The Issue The issues are whether Respondent failed to maintain good moral character in violation of sections 943.1395(7) and 943.13(7), Florida Statutes (2017),1/ and Florida Administrative Code Rule 11B-27.0011(4)(d); and, if so, what penalty should be imposed.
Findings Of Fact The Commission is an agency of the State of Florida responsible for the certification, and the revocation of certification, of officers and instructors in the criminal justice disciplines. Officer Barcia was certified as a law enforcement officer in the State of Florida by the Criminal Justice Standards and Training Commission on April 1, 2016, and issued Correction Certification No. 332010. Officer Barcia was employed by the Department from June 19, 2017, to January 3, 2018. As part of his employment agreement with the Department, he agreed to submit to random drug testing. On November 20, 2017, Officer Barcia was randomly selected by the Department to provide a drug test, signed a document indicating his agreement to take a drug test, and submitted a urine sample for drug testing. Prior to the submission of his sample, Officer Barcia did not notify his employer of any reason his drug tests would come back positive or indicate any reason to distrust the drug test laboratory. After submitting the sample, Officer Barcia signed a form, which stated "I certify that I provided my specimen to the collector; that I have not adulterated it in any manner; each specimen bottle used was sealed with a tamper-evident seal in my presence; and that the information and numbers provided on this form and on the label affixed to each specimen bottle is correct." Section 112.0455, Florida Statutes, "the Drug-Free Workplace Act" (Act), establishes standards for workplace drug- testing programs. The Act authorizes random testing, establishes collection procedures to avoid sample contamination, requires accurate labeling, provides for chain of custody, and sets requirements for testing laboratories to conduct initial screening and confirmation testing. Officer Barcia does not dispute the testing procedures or qualifications of the employees or testing procedures used by the laboratory that tested his urine sample, or the chain of custody of his sample. Dr. Bucklin is a practicing physician and the national MRO for U.S. Healthworks and Centra. He has been certified for 20 years and is on the faculty for the American Association of Medical Review Officers, an accrediting organization. He was licensed as a physician by the State of Florida at both the time the drug test was conducted and at the time of his testimony at hearing. Dr. Bucklin's office reviewed the drug tests conducted on the urine sample of Officer Barcia that had been taken on November 20, 2017, and identified the presence of two anabolic steroids: drostanolone and trenbolone. Both the parent drugs and metabolites were identified by immunoassays, the screening test (very sensitive, but not specific), and by gas chromatography-mass spectometry, the confirmation test (highly specific, but not as sensitive). Prior to submission of these test results to the Department, on December 8, 2017, Officer Barcia was contacted by Dr. Bucklin and notified that he tested positive for anabolic steroids. Officer Barcia was asked if he could give a reason his results were positive. Officer Barcia told Dr. Bucklin that he was on "estrogen blockers" and that he would send verification to Dr. Bucklin. The drug tests in this case were conducted in accordance with section 112.0455 and were not contested by Officer Barcia. At hearing, Officer Barcia testified that a doctor gave him a prescription for drostanolone sometime around September 2015 to treat a slight bump under his left nipple that had sensitivity and swelling. He was not prescribed a two-year dosage. He testified that he obtained the prescription from the WFN Clinic, which was later shut down in February 2017. He testified that he believed at the time that the clinic was legitimate and that he had no reason to believe the prescription was unlawful. Officer Barcia stated that when he was originally given the prescription, he was instructed to "take as needed" and that he took it only for the prescribed purpose. He stated that in August 2017, he felt a bump that resembled the one he had when he was originally given the medication so he took it "as needed" and the bump vanished. Dr. Bucklin credibly testified at hearing, and it is found, that neither drostanolone nor trenbolone may lawfully be prescribed to a patient in the United States. As Dr. Bucklin testified, even if drostanolone or trenbolone were illegally prescribed, those prescriptions could not be filled at a pharmacy. Dr. Bucklin also credibly testified at hearing that no verification of a prescription was ever received from Officer Barcia, that a male would be prescribed estrogen blockers only under unusual circumstances, and that even if estrogen blockers were ingested, they would not have turned into drostanolone or trenbolone, as detected in the urine sample. Officer Barcia's testimony that he thought he obtained a legitimate prescription from WFN Clinic was not credible. He failed to identify the doctor who prescribed the steroids. Even had his testimony about his medical condition been credible, it would not explain the drug test results. There is no reasonable explanation as to why a physician would secretly give an unlawful prescription for steroids (rather than a medicine that could be lawfully prescribed) to an unwitting patient in order to treat a medical condition, while misrepresenting to that patient that he was receiving estrogen blockers. Officer Barcia failed to maintain good moral character in that he unlawfully injected, ingested, inhaled, or otherwise introduced anabolic steroids into his body, as evidenced by a drug test conducted in accordance with sections 112.0455. No evidence of any prior disciplinary history was introduced for Officer Barcia.
Recommendation Upon consideration of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Florida Criminal Justice Standards and Training Commission enter a final order finding Ernie Barcia in violation of section 943.1395(7) and 943.13(7), Florida Statutes, and Florida Administrative Code Rule 11B-27.0011(4)(b), and suspending his certification for a period of two years, followed by a two-year period of probation, subject to terms and conditions imposed by the Commission to facilitate his rehabilitation. DONE AND ENTERED this 11th day of January, 2019, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 11th day of January, 2019.
Findings Of Fact Based upon the record evidence, as well as the factual stipulations entered into by the parties, the following Findings of Fact are made: Respondent was certified by the Criminal Justice Standards and Training Commission on May 3, 1985, and issued certificate number 19-85-502-01, which she still holds. On January 31, 1990, Respondent was employed by Metro-Dade County as a correctional officer and held the rank of corporal. She had been employed as a Metro-Dade County correctional officer for the previous five years. On January 31, 1990, Respondent reported to Mount Sinai Medical Center (Center) in Miami Beach, Florida for a biannual physical examination required by her employer. Respondent had approximately two weeks advance notice of this examination. At about 9:18 a.m., in a private area of the Center, as part of her examination, Respondent urinated into a sterile urine sample cup that had been provided by the Center. She then delivered the cup containing her urine sample to Phyllis Miller, an employee of the Center's laboratory. Miller immediately capped the sample cup and labeled it with bar code number 417002 and the laboratory reference number 83278, thus making it uniquely identifiable. At about 4:14 p.m., the sealed sample cup containing Respondent's urine was delivered to Toxicology Testing Services' (TTS's) laboratory in Miami and placed in secure storage. At about 8:00 p.m., TTS laboratory employee Monica Hernandez retrieved the sample cup. Hernandez dispensed a portion of the urine sample from the cup and then performed an initial chemical screen to determine if there was evidence of any controlled substances or their metabolites in the urine. On March 8, 1990, at about 5:00 p.m., a portion of the remaining urine in the cup was dispensed and a confirmation analysis of the urine was performed. Neither the sample cup, nor the urine sample it contained, had been tampered with, altered or adulterated since the initial collection of the urine sample. Respondent's urine was analyzed by gas chromatography-mass spectrometry, an extremely reliable confirmatory testing method. This confirmatory testing revealed the presence of benzoylecgonine in Respondent's urine in a concentration of 588 nanograms per milliliter. Benzoylecgonine is a metabolite that is produced when cocaine is introduced into the body. Cocaine is the only substance known to produce benzoylecgonine. The results of the testing of Respondent's urine sample were consistent with, and indicative of, Respondent's voluntary ingestion of cocaine sometime within a two month period prior to giving the sample. 2/ At the time of the final hearing in the instant case, Respondent was no longer employed by Metro-Dade County as a correctional officer.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Criminal Justice Standards and Training Commission enter a final order (1) finding Respondent guilty of having failed to maintain "good moral character," in violation of Section 943.1395(5), Florida Statutes, by virtue of her unlawful use of cocaine on or about January 31, 1990; and (2) revoking her certification, based upon such a finding. RECOMMENDED in Tallahassee, Leon County, Florida, this 27th day of December, 1991. STUART M. LERNER 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 Hearings this 27th day of December, 1991.
The Issue The issue in the case is whether the allegations of the Administrative Complaint are correct, and, if so, what discipline should be imposed.
Findings Of Fact At all times material to this case, the Respondent was a licensed certified nursing assistant, holding Florida license number 113243. On or about December 14, 2008, the Petitioner submitted to a drug screening urinalysis test at the request of an employer, Maxim Healthcare Services (Maxim). The sample was collected at a Maxim facility located at University Park, Florida. The Forensic Drug Testing Custody and Control Form and the urine sample collection container bear handwritten dates of December 13, 2008. At some point, the dates on the form and the container were overwritten to indicate that the sample was collected on December 14, 2008. According to the Respondent's Response to the Petitioner's Request for Admissions, the sample was collected on April 14, 2008. The Petitioner presented an expert witness who testified as to the testing procedures, including custody and storage of the urine samples to be tested. The expert witness' testimony regarding sample collection and transportation, calibration of equipment, sample storage and testing methodology, and reporting of test results, was persuasive and has been fully credited. According to the documentation presented by the Petitioner's expert witness, the sample collection container was received by the testing laboratory on December 15, 2008, with all transportation packaging and the sample container seal intact. According to the expert witness, the test for which Maxim paid, screened for ten drugs, including marijuana. According to the expert witness, the testing equipment was properly calibrated at the time the Respondent's urine sample was tested. The initial immunoassay test result indicated the presence of a recognized by-product of marijuana (delta nine tetrahydrocannabinol carboxylic acid) in the Respondent's urine sample. Because the first result was positive, a second test was performed using a gas chromatography/mass spectrometry device, which confirmed the presence of delta nine tetrahydrocannabinol carboxylic acid in the Respondent's urine sample. The Respondent denied using marijuana. The Respondent asserted that the test results were inaccurate. The Respondent testified that he had a prescription for, and was taking, hydrocodone at the time he provided the urine sample for the test at issue in this proceeding, but that the test results did not indicate the presence of hydrocodone. The Respondent asserted that the test result was either the result of lab error or that the sample was not his urine. The Petitioner's expert witness testified that the screening tests purchased by Maxim included limited testing for opiates and would not have indicated the presence of hydrocodone in the Respondent's urine. Although the Respondent testified that he had been told by Maxim personnel that the test results should have revealed the presence of hydrocodone, the Respondent's testimony in this regard was uncorroborated hearsay and was insufficient to support a finding of fact. Although the Respondent asserted that the sample tested was either not his urine or was otherwise tampered with, the evidence failed to support the assertion. There was no evidence that the sample was tampered with in any manner when the sample was obtained or during transportation to the testing laboratory. There was no evidence that the seal on the sample collection container was not intact at the time the sample was provided or transported. There was no evidence that the sample was stored improperly. There was no evidence that the testing equipment was not properly calibrated or that the tests were improperly performed. The Respondent testified, without contradiction, that over the course of 20 years in nursing work both before and after the tests at issue in this proceeding, his test results have never reported the presence of marijuana.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order assessing a fine of $250, requiring completion of an IPN evaluation, and imposing a 12-month period of probation. DONE AND ENTERED this 31st day of March, 2009, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 31st day of March, 2009. COPIES FURNISHED: Dr. Ana M. Viamonte Ros, Secretary State Surgeon General Department of Health 4052 Bald Cypress Way, Bin A-00 Tallahassee, Florida 32399-1701 Rick Garcia, MS, RN, CCM Executive Director Board of Nursing Department of Health 4052 Bald Cypress Way, Bin C-02 Tallahassee, Florida 32399-1701 Patricia Dittman, Ph.D(C), RN, CDE Board of Nursing Department of Health 4052 Bald Cypress Way, Bin C-02 Tallahassee, Florida 32399-1701 Josefina M. Tamayo, General Counsel Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701 Megan M. Blancho, Esquire Carla Schell, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 Michael N. Heimur, C.N.A. 4901 South Salford Boulevard North Port, Florida 34287
The Issue The issue is whether Respondent failed to maintain good moral character in violation of section 943.1395(7), Florida Statutes (2011)1/ and Florida Administrative Code Rule 11B- 27.0011(4)(d), and if so, what penalty should be imposed?
Findings Of Fact The Commission is an agency of the State of Florida responsible for the certification, and the revocation of certification, of officers and instructors in the criminal justice disciplines. Ms. Lorrie Gerdon was certified as a Correctional Officer in the State of Florida by the Commission on June 8, 2009, and issued Correctional Certification #284320. Ms. Gerdon was employed by the Florida Department of Corrections from October 17, 2008, to January 19, 2011. Although originally employed as a Correctional Officer, Ms. Gerdon took a step down in assignment to a Clerk Typist due to a back injury sometime early in 2010. It was too hard for her to continue to wear all of the equipment that Correctional Officers must wear. She is still receiving payments from workers’ compensation and is under treatment for her back injuries. Lieutenant Georgiana Hand is employed at the Apalachee Correctional Institute in Sneads, Florida, where she has worked since about 1988. It is Lt. Hand’s responsibility to supervise the Corrections Officers, listen to Disciplinary Reports, and fill in for the shift supervisors when one of them is on leave. On January 14, 2011, Lt. Hand was the Officer in Charge, fulfilling the duties of a Shift Supervisor, insuring that Officers were posted at their assigned locations. Ms. Gerdon was assigned to a non-sworn position as a Clerk Typist in the Classifications Department. As Lt. Hand was posting the shift, Ms. Gerdon stated, “Me and Jarvis will go work for you in P-Dorm.” (Officer Jarvis was a Classification Officer.) Lt. Hand thought that this was an odd comment because P-Dorm had been closed down for a couple of years. Lt. Hand asked Ms. Gerdon to repeat what she said. Ms. Gerdon again volunteered to work with Officer Jarvis in P-Dorm. Lt. Hand observed that Ms. Gerdon was “real jovial” and that her speech was slurred. Ms. Gerdon’s eyes appeared to be glassy. Ms. Gerdon’s appearance and behavior concerned Lt. Hand. Ms. Gerdon was not behaving normally and Lt. Hand thought Ms. Gerdon might be on medication or “something else.” Lt. Hand notified Assistant Warden Tommy Barfield. Shortly after, Lt. Hand was asked to report to the Warden’s Office. When Warden John Palmer received the reports about Ms. Gerdon’s unusual behavior, he had asked to talk to her so that he could observe her appearance and behaviors himself. Warden Palmer has been employed in various capacities in the corrections system for over 20 years, and based upon his training and experience is able to determine whether or not there is reasonable suspicion that someone is under the influence of a controlled substance. Warden Palmer testified that he observed that Ms. Gerdon had “glassed over” eyes and slurred speech. The Warden reasonably concluded that she was under the influence of some type of substance. Lt. Hand was present in Warden John Palmer’s office as he questioned Ms. Gerdon about what was going on. Lt. Hand recalled that Ms. Gerdon was upset and crying. Lt. Hand remembered that after Warden Palmer told Ms. Gerdon that he was going to send her for a reasonable suspicion drug test, Ms. Gerdon told the Warden that she knew she would test positive and that her son had put drugs in her coffee. Warden Palmer also testified that Ms. Gerdon had told him that she had tested herself previously and had tested positive for marijuana. She told the Warden that her son had “poisoned” her coffee with marijuana. As a result of the behavioral and physical changes noted in Ms. Gerdon, on January 14, 2011, Regional Director R. Bryant approved an order requiring Ms. Gerdon to submit to a Reasonable Suspicion Drug Test. Ms. Gerdon, in compliance with the order issued to her by her employer, the Florida Department of Corrections, reported to the Marianna Family Care Center in Marianna, Florida, on January 14, 2011, at approximately 8:45 a.m., and gave a specimen of her urine, by urinating in a sterile, previously unused specimen cup provided to her by personnel at the Marianna Family Care Center. After Ms. Gerdon urinated into the specimen cup provided to her, she delivered the cup containing her urine specimen to a Marianna Family Care Center employee who immediately capped and sealed the specimen container, assigned the specimen ID# 0288508894, and labeled it in a manner making it uniquely identifiable as Ms. Gerdon’s January 14, 2011, urine sample. Ms. April Sadousky is employed as a Medical Assistant in the Marianna Family Care Center and in the office of Dr. Rodriguez, where she is responsible for operating the laboratory and conducting drug screenings. After having Ms. Gerdon sign the chain of custody form indicating that she had provided the specimen, Ms. Sadousky placed the urine sample in a bag, sealed that bag, and placed it in the refrigerated LabCorp drawer, where it was picked up that day by LabCorp personnel. Specimen ID# 0288508894 was received in LabCorp’s accession laboratory by Ms. Catherine Hess, who took the paperwork and the specimen out of the sealed chain-of-custody bag. No one had tampered with or altered the specimen since it was initially collected, as evidenced by the intact seals and the chain-of-custody records. Ms. Phyllis Chandler is a Responsible Person and Lab Manager who works in the Occupational Testing Division of LabCorp. LabCorp holds a Florida Laboratory Permit with Certificate number 052, which was in effect in January of 2011. LabCorp is also licensed by SAMHSA, the Substance Abuse and Mental Health Services Administration. LabCorp participates in proficiency testing of samples with known concentrations submitted by regulatory agencies to insure accurate testing. LabCorp conducts initial testing of urine samples by immunoassay, and confirmation testing by “GC-MS” or gas chromatography-mass spectrometry. It is the regular practice of LabCorp to make reports of the results of its testing. A marijuana metabolite is produced by the body of a person who consumes marijuana either by ingestion or by smoking it. The marijuana is absorbed into the body and it is broken down by the liver, producing the marijuana metabolite, which is excreted though the kidneys, hair, or saliva. As Dr. Dash testified, the only substance other than marijuana that produces a marijuana metabolite is the prescription medication marketed under the name “Marinol” or its generic equivalent “dronabinol.” These prescription drugs have active tetrahydrocannabinol (THC) in them, as does marijuana. LabCorp conducted immunoassay and confirmation testing on Specimen ID# 0288508894. As is their usual practice, records of the testing on Specimen ID# 0288508894 were made at or near the time of the tests and were made by a person with knowledge of the information that was recorded, as was testified to by Ms. Chandler, who is a custodian of these records. In initial screening, the THC cut-off was 50. Specimen ID# 0288508894 tested at 555. In confirmation testing, Specimen ID# 0288508894 tested at 171 nanograms per milliliter of marijuana metabolites. The confirmation cut-off was 15 nanograms per milliliter. All test batches at LabCorp contain blind controls that are run within the batch to assure that the testing process is accurate. The blind controls within the batch containing Specimen ID# 0288508894 were tested correctly. The drug analysis conducted by LabCorp indicated that urine Specimen ID# 0288508894 contained marijuana metabolites. A secure chain of custody was maintained from the time the urine sample was collected until the test results were produced. The Department of Corrections has contracted with Doctors Review Service to receive test results from the laboratory and to contact the specimen donor on all non-negative results to determine if there is any medical documentation that would explain the test results. Dr. Neil Dash is employed by Doctor Review Services and received the test results from Ms. Gerdon’s sample. After Doctors Review Service obtained the laboratory results on Ms. Gerdon’s sample, Ms. Gerdon called them on January 19, 2011. In response to questioning, Ms. Gerdon did not provide Doctor’s Review Service with information on prescriptions or any medical explanation for the finding reported by the laboratory that her sample contained marijuana metabolites. Dr. Dash prepared a Controlled Substance Test Results report indicating that specimen 0288508894 had tested positive for marijuana metabolites. These results were sent to the Department of Corrections. The drug test was conducted in accordance with sections 112.0455 and 440.102, Florida Statutes, and evidenced the introduction of a controlled substance into Ms. Gerdon’s body. Ms. Gerdon testified that her ex-husband abused her. Ms. Gerdon had three children, two girls and a boy. Her ex- husband would threaten the daughters to control Ms. Gerdon. He would not allow her to be around her parents, except when they came over to see her at the house. If she left the house, he would destroy something. Several walls and doors were damaged by her ex-husband. Ms. Gerdon’s son has been diagnosed as manic bipolar through the North Florida Therapy Center. Ms. Gerdon was experiencing a high level of domestic stress at the time of the incident. Ms. Gerdon testified that she had numerous medical problems and was on the following prescriptions at the time of the January 14, 2011, incident: Seroquel, Buspar, Cymbalta, Zoloft, Triazadone, Synthroid, Hydrocodone, Topomax, Fioricet, Nexium, Peridium, Macrodanton, Flomax, Cipro, Indocin, Skelaxin, Zofran, Medrol, Klonopin, Rstrace, Levothroxine, Atarax, Ativan, Reglan, Effexor, and Prozac. Ms. Gerdon testified that she took these medications for anxiety and depression, and that she has a thyroid disease, a kidney disease, and suffers from cluster migraine headaches. She testified that now she is down to only three or four of these medications since she is no longer in an abusive relationship. The drug Fioricet is a prescription medication that contains butalbital, often prescribed to treat migraine headaches. Butalbital is a barbiturate. Ms. Gerdon testified that she takes the Fioricet every day for migraine headaches. Ms. Gerdon testified that prior to the incident of January 14, 2011, with the help of her parents, who own the house, Ms. Gerdon was repairing walls and doors that had been destroyed by her abusive husband. Ms. Gerdon testified that her mother was making coffee and noticed that something was wrong with the coffee: . . . when my mother had noticed that there was something weird about it, she called me and I said, I’m not quite sure what that is, I said, I believe that that is marijuana, and I actually went down and I did get a test, I got a home test. It tested me for marijuana, it tested me for barbiturate and I flipped out. Ms. Gerdon testified that she had not noticed anything before, because “90 percent of the time” she did not even turn on the lights when she scooped out her coffee. Ms. Gerdon testified that she went over her list of medications and was confused about why she tested positive for marijuana. None of the drugs that Ms. Gerdon testified she was taking at the time of the incident would have resulted in a positive test for marijuana metabolites. Ms. Gerdon has been tested almost every other month since the January 14, 2011, incident, and she has not had any test that was positive for marijuana. She testified that she also has not tested positive for barbiturates, although it is not clear why her use of Fioricet would not result in a positive test. Ms. Gerdon was under the influence of marijuana on the morning of January 14, 2011, as evidenced by her physical symptoms, her statement that she knew she would test positive for marijuana, and her drug test results. As both Dr. Dash and Ms. Chandler testified in response to Ms. Gerdon’s questions, it would be possible for persons to ingest marijuana without knowing that they were doing so. It was not clear why LabCorp’s testing of the January 14, 2011, urine sample would not have tested positive for barbiturates as a result of the Fioricet. Dr. Dash testified that if a person was taking Fioricet it would show up in the drug testing if the test was screening for barbiturates and the amount taken exceeded the cut-off set at the laboratory. He did not know what cut-off amount was set by the laboratory. Ms. Gerdon’s ex-husband was incarcerated shortly after their divorce was final. Her son is also now incarcerated. Stress on Ms. Gerdon was reduced after she divorced her husband. Ms. Gerdon is no longer taking many of the medications she was taking earlier. Ms. Gerdon unlawfully injected, ingested, inhaled, or otherwise introduced marijuana into her body. Ms. Gerdon has failed to maintain good moral character. The position of Correctional Officer is one of great public trust. No evidence of any prior disciplinary history was introduced for Ms. Gerdon.
Recommendation Upon consideration of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Florida Criminal Justice Standards and Training Commission enter a final order finding Lorrie Gerdon in violation of section 943.1395(7), as defined in Florida Administrative Law Rule 11B-27.0011(4)(d). It is further recommended that Respondent's certification as a Corrections Officer be suspended for a period of two years, followed by probation for a period of two years. As condition of probation, it is recommended that the Commission require random or scheduled drug testing and substance abuse counseling, as provided for in Florida Administrative Code Rule 11B- 27.005(7)(c). DONE AND ENTERED this 28th day of December, 2012, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 28th day of December, 2012.
The Issue Whether disciplinary action should be taken against Respondent's license to practice as a physician.
Findings Of Fact The Agency is that state agency charged with regulating the practice of medicine pursuant to Section 20.42, Florida Statutes; Chapter 455, Florida Statutes; and Chapter 458, Florida Statutes. Respondent is a physician licensed to practice medicine in the State of Florida. Respondent holds license number ME 0055126. The State of Michigan Department of Commerce Board of Medicine is the licensing authority for the State of Michigan. On or about April 18, 1994, the State of Michigan Board of Medicine issued a letter of reprimand to Respondent, and ordered that Respondent pay a fine in the amount of $1,500.00 within ninety days of the Order for prescribing anabolic steroids for the purpose of improving body-building or weightlifting. Respondent is guilty of having action taken against his license to practice medicine by the licensing authority of the State of Michigan. The State of Michigan notified the agency of its action against the Respondent. A search of the agency's records revealed he had not notified the agency of the action taken by Michigan against him. On or about September 5, 1995, an attempt was made to notify Respondent about the information the agency had received. This letter was subsequently returned unclaimed with a forwarding address in Dallas, Texas. On or about November 9, 1995, a second attempt was made to notify Respondent of the complaint. The letter was sent to Post Office Box 12131, Dallas, Texas 75225, which is the Respondent's current address.1 The Respondent returned the election of rights form and a letter requesting a formal hearing. Respondent failed to notify the Florida Board of Medicine within thirty days of the action taken against his medical license in Michigan. The Respondent failed to notify the Board of his change of address. The Respondent was preciously disciplined by the Board of Medicine by Final Order number AHCA96-00464. The Respondent's license was suspended until he appeared and demonstrated that he could practice with skill and safety.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: That Respondent the Agency enter its Final Order finding the violation of Section 458.331(1)(b), Section 458.331(x) and 458.331(1)(kk) and, Florida Statutes, and revoking the Respondent's license to practice medicine in Florida. DONE and ENTERED this 28th day of February, 1997, in Tallahassee, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 1997.
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed against her, and, if so, what disciplinary action should be taken against her, if any.
Findings Of Fact Respondent was certified as a correctional officer by the Petitioner on February 11, 1983, and was issued certificate number 19-82-502-08. On August 8, 1990, Respondent reported to Mount Sinai Medical Center Industrial Medicine Department in Miami Beach, Florida, for her biannual physical required by her employer, the Metro-Dade Department of Corrections and Rehabilitation. Respondent was provided with a sealed, sterile container into which Respondent urinated. Respondent then gave the urine sample container to a Mount Sinai employee who "split" the specimen by unsealing two sterile containers and dividing the urine specimen between those two containers. The Mount Sinai employee then capped and sealed the two specimen containers and labelled them in a manner making them uniquely identifiable as the Respondent's urine samples. An identifying bar code number was also placed on the two sealed containers, and the containers were then placed in a locked metal box. Later that afternoon, the locked metal box containing Respondent's "split" sample was transported from Mount Sinai Medical Center to Toxicology Testing Service's (hereinafter "TTS") laboratory in Miami by an employee of TTS. At TTS another employee removed the containers from the metal box, logged in both containers assigning a TTS control number to them, and inspected the containers for any evidence of leakage or tampering. The two containers of Respondent's urine were properly labelled, sealed, and intact. One of Respondent's samples was opened, and a portion of that sample was dispensed into a sterile cup for testing. The other container of Respondent's urine remained sealed. An initial chemical screen for the purpose of determining if there was evidence of controlled substances or their metabolites in the Respondent's urine sample was performed on the dispensed portion of Respondent's urine. That drug screen showed that Respondent's urine was positive for cocaine. Due to the positive reading, the technologist dispensed another portion of Respondent's urine from the container which had been unsealed and re-tested Respondent's urine. The re-test again showed that Respondent's urine was positive for cocaine. On the following day, August 9, a different TTS employee dispensed another portion of Respondent's urine from the container that had been previously unsealed and analyzed it using gas chromatography/mass spectrometry, the most reliable and accurate method for confirmatory testing. Respondent's sample was confirmed positive for the presence of the cocaine metabolite benzoylecgonine in a concentration of 202 nanograms per milliliter. Respondent and her then-employer were advised of the results of the initial screening, the re-testing and the confirmatory testing. On August 20, 1990, Respondent and a representative of her then-employer went to TTS. In their presence, the second container of Respondent's "split" sample, which had been kept in a freezer at TTS since its arrival there, was inspected by the laboratory director and the others present at that meeting. That second container had never been unsealed and still bore all identifying markings, including Respondent's initials. In Respondent's presence, that second container was unsealed for the first time, and two portions of the contents of that container were dispensed so that the second container was divided into three parts. The original container with the undispensed portion was resealed, marked, and returned to the freezer for storage. One of the dispensed portions was sent to an independent laboratory for confirmatory testing. The second dispensed portion was then tested by TTS on August 24, 1990. That testing revealed that that portion of Respondent's urine was also positive for the cocaine metabolite. The confirmatory test results showed 174 nanograms per milliliter of that cocaine metabolite. The screening and confirmatory test results are consistent with, and indicative of, use of cocaine by Respondent. No other substance produces the cocaine metabolite benzoylecgonine. Respondent was terminated from her employment with the Metro-Dade Department of Corrections and Rehabilitation due to the presence of cocaine in her urine on August 8, 1990. Prior to her termination, Respondent had consistently received evaluations reflecting that she was an excellent employee, had been commended for her reliability and responsibility as a correctional officer, and had been named as officer of the month.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered Finding Respondent guilty of the allegations contained in the Administrative Complaint filed in this cause; Suspending Respondent's certification as a correctional officer for a period not to exceed two years; and Placing Respondent on probation for a period not to exceed two years during which time she should be required to submit to random urine drug testing and substance abuse counselling. DONE and ENTERED this 9th day of April, 1992, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SC 278-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of April, 1992. APPENDIX TO RECOMMENDED ORDER Petitioner's proposed findings of fact numbered 1-13 are adopted either verbatim or in substance in this Recommended Order. Respondent's nine pages of excerpts entitled Proposed Findings of Fact have been rejected as not constituting findings of fact but rather as constituting recitation of the testimony together with argument. COPIES FURNISHED: Joseph S. White Assistant General Counsel Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Ms. Linda Bass 18101 Northwest 32nd Avenue Miami, Florida 33055 Jeffrey Long, Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore, Commissioner Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302
The Issue The issues in this case are whether Petitioner has provided clear and convincing evidence of rehabilitation from her disqualifying offense; and, if so, whether Respondent abused its discretion in denying Petitioner’s request for an exemption from disqualification from employment as a Medicaid provider.
Findings Of Fact AHCA is the state agency charged with protecting vulnerable persons such as Medicaid recipients and the Medicaid program, and in that capacity, it maintains discretion to approve or deny requests for exemption. Petitioner is a licensed advanced practice registered nurse (“APRN”) and a certified nurse midwife who provided obstetric and gynecological care to Medicaid patients in Broward County, Florida, until she was disqualified from the Medicaid program. Petitioner is seeking to continue to provide obstetric and gynecological care to Medicaid recipients. She has a passion for working with obstetric Medicaid patients and wants to provide them the same opportunity for care as non-Medicaid patients. AHCA’S ACTION Petitioner applied for re-enrollment in the Medicaid program. After completing Petitioner's background screening, Petitioner's May 22, 2018, disqualifying felony criminal arrest and charge of larceny was identified. On February 4, 2019, by letter, AHCA informed Petitioner that the May 22, 2018, larceny offense disqualified her from working for a Medicaid healthcare provider, but that she could apply for an exemption. Petitioner self-reported her May 22, 2018, arrest to the Department of Health. On April 4, 2019, by letter, the Department of Health closed Petitioner’s case after an investigation without taking any disciplinary action against Petitioner’s license for the arrest. On July 31, 2019, Petitioner applied to AHCA for a Medicaid exemption. On October 15, 2019, AHCA closed Petitioner’s July application after Respondent determined the application was incomplete. That same month, Petitioner resubmitted the request for exemption from disqualification, which included the exemption application and supporting documentation ("exemption package"). EXEMPTION PACKAGE In Petitioner's exemption package, she listed her work history, which included the following employment: OB Hospitalist Group, from October 2017 to May 2019; First Class OBGYN, from June 2018 to present; Unified Medical Group, from October 2015 to October 2017; and Global OBGYN, from January 2013 to August 2018. Petitioner completed the education and training section of her exemption package by providing the answers that she had a master’s degree, completed training to become an APRN and a certified nurse midwife at Frontier University from 2009 to 2011, and provided her license number APRN 09190212. Petitioner also included a signed letter detailing her December 7, 2004, charge of permitting an unauthorized person to drive from Columbia County, Florida. She explained in the letter that she was charged after her brother drove her car while she was at work and had a fatal head on collision that claimed both his life and the other driver’s. In Petitioner’s exemption package, she included court records and dispositions for the following three criminal offenses: a 2004 misdemeanor, permit unauthorized person to drive, offense for which she successfully completed the six months’ probation after she paid her fines; a 2018 third- degree grand theft charge that was reduced to a misdemeanor petit theft when Petitioner pled to the offense; and a 2018 municipal ordinance petit theft charge that was dismissed. Petitioner also submitted letters of reference to support her application. The first letter dated August 23, 2019, was from Dr. Mitchell Spero (“Dr. Spero”), Petitioner’s treating psychologist. Dr. Spero stated in his letter that Petitioner had suffered traumatic events, she attended 27 individual psychotherapy sessions with him since June 18, 2019, and Garcia would not “ever again steal or demonstrate any negative behaviors worthy of any legal involvement.” The other letters supporting Petitioner’s application summarized how well-respected and knowledgeable Petitioner is in the profession as an APRN. Syed Rodriguez’s letter outlined how she has known Petitioner for over ten years, as Petitioner served as her preceptor. In her letter, she acknowledged Petitioner’s mistakes, but stated that the “medical profession needs more caring individuals like her” and that, “if given the opportunity, she can prove only excellence.” Another letter included in the exemption package was from Deline Somoza who grew up with Petitioner and referred to her as an amazing friend, mother, doctor, daughter, and, best of all, caretaker of anyone in need. Christina Kopingon, who worked with Petitioner for three years, stated in her letter in the exemption package that Petitioner “was an asset to our team and exhibited all the qualities necessary to safely and competently perform her role as a hospitalist certified nurse midwife.” The fifth letter Petitioner included in her exemption package was from Angela Melendez, who detailed how she worked with Petitioner for four years. She described Petitioner as knowledgeable, provides excellent patient care, skillful, and someone who she would trust “with my children as well as my own life.” TELEPHONIC EXEMPTION HEARING On December 18, 2019, as part of the exemption application process, Petitioner participated in an approximately 33-minute telephonic exemption hearing (“interview”) with Kelley Goff (“Goff”), a health services and facilities consultant at AHCA in the Background Screening Unit. During the interview, Garcia was honest about all her encounters with the law. Petitioner even offered to discuss her case that was expunged1 but Goff stopped Garcia and told her she did not have to because AHCA did not consider expunged cases, only sealed cases. In the interview, Petitioner explained the three criminal offenses Goff questioned her about. Garcia explained that the December 7, 2004, incident was when her brother took her vehicle while she was at work and had an accident that killed both him and the person in the other car he hit. Petitioner told Goff that because the vehicle was registered in her name, she was charged with permitting an unauthorized person to drive. She disposed of the case after going to court, and, under the advisement of a public defender, she accepted a plea to probation. Petitioner also admitted to Goff during the interview that she committed the larceny case on May 22, 2018. Petitioner explained to Goff 1 At hearing and in its proposed recommended order, AHCA asserts that Petitioner opened the door to explore Petitioner’s expungement case. The undersigned is not persuaded by AHCA’s position. During Petitioner’s interview, Goff specifically stopped Petitioner from discussing expungement and informed Petitioner that AHCA would not be considering any expungement in her case. Hence, expungement is a nonissue in this matter to which the undersigned cannot deliberate. that the case came about when she confessed that she had previously stolen scallops, steak, two laptops, and a raincoat when apprehended at Costco for stealing clothing on May 19, 2018, and that is how Costco was able to charge her with both cases. Petitioner told Goff that the disposition of the cases included the municipal ordinance case being dismissed and she pled to the larceny case that was amended to petit theft with one year’s probation and restitution of $1,198.00, which she paid back, and her probation was terminated early. During the interview, Petitioner also showed remorse and explained to Goff three separate times that she had made poor decisions to steal and that, obviously, there was no excuse for her actions. She told Goff she was very disgusted with her decisions. Petitioner described how she had a patient that died in her arms, which killed her soul and really hurt her, and she started making poor decisions and, unfortunately, stealing was one of them. Petitioner told Goff that she has been in counseling for it all and has learned how to deal with her stress now. Petitioner conveyed to Goff that seeing Dr. Spero has been an amazing help for her to understand how to deal with the trauma that has gone on in her life. Petitioner specified that in addition to her brother dying from the accident, and the patient dying in her arms, she had seven losses in ten years, including her mother who had died two and one-half years ago from suicide. She explained in the interview that she had never stopped going to counseling with Dr. Spero and was still currently in counseling because it “helps me.” Petitioner also told Goff how she had started a women’s support group, which focused on postpartum depression. She explained that the group meets on third Thursdays to discuss issues and listen, so the women will not feel alone. After the telephonic interview and discussion, AHCA denied Petitioner's request for an exemption by letter dated December 20, 2019. The letter provided the following grounds for the denial: [Agency] has considered the following factors including but not limited to: the circumstances surrounding the criminal incident for which an exemption is sought; the time period that has elapsed since the incident; the nature of the harm caused to the victim; a history of the employee since the incident; and any other evidence or circumstances indicating that the employee will not present a danger if continued employment is allowed; and found that you have not provided clear and convincing evidence of your rehabilitation as required by Florida Law. Although Heyn, AHCA’s unit manager for the Background Screening Unit, played no role in reviewing Petitioner’s application, the interview, recommending or making the decision to deny Petitioner’s exemption, Heyn signed the form denial letter and sent it to Garcia at the direction of AHCA’s secretary. AHCA’s secretary also did not make the decision to deny Petitioner’s exemption. Subsequently, on February 11, 2020, Petitioner requested an administrative hearing contesting her denial. HEARING At hearing, Dr. Laviniu Anghel (“Dr. Anghel”) testified that Petitioner has been employed with him as a mid-wife since 2016. He credibly explained that Petitioner is one of his best employees and that he had no concerns regarding her work performance. Dr. Anghel pointed out that Petitioner is even one of the most highly rated providers in his practice on social media. Dr. Anghel testified that he retained Petitioner at his office as an employee even though she is unable to treat Medicaid patients because of her disqualification. Dr. Anghel stated that Petitioner told him about her 2018 arrest, and he was surprised because he did not expect her to steal out of a store. He also testified Petitioner has access to all types of things with his two practices, but she has never stolen from him and he trusts her like a sister. Dr. Anghel further testified that Petitioner told him she regretted stealing. At hearing, Jeremy Kroll (“Kroll”), Petitioner’s criminal defense attorney, also testified. He explained that he initially represented her on the notice to appear case, but there was an ongoing investigation regarding Petitioner’s incident on May 7, 2018, and he ended up representing her on both cases. He explained that the notice to appear, Case 2018-1031M030A, was a municipal case brought by the Town of Davie, charging Petitioner with a misdemeanor of petit theft for stealing four pairs of shorts, two pairs of shoes, and some t-shirts from Costco, to which all the items were recovered. Kroll told how the Town of Davie’s prosecutor dropped the municipal case on July 16, 2018, after Petitioner successfully completed the terms of her pre- trial diversion program that required Petitioner to pay a $350.00 fine and continue ongoing treatment with Dr. Spero. Kroll also testified about Petitioner’s disqualifying offense case he handled. He affirmed Petitioner’s interview explanation with Goff, and Kroll testified that when Petitioner received the notice to appear for the municipal case, Costco went back through store footage from May 7, 2018, and discovered Petitioner stole two laptops. Petitioner was arrested and turned herself in on May 22, 2018, for the third-degree felony grand theft charge. Kroll confirmed Petitioner’s interview that Petitioner pled to a lesser offense of misdemeanor theft, was placed on 12 months of probation, paid the restitution for the two laptops, and continued her psychotherapy with Dr. Spero. Kroll testified that Petitioner immersed herself in therapy with Dr. Spero and received support from Erik Stuehrenberg (“Stuehrenberg”) and his wife. She was also remorseful from day one and took full responsibility for her actions. He described Garcia as having a “true desire to avoid any sort of future conduct even remotely close to [the thefts].” Kroll credibly acknowledged that significant trauma in Petitioner’s background played a role in her actions as she had explained in her interview. Kroll detailed some of the traumatic incidents, such as the accident where she broke 21 bones in her back, and had to learn to walk again, and her pregnancy loss in 2013 as a result of domestic violence. He further explained that he provided a letter to the prosecutor from Dr. Spero with Petitioner’s forensic evaluation. Kroll stated he believed that “the State Attorney’s Office, to their credit, recognized as sort of a trigger, she lost as part of her job as a midwife, she lost one of the mothers that delivered and then lost her own mother almost one after another” and that the theft was a cry for help. Kroll also testified, as Petitioner had explained to Goff in her interview, that “there was a period of time where Garcia was so committed to her patients and to her livelihood that she wasn’t as committed to keeping herself healthy as she should have, and I think she regained that balance as part of this whole process.” At hearing, Stuehrenberg, a Davie police officer, testified that he helped Petitioner through the criminal process after she told him about the 2018 theft. He testified that he was shocked by her arrest. However, Petitioner was remorseful, admitted she made a mistake, and asked for help. Stuehrenberg made clear that Petitioner noticed things were going on in her life that triggered her, and she took the necessary steps to address her problems. Stuehrenberg explained that he sent her to Dr. Spero to talk about the things going on in her life because he knew the doctor would help her sort things out since he was familiar with Dr. Spero’s capabilities, and since he had visited him on occasion for help. He also explained how he and his wife served as a support system to help Petitioner. Goff also testified at the hearing that she has no formal training processing applications but has processed numerous applications over the years that her supervisors had reviewed and approved. Goff explained that she was assigned Petitioner’s application and she follows the statutes and rules when processing an application. Goff also explained that an application starts the review process for an exemption. Goff testified about Petitioner’s interview and reviewed the limited handwritten notes she had taken from the 33-minute interview. Goff testified that the only thing in Petitioner’s background that might have concerned her is the 2018 arrest, but “it’s not up to me to make that decision.” She testified that Mary Mayhew, AHCA’s secretary, decides the exemptions. Goff also addressed her Exemption Decision Summary (“summary”) that she created after the interview and it became part of Petitioner’s application file that was forwarded for review when determining Petitioner’s exemption application. Goff testified that when addressing Petitioner’s criminal offenses, she summarized the three offenses. The summary contained errors, lacked details, and page 1 contained identical answers to the Exemption Decision Summary dated October 15, 2019, when Petitioner’s first case was closed.2 Goff admitted at hearing that she failed to specify on the summary that the 2004 arrest was neither a disqualifying offense nor that the May 19, 2018, municipal charge was dismissed. Goff also testified that she failed to note that Petitioner was currently employed, had healthcare training, or was licensed on page 1 of the summary, even though Petitioner had provided the correct information on her application regarding her employment with First Class OBGYN, training, and licensure status as a certified nurse midwife. At hearing, Dr. Spero testified about Petitioner’s care, diagnosis, and treatment. He credibly discussed Petitioner’s psychological evaluation.3 Dr. Spero explained that he began treating Petitioner on June 18, 2018. He acknowledged she had informed him about two thefts within a 12-day period in May 2018. Even though Dr. Spero could not remember specifically what 2 Resp.’s Ex. 2. 3 Pet.’s Ex. 11. was stolen, he testified that the other theft was “also from Costco involving two laptop computers.” Dr. Spero explained, as part of his psychology practice, he evaluates individuals to determine whether they have been rehabilitated. Dr. Spero testified that he performed a lot of psychological testing to gain insight and direction for Petitioner’s treatment. He determined she was depressed, anxious, had suffered post-traumatic stress disorder several times, and had emotional issues. Dr. Spero summarized some of Petitioner’s events that led to her trauma, including an abusive relationship and numerous losses including a brother, mother, grandmother, stepsister, best friend, and boyfriend. He also concluded that Petitioner’s level of stress exacerbated when she lost a patient because of an embolism and Petitioner’s actions of stealing during the 12-day period were isolated incidents of behavior, out of her character, based on triggered events. Dr. Spero testified that he tested Petitioner multiple times and she does not have a propensity to steal, but the level of stress of loss, including her mother, who committed suicide; grandmother; her stepsister, who overdosed; and the loss of a patient traumatized her and caused the behavior. Dr. Spero also credibly confirmed that Petitioner was still in treatment with him at the time of the hearing and he believes that she is “without any hesitation 100 percent rehabilitated” because he has taught her to deal with her trauma and stress. Petitioner also testified at hearing and explained that she worked at First Class OBGYN full time since 2018, and was a licensed healthcare worker, as she had put on her application. She explained that she had worked at Bethesda Memorial East, but stopped working there after she was disqualified from working with Medicaid patients. At hearing, Petitioner admitted getting caught leaving the Costco after she stole shorts, shirts, and shoes in May 2018, as she had told Goff during the interview. Petitioner credibly explained that while being questioned by the Costco employee that apprehended her, she confessed to also previously stealing laptops, scallops, steak, and a rain jacket, which she was later arrested for and charged with a felony. She testified that she was never charged for taking all the items like the scallops and steak and verified that she turned herself in on the felony charge and spent a night in jail, which she felt was eye awakening and not a “life that I could ever, ever want to live.” Petitioner credibly and persuasively explained that 2018 was a traumatic year for her after she lost her first patient. She testified about how she felt guilt about the patient’s death and grieved after her death. Petitioner conceded that she was not in a good place mentally after the death. Petitioner further testified that she contacted Stuehrenberg and told him what she had done, and he told her to go to Dr. Spero, a licensed professional, for help. Petitioner described how she started seeing Dr. Spero in June 2018 and was still having individual counseling with him as of the date of the hearing. Petitioner pays for each visit. She elaborated how Dr. Spero has helped her tremendously and she has been able to forgive herself, gotten better, and found methods to deal with stress. Petitioner also testified that she started a women’s postpartum depression group as she had discussed in her interview with Goff. She explained that women need someone to talk to and by her being in a domestic altercation when she was pregnant and losing her son at 15 weeks after being hurt badly, she understood the group’s needs and thought she could help them. She founded the women’s group to provide an outlet for release for women who might need it. Petitioner also credibly testified that she has volunteered for about five years with Power Buddies, an organization that helps disabled individuals compete in marathons by pushing them in strollers. She explained that she could relate to the kids because she was hit by a drunk driver and fractured 21 bones, had a head injury, and had to learn to walk again, so it is rewarding to her when she pushes the competitors over the finish line in their strollers. FINDINGS OF ULTIMATE FACT Upon careful consideration of the entire record, it is determined that Petitioner has demonstrated by clear and convincing evidence that she is rehabilitated from her misdemeanor disqualifying offense of petit theft and that she will not present a danger to the Medicaid patients with whom she would have contact with as a certified nurse midwife. Petitioner has shown that she is a responsible individual by successfully holding jobs in the healthcare field as a certified midwife handling prenatal visits, gynecological visits, labor, and postpartum care and treatment for more than seven years without incident, and as a nurse prior to that. All her employment has been in positions where she cared for patients, and no evidence was presented that Petitioner was a danger while doing so. Petitioner’s current supervisor, Dr. Anghel, corroborated Petitioner’s exemplary work record. Also, the compelling letters4 show, by all accounts, Petitioner is well-respected, knowledgeable, caring, the best caretaker, an asset, excellent, and skilled in her field. Petitioner was honest and forthright at hearing. Petitioner demonstrated by credible and compelling evidence that she had a traumatic ten years comprised of, among other events, the following: an accident where she had to learn to walk again; and seven close deaths, including her brother who died in a fatal car accident where Petitioner was charged with the offense, her mother who committed suicide, grandmother, stepsister who overdosed, and the death of her first patient, who died while in her care. Petitioner was not able to hold it together any longer after her first patient died in her arms in 2018, and Petitioner’s trauma caused her to function in an unhealthy mental state. 4 Resp.’s Ex. 7. Petitioner’s traumatic state triggered out-of-character behaviors, including stealing out of Costco twice during a 12-day period in May 2018. Those who knew Petitioner well, such as Stuehrenberg and Dr. Anghel, were shocked and surprised by Petitioner’s actions. Petitioner was immediately remorseful by her behavior and sought help from Dr. Spero in June 2018. Petitioner’s municipal ordinance case was dismissed, and her sole disqualifying offense of larceny was reduced to a misdemeanor petit theft after the prosecutor was provided Dr. Spero’s letter documenting Petitioner’s trauma. Petitioner successfully completed her 12-month probation early by paying restitution and complying with the terms. After evaluating Petitioner, Dr. Spero taught Petitioner how to deal with trauma and stress at the one-on-one counseling sessions. Even after Petitioner’s criminal case was over and prior to applying for an exemption, Petitioner continued to pay and voluntarily attend counseling with Dr. Spero because she recognized the benefits of the treatment. Petitioner has worked hard to address her issues and get her mental health together. Petitioner has complied with her psychological treatment, adhered to the recommendations of Dr. Spero, and continued to obtain psychotherapy through the date of the hearing, which comprised a period of over two years. Petitioner has demonstrated a genuine commitment to improving her life and that she has been rehabilitated. Additionally, Petitioner’s application package that was forwarded to the decision-maker to make a determination on her exemption request was not completely accurate. The summary contained errors and lacked complete details such as: Petitioner’s lengthy successful professional career in the healthcare field was left off page 1 of the summary, which states “No Employment History”; the summary failed to identify Petitioner’s sole disqualifying offense, a misdemeanor petit theft; lists the municipal charge on page 1 without indicating a dismissal disposition; page 2 of the summary fails to distinguish disqualifying and non-disqualifying offenses; and neither the permitting unauthorized person to drive offense nor the municipal ordinance offense are identified as non-disqualifying offenses. Petitioner is also active in her community with the women’s support group she founded and Power Buddies. For these reasons, it is determined that no reasonable individual, upon fully considering the record in this proceeding, could find that Petitioner is not rehabilitated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Agency for Health Care Administration, enter a final order granting Petitioner, Jennifer Garcia’s, request for an exemption from disqualification as a Medicaid provider. DONE AND ENTERED this 14th day of August, 2020, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY 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 14th day of August, 2020. COPIES FURNISHED: Ginger Barry Boyd, Esquire Nelson Mullins Broad and Cassel 215 South Monroe Street, Suite 400 Tallahassee, Florida 32301 (eServed) Jamie B. Gelfman, Esquire Nelson Mullins Broad and Cassel 1 Financial Plaza, Suite 2700 Fort Lauderdale, Florida 33394 Susan Sapoznikoff, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Shena L. Grantham, Esquire Agency for Health Care Administration Building 3, Room 3407B 2727 Mahan Drive Tallahassee, Florida 32308 (eServed) Thomas M. Hoeler, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Stefan Grow, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Mary C. Mayhew, Secretary Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 1 Tallahassee, Florida 32308 (eServed) Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed)
