessitated by the pain she was experiencing from the work performed by Dr. Fenichel. Dr. Lucca advised the Patient of his clinical findings following the March 9, 1989 visit in a letter dated March 22, 1989 as follows: Porcelain to metal crowns on teeth #21, 22 and 27, 28 are ill-fitting, especially on facial margins. These are causing some gingival inflammation at present and may initiate caries at these margins in the future. The semi-precision removable partial denture framework fits well, but there is no occlusion of the posterior teeth on this partial denture. (posterior teeth do not meet.) Since you are uncomfortable and are complaining on the inability to chew, plus the above factors, I would suggest having the lower case redone. In addition to his clinical findings, Dr. Lucca advised the Patient that other dentists nearer to where she lived "...would certainly be able to help you so that you would not have to travel up here and have to stay several months." After seeing Dr. Lucca on March 9, 1992, the Patient was sent to another New Jersey dentist, Dr. Berger, who did a root canal on March 13 and 14, 1992. Dr. Fenichel's billing records reflect that the patient returned to his office on or about March 31, 1989, following her visit and evaluation with the New Jersey dentist and before the work was "redone." In her written complaint, the Patient alleged that during the March 31 visit she advised Dr. Fenichel of the New Jersey dentist's clinical findings. She claims that she requested Dr. Fenichel to pay for her treatment by Dr. Lucca, but Dr. Fenichel only offered to refund her money for the work performed by him. Ultimately, the Patient had Dr. Lucca redo the work done by Dr. Fenichel. It appears that Dr. Lucca also did some additional work on the Patient. Dr. Fenichel noted in his written response to the Patient's complaint that he had offered to refund her money for the work performed even though, in his opinion, there was nothing wrong with his work. No evidence was presented as to whether Dr. Fenichel ever refunded any money to the Patient. It is clear that the findings of the subsequent treating New Jersey dentist and the persistent complaints by the Patient were key factors in the Probable Cause Panel's decision to direct DPR to file an Administrative Complaint against Dr. Fenichel. At the March 5, 1990 Probable Cause meeting, the Panel and the DPR prosecuting attorney recognized that the credibility of the witnesses would be very important in order to establish at formal hearing that Dr. Fenichel was in violation of the rules and regulations of the Board of Dentistry. There was also a recognition that the work had been redone by Dr. Lucca and that it might be difficult and perhaps impossible to get an evaluation of Dr. Fenichel's work from a qualified expert who did not have a financial interest in the case. Following the March 15, 1990 Probable Cause Panel Meeting, DPR retained an expert, Dr. Rupert Q. Bliss, to evaluate the Departmental investigative report. Dr. Bliss noted several potential pitfalls to successful prosecution of Dr. Fenichel. Dr. Bliss expressed concern that no independent evaluation of Dr. Fenichel's work was possible since the work had been redone by Dr. Lucca. He suggested that complete records from Dr. Lucca and Dr. Berger would be necessary in order to successfully prosecute the case. Even though Dr. Bliss' editorial comments pointed out some of the potential problems to successfully prosecuting the case, he also noted some of the evidence that indicated Dr. Fenichel's work may not have met minimum standards. Dr. Bliss noted that Dr. Fenichel's patient records contained in the investigative report were inadequate and below minimum standards when measured against generally prevailing peer performance because there was no patient health history, no patient dental history, no tooth charting, no periodontal charting, and no treatment plan. In addition, Dr. Fenichel's treatment records were "very brief". Dr. Bliss reviewed two periapical x-rays of the Patient taken on or about March 13, 1989 and prior to the work performed by Dr. Lucca. Dr. Bliss was uncertain as to the origin of these x-rays. Dr. Bliss noted that the periapical x-rays dated March 13, 1989 showed two substandard crowned teeth with one tooth appearing "...to have the labial-gingival margin standing away from the tooth..." and the other appearing "...to have the distal interproximal crown margin short of the prepared tooth margin thus exposing a significant amount of cut tooth structure to the oral environment..." Dr. Bliss noted that these x- rays could establish a violation of the minimum standards for the practice of dentistry as measured against generally prevailing peer performance. The same x-rays and photos reviewed by Dr. Bliss were provided by the Department to the Probable Cause Panel for its March 15, 1990 meeting at a second meeting on September 14, 1990. In addition to Dr. Bliss' report and the investigative report discussed above, the September 14, 1990 Probable Cause Panel had before it for consideration yearly progress reports from the Patient's periodontist, Dr. Feldman, the billing record and x-rays from Dr. Berger, the New Jersey endodontist who performed the root canal on the Patient prior to Dr. Lucca redoing Dr. Fenichel's work, and copies of photographs from the Patient representing the physical condition of the dentistry prior to the work having been redone. The September 14, 1990 Probable Cause Panel met to consider the Department's renewed recommendation for a finding of probable cause and the issuance of a letter of guidance to Dr. Fenichel in connection with his treatment of F.P. After discussion and consideration, the September 14, 1990 Probable Cause Panel made a determination that probable cause of a violation did exist and again directed DPR to file an Administrative Complaint against Dr. Fenichel's license. At the September 14, 1990 Probable Cause meeting, the Panel and the Department's prosecuting attorney noted the crucial nature of credibility issues regarding the subsequent treating dentist and the Patient before making a determination that probable cause did exist to believe that Dr. Fenichel had violated Section 466.028(1)(y), Florida Statutes. As a result of the September 14, 1990 Probable Cause Panel decision, an Administrative Complaint was filed on or about October 19, 1990 for DPR Case Number 89-08779 initiating action against Dr. Fenichel's license to practice dentistry. Dr. Fenichel's treatment and billing records contained within the investigative report reflect the dates of treatment and the services provided to the complaining Patient as alleged in paragraphs numbered three and four of the Administrative Complaint. Paragraph five subparagraph (c) of the Administrative Complaint alleged that Dr. Fenichel's records regarding the complaining Patient were inadequate and below minimum standards for the profession. This allegation was based on Dr. Bliss' review of Dr. Fenichel's records regarding the Patient that were in the DPR investigative report. Subsequent to the filing of the Administrative Complaint, Dr. Fenichel's attorney took the deposition of Dr. Bliss. At the deposition, Dr. Fenichel's attorney provided Dr. Bliss with additional records from Dr. Fenichel's patient file. These documents prompted Dr. Bliss to partially retreat from his previous opinion that Dr. Fenichel's records regarding the Patient were inadequate. Subparagraphs (a) and (b) of paragraph five of the Administrative Complaint charged Dr. Fenichel with incompetence and/or negligence in his treatment of the Patient. These charges were based on the March 22, 1989 letter to the Patient by Dr. Lucca outlining his clinical findings, Dr. Fenichel's treatment records reflecting the problems the Patient was experiencing and Dr. Fenichel's repeated attempts at adjusting the dentistry, the Patient's x-rays, the photographs provided by the subsequent treating New Jersey dentists and/or the Patient, the Patient's written complaint, and Dr. Bliss' report. Petitioner disputed the factual allegations contained within the Administrative Complaint and a request for formal administrative hearing was filed with DOAH on or about November 5, 1990. The case was assigned DOAH Case Number 90-07729. On November 8, 1991, the Probable Cause Panel met to reconsider the case against Dr. Fenichel. The membership of the Panel had changed since Dr. Fenichel's case had last been considered. The DPR attorney indicated to the Panel that the Department did not believe that it could prevail at final hearing against Dr. Fenichel because no independent evaluation of his work could be obtained. The Department recommended a finding of probable cause with a letter of guidance issued to Dr. Fenichel. It is unclear what, if any efforts were made to contact the subsequent treating New Jersey dentist. During his presentation to the Probable Cause Panel on November 8, 1991, the DPR prosecuting attorney indicated that he had tried to contact Dr. Lucca and found him to be uncooperative. After a brief discussion, the November 8, 1991 Probable Cause Panel accepted the Department's recommendation, determined that probable cause of a violation did exist and directed the Department to close the case with a letter of guidance issued to Dr. Fenichel. A Notice of Voluntary Dismissal for DPR Case Number 89-08779, DOAH Case Number 90-07729, was filed by DPR with DOAH on November 20, 1991. The undersigned Hearing Officer entered an Order closing the DOAH file in the underlying proceeding on November 21, 1992. On November 25, 1991 Dr. Fenichel, through his attorney, received a copy of DPR's Notice of Voluntary Dismissal dated November 20, 1991. A Closing Order in DPR Case Number 89-08779 was entered by the Probable Cause Panel on or about December 16, 1991, finding that there was probable cause of a violation, but closing the case with a letter of guidance issued to Dr. Fenichel. Sometime after December 16, 1991, Dr. Fenichel, through his attorney, received a copy of the closing order issued by the Probable Cause Panel of the Board of Dentistry on December 16, 1991. The Closing Order noted: "The Department's expert consultant was unable to make a determination as to the standard of care rendered by the subject to F.P." Dr. Fenichel's Petition for Attorney's Fees and Costs was filed on January 24, 1992. The parties have stipulated that the hourly rate charged by Dr. Fenichel's counsel in the underlying case was reasonable.
The Issue Whether the Petitioner demonstrated that she was terminated from employment by Respondent as the result of an unlawful employment practice based on her race, or as retaliation for Petitioner’s opposition to a practice which is an unlawful employment practice.
Findings Of Fact Respondent is a provider of health-care services that receives funding from the West Volusia Hospital Authority (WVHA). Respondent operates health clinics in Pierson, DeLand, and Deltona, Florida. Petitioner was employed by Respondent as a Certified Medical Assistant on September 25, 2009. After a period of time in Respondent’s Pierson office, Petitioner was transferred to Respondent’s DeLand office. Petitioner’s duties included those as a referral clerk. In that capacity, Petitioner arranged, scheduled, and coordinated referrals from Respondent’s medical providers to outside physicians and laboratories. Petitioner also performed blood-draws, Pap smears, and related services. Petitioner was frequently behind in her referrals. Petitioner sought assistance with her referrals. Taken in the light most favorable to Petitioner, an employee of Respondent with some apparent supervisory authority denied her requests, and advised other employees that they were not to assist Petitioner in catching up. In October 2010, Petitioner was assigned to Respondent’s newly created Emergency Room Diversion (ERD) program. That assignment caused a change in Petitioner’s shift from the 9:00 a.m. to 5:00 p.m. shift, to the 12:00 p.m. to 8:30 p.m. shift. She was returned to her normal day shift in mid-November. The disruption in her standard shift caused Petitioner to fall further behind in her referrals. To minimize the problem, nurses began to make referrals for their doctors when they had the time. On November 19, 2010, Petitioner called Juanita McNeil, an elected commissioner of the WVHA, to discuss what Petitioner perceived to be sub-standard patient care that, in some cases, related to referrals that were not being timely completed, and for which Petitioner was receiving no assistance. Petitioner asked Ms. McNeil to keep their conversation confidential because she feared that she would be terminated for going outside of the chain of command. Later in the day on November 19, 2010, Petitioner was presented with a separation notice by which she was terminated from employment. The separation notice listed four reasons for her termination. The reasons were “employee not doing job in a timely manner, being rude with patients, being rude with other employees, [and] insubordination (calling the WVHA) instead of talking with appropriate supervisors.” During the hearing, Petitioner admitted that “100% of the reason that I was fired is because of me calling the WVHA.” Upon follow up inquiry, Petitioner reiterated that she was terminated for insubordination in bypassing her supervisors to contact a WVHA commissioner, and that reason formed the basis for her complaint that she had been the subject of discrimination or retaliation. Petitioner knew of no other employee that ever communicated directly with a WVHA commissioner, or that ever escaped disciplinary sanctions for having done so. Thus, there was no comparator upon which to measure whether Petitioner was treated differently under like circumstances as a result of her race. Petitioner’s admission of the basis for her termination is dispositive of this case. Being terminated for insubordination, in the absence of evidence that persons outside of her protected class were treated differently, is not related to Petitioner’s race. Petitioner’s admission demonstrates that her claim is not founded on an unlawful employment practice based on her race, or retaliation for Petitioner’s opposition to a practice which is an unlawful employment practice. Based on Petitioner’s admission, the undersigned concluded that there was no legal basis upon which relief could be ordered under the Florida Civil Rights Act. Thus, the final hearing was adjourned.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing Petitioner’s Petition for Relief. DONE AND ENTERED this 10th day of October, 2012, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 10th day of October, 2012.
The Issue Fact Issues Did Petitioner, Flo-Ronke, Inc. (Flo-Ronke), fail to timely pay a fine imposed by Final Order of the Respondent, Agency for Health Care Administration (Agency)? Did the Agency reject attempts by Flo-Ronke to timely pay the fine in full by a single payment without conditions? Did Flo-Ronke attempt to pay the fine untimely in full by a single payment without conditions? If so, did the Agency reject the proffered payment? Did Flo-Ronke employ an individual in a position that required background screening who had a disqualifying criminal conviction? Law Issues Which party bears the burden of proof? What is the standard of proof? Do the facts support denying re-licensure of Flo-Ronke? Are untimely efforts to pay the fine in full with a single payment mitigating factors? If so, how should the factors be weighed?
Findings Of Fact Flo-Ronke is an Assisted Living Facility (ALF). An ALF is a building, part of a building, or a residential facility that provides “housing, meals, and one or more personal services for a period exceeding 24 hours to one or more adults who are not relatives of the owner or administrator.” § 429.02(5), Fla. Stat. (2015).1/ The Agency licenses and regulates ALFs. §§ 429.04 and 429.07, Fla. Stat. Flo-Ronke is subject to the Agency’s licensure requirements and is licensed by it. By Notice of Intent to Deny Renewal Application dated December 2, 2014, the Agency denied Flo-Ronke’s application to renew its license on the grounds that Flo-Ronke “failed to comply with the criminal background screening requirements by employing a caretaker who was not eligible to work in the facility.” On January 8, 2015, the Agency amended the Notice of Intent to Deny. On January 21, 2015, the Agency issued a Second Amended Notice of Intent to Intent to Deny for Renewal. This notice is the subject of this proceeding. The second amended notice asserts two bases for denial. One is the originally asserted background screening violation. The other is Flo-Ronke’s failure to pay an outstanding fine in AHCA Cases 2014002513 and 2014002514. Payment of the Fine In AHCA Cases 2014002513 and 2014002514, the Agency’s Administrative Complaint charged Flo-Ronke with four deficiencies involving insects, cleanliness, medication administration, and inadequate staffing. Originally, Flo-Ronke requested an evidentiary hearing before DOAH (DOAH Case No. 14-1939). Later, Flo-Ronke, through its owner Ms. Akintola, agreed there were no disputed issues of facts and stipulated to returning the matter to the Agency for an informal hearing. The Agency provided Flo-Ronke an opportunity for a hearing. No representative of Flo-Ronke appeared at the hearing. The Agency issued a Final Order on November 5, 2014, upholding the Administrative Complaint and imposing a $13,500 fine. The Agency’s Final Order included instructions on how to make the payment, advised that the payment was due within 30 days of the Final Order, and cautioned that interest would be imposed on overdue amounts. The Final Order included a Notice of Right to Judicial Review. On behalf of Flo-Ronke, Ms. Akintola appealed the Final Order pro se. The Florida Rules of Appellate Procedure do not provide for an automatic stay of a decision if it is appealed. Flo-Ronke did not seek a stay of the Final Order. Consequently, the obligation to pay the fine was effective as of the date of the Final Order. The First District Court of Appeal rendered an Order requiring Flo-Ronke to obtain counsel for the appeal because a corporation cannot be represented by an employee or officer. Flo-Ronke did not obtain counsel or respond to the court’s Order. On January 16, 2015, the court dismissed Flo-Ronke’s appeal. On April 9, 2015, Flo-Ronke, represented by the same counsel as in this proceeding, moved to re-open the appellate case. On April 17, 2015, the court denied the motion. It also denied Flo-Ronke’s subsequent motion seeking reconsideration, clarification, a written opinion, and a stay. From the date that the Agency entered the Final Order imposing the fine in DOAH Case No. 14-1939 (AHCA Cases 2014002513 and 2014002514) to the date of the final hearing, Flo-Ronke did not pay the fine. Starting around February 2015, attorney Scott Flint tried, on Flo-Ronke’s behalf, to arrange a payment plan for the fine. He discussed the proposal with Agency Attorney Edwin Selby. Mr. Flint linked the discussions to resolving a separate investigation of Flo-Ronke that the Agency was conducting. Mr. Flint never offered unconditional payment of the fine on behalf of Flo-Ronke. Mr. Flint testified that at some point during conversations about the two cases, Mr. Selby said the Agency would not accept full payment if it was offered. Mr. Selby testified that he did not make this statement. Mr. Selby’s testimony is more credible in this instance, as it is in other instances when Mr. Selby’s testimony differed from Mr. Flint’s. One reason Mr. Selby’s testimony is more credible is that on February 11, 2015, after the time Mr. Flint says Mr. Selby made the statement, Mr. Flint wrote Mr. Selby a letter proposing an installment plan for paying the fine. The letter did not mention the alleged statement that the Agency would not accept payment. The proposal and the failure to mention the alleged refusal are inconsistent with the assertion that Mr. Selby said payment would not be accepted. Also, Mr. Flint hedged his testimony about the alleged refusals, noting that lawyers say many things during negotiations. Mr. Selby’s testimony about conversations after the February 11 letter is also more credible. Mr. Selby never said that the Agency would not accept full payment if it were tendered. The clear and convincing evidence proves that from the date the Agency entered the Final Order to the date of the final hearing, Flo-Ronke never tendered full and complete payment of the fine to the Agency. Flo-Ronke, despite its assertions during pre-hearing motion practice, did not offer any evidence that could be reasonably be interpreted as proving that Flo-Ronke tendered full payment of the fine or that the Agency refused the payment. Even Mr. Flint’s testimony, if fully credited, is not evidence that Flo-Ronke tendered full payment or that the Agency refused full payment. Background Screening At all relevant times, Florida law required level two background screening of any person seeking employment with a provider whose responsibilities may require him to provide personal care or other services directly to clients or who will have access to the client living area. § 408.809(1)(e), Fla. Stat. (2014). Individuals who have disqualifying offenses may not hold positions where they provide services to clients or will have access to client living areas. Florida law also requires re-screening every five years after employment. § 408.809(2), Fla. Stat. (2014). Agency surveyor, Laura Manville, surveyed Flo-Ronke and its records on September 2, 2014. At that time, F.M. was employed there. Flo-Ronke employed F.M. since at least 2009. F.M.’s duties included caring for residents. In addition, even when performing non-caretaking duties, such as grounds-keeping and maintenance, F.M. had unsupervised access to the residents and their living area. F.M. was adjudicated guilty of a disqualifying sex offense on October 28, 1999. Flo-Ronke’s records did not document the required level 2 background screening of F.M. when reviewed on September 2, 2014. At that time, Ms. Manville told Ms. Akintola of the deficiency and that F.M. was not eligible to work at the ALF. This was not the first time the Agency advised Ms. Akintola of the deficiency. By letter dated October 2, 2009, the Agency advised that background screening of F.M. had revealed he had a disqualifying criminal offense. It advised Flo-Ronke that it must either terminate the employment of F.M. or obtain an exemption from disqualification. Flo-Ronke did neither. Ms. Manville conducted a follow-up survey on September 10, 2014. Despite the notice given on September 2, 2014, F.M. was still present at the facility performing grounds work and had access to client living areas. Ms. Akintola presented testimony and a single document attempting to prove that F.M. passed background screening in 2010. The document appears to show a determination of no background screening violation in 2010. Why it differs from other documents from 2009 and after 2010 is not explained. The circumstances surrounding the document are somewhat mysterious. It does not appear in the Agency files. On September 2, 2014, Ms. Akintola did not mention it. On that day, she said she thought F.M. did not need to satisfy screening requirements because he had worked for so long at Flo-Ronke. More importantly, the issue is whether F.M. was employed in 2014 in violation of the background screening requirements. The clear and convincing evidence, including evidence of the conviction in the background screening database, the continued employment of F.M. after September 2, 2014, and the letter of October 2, 2009, proves that in 2014 F.M. had a disqualifying offense and did not have an exemption from the disqualification.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order denying the application of Flo-Ronke, Inc., for renewal of its ALF license. Jurisdiction over the Motion for Fees and Costs is retained for further appropriate proceedings once the prevailing party has been determined. DONE AND ENTERED this 30th day of October, 2015, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 30th day of October, 2015.
