Conclusions Having reviewed the Administrative Complaint, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency has jurisdiction over the above-named Respondent pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Administrative Complaint and Election of Rights form to the Respondent. (Ex. 1) The Election of Rights form advised of the right to an administrative hearing. 3. The parties have since entered into the attached Settlement Agreement. (Ex. 2) Based upon the foregoing, it is ORDERED: 1. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 2. The Respondent shall pay the Agency $1,000.00 in administrative fines. If full payment has been made, the cancelled check acts as receipt of payment and no further payment is required. If full payment has not been made, payment is due within 30 days of the Final Order. Overdue amounts are subject to statutory interest and may be referred to collections. A check made payable to the “Agency for Health Care Administration” and containing the AHCA ten-digit case number should be sent to: Office of Finance and Accounting Revenue Management Unit Agency for Health Care Administration 2727 Mahan Drive, MS 14 Tallahassee, Florida 32308 1 Filed September 17, 2012 12:02 PM Division of Administrative Hearings 3. Conditional licensure status is imposed on the Respondent beginning on March 9, 2012, and ending on March 20, 2012. ORDERED at Tallahassee, Florida, on this wi 3 day id often Z , 2012. } i ViDenr fe , EA fing Elizabeth Dudek, Secretary Agency for Health Care Administration
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I CERTIFY that a true and correct, jy ot this Final Order was served on the below-named persons by the method designated on this / ay of , 2012. OOP; A Fe Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Finance & Accounting Facilities Intake Unit Revenue Management Unit (Electronic Mail) (Electronic Mail) Thomas J. Walsh II Anna Small, Esq. Office of the General Counsel Allen Dell Agency for Health Care Administration Counsel for Respondent (Electronic Mail) 202 South Rome Avenue, Suite 100 Tampa, Florida 33606 (U.S. Mail) Lingle F. Bogan Administrative Law Judge Division of Administrative Hearings (Electronic Mail)
The Issue Whether proposed rules of Respondent constitute invalid exercises of delegated legislative authority.
Findings Of Fact The Florida Highway Patrol (FHP), a division of Respondent, was accredited by the Commission On Accreditation For Law Enforcement Agencies, Inc. (CALEA) by notification received on November 16, 1996. For a period of five years prior to receipt of accredited status, FHP had been involved in that process. Among FHP actions taken in the process of accreditation was the revision of a policy manual for FHP members which took effect on February 1, 1996. The policy manual is issued to all FHP sworn officers and a copy is maintained at each FHP station. Chapter 3.03 of the policy manual contains the five policies challenged in this proceeding. FHP Policy 3.03.06 A 6 provides, as follows: Members will conduct themselves on and off- duty in such a manner so that their actions and behavior reflect favorably on the Division. Members will not engage in conduct which discredits the integrity of the Division or its employees, or which impairs the operations of the Department/Division. FHP policy 3.03.06 A 19 provides: Members will be courteous to the public. Members will be tactful in the performance of their duties, will control their tempers, and exercise the utmost patience and discretion and will not engage in argumentative discussions even in the face of extreme provocation. In the performance of their duties, members will not use coarse, violent, profane or insolent language or gestures, and will not express any prejudice concerning race, religion, politics, national origin, lifestyle or similar personal characteristics. FHP policy 3.03.03 A 33 provides: Involvement in political activities will not be permitted during members’ on-duty time. Political activities include soliciting or receiving any contribution for any political party or cause, or storing, posting, carrying or distributing political literature of any nature. Specifically, Florida Statutes provide that members shall not Hold or be a candidate for public or political office while in the employment of the State or take any active part in a political campaign while on-duty or within any period of time during which they are expected to perform services for which they receive compensation from the State. However, when authorized by the agency head and approved by the Department of Management Services, employees in the career service may be a candidate for or hold a local public office which involves no interest which conflicts or interferes with that state employment. Use authority of their position to secure for or oppose, any candidate, party or issue in a partisan election or affect the results thereof. Use any promise of reward or threat of loss to encourage or cause any employee to support or contribute to any political issue, candidate or party. Perform any police duty connected with the conduct of any election. Subsections (a)-(c) were taken from Section 110.233(4) and (5), Florida Statutes. FHP policy 3.03.03 A 50 provides: Members, while off-duty, will refrain from consuming intoxicating beverages to the extent that it results in impairment, intoxication, or obnoxious or offensive behavior which discredits them or the Division, or renders the members unfit to report for their next regular tour of duty. FHP policy 3.03.03 A 54 provides: Personal activities or associations of a member that knowingly create an apparent or real conflict of interest with the conduct of official duties are prohibited. A “conflict of interest” arises when a member’s private interest, whether of a financial nature or otherwise, conflicts with the member’s impartial conduct of official duties and responsibilities. Section 321.02, Florida Statutes, provides, in pertinent part, the following: [Respondent] shall set up and promulgate rules and regulations by which the personnel of the Florida Highway Patrol shall be examined, employed, trained, located, suspended, reduced in rank, discharged, recruited, paid and pensioned, subject to civil service provisions hereafter set out. Respondent provides citation to this statutory provision as the law implemented by the challenged regulations. This authority sufficiently supports adoption by reference, pursuant to 120.54 (l)(i), Florida Statutes, of the conduct regulations which form the subject of Petitioner’s challenge. Discipline for violation of the foregoing policies is applied to a member through application of Chapter 15-3, Florida Administrative Code, which contains Respondent’s disciplinary guidelines. Among those guidelines is listed the offense of violation of rules, regulations or policies. Following Petitioner’s filing on April 2, 1997, of the Petition To Determine The Invalidity Of Rules, Respondent published, on April 18, 1997, a Notice of Development of Proposed Rules in compliance with requirements of Chapter 120, Florida statutes. The text of the notice documented Respondent’s intent to adopt the FHP policy manual as an administrative rule.
The Issue Whether the Agency for Health Care Administration abused its discretion when denying Petitioner’s request for exemption from disqualification to work in a position of special trust.
Findings Of Fact STIPULATED FACTS On June 28, 2013, Petitioner was arrested, and charged with a single-count of aggravated child abuse in violation of section 827.03(2)(a), Florida Statutes, and a single-count of child abuse in violation of section 827.03(2)(c). On May 12, 2014, Petitioner pled and was adjudged guilty to the lesser included offense of contributing to the delinquency or dependency of a child, in violation of section 827.04(1). Section 435.04(2)(jj), Florida Statutes (2019),1/ provides that a violation of section 827.04(1) is an offense which disqualifies an individual from working in a position of special trust. In 2018 Petitioner sought employment as a customer service supervisor in the call center for Centene’s Sunshine State Health Plan (Sunshine State). Sunshine State has a contract with the Agency to provide managed care services. Petitioner, as a customer service supervisor for Sunshine State, had access to personally identifiable information and protected health information (sensitive information) of individuals serviced by the company. Sunshine State’s contract with the Agency requires that employees who have access to sensitive information must pass a level 2 background screening in order to remain employed by Sunshine State. Petitioner did not pass the background screening. By correspondence dated April 12, 2019, the Agency informed Petitioner that his request for exemption from disqualification was denied after consideration of the following factors: 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 [that Petitioner did not provide] clear and convincing evidence of rehabilitation as required by Florida Law. DISQUALIFYING OFFENSE The Agency, in considering Petitioner’s application for exemption, prepared an “exemption decision summary” which provides an overview of Petitioner’s criminal history. The summary states the following with respect to Petitioner’s disqualifying offense: Arrest Report: [Petitioner’s] [s]on, who was six and seven years old during the times of the incidences, has behavioral problems and particularly did not like his father’s girlfriend. [Petitioner] [u]sed varying methods to try and stop his son’s violent behavior, including . . . striking [the son] on multiple occasions, tying him to the table, and causing extensive bruising. . . . Applicant Statement: [Petitioner] admitted that he knew what was done [to his child] was not right; admitted to spanking his son using his hand, once with a belt, and an electrical cord the day before – mark left on thigh; admitted to using zip-ties to loosely secure his son for 20-30 minutes, to a table, when he would not be able to watch him. [Petitioner] denied using cold water or ice cubes; never addressed the use of duct tape; denied denying the child food; stated fold[ing] clothes was not a form of punishment, as everyone had chores; did not address the punishment of forcing the child to stand in the corner; admitted to having child perform pushups before he [started] spanking him. [Petitioner] admitted the child slept in the kitchen, as there was no other place he could sleep where he was able to watch [the child]. [Petitioner] explained that the child also had behavioral issues in school and would frequently have to be picked up from school; stated he had to go on FMLA to protect his job due to having to leave work so often. [Petitioner] explained through all of the help he sought, no one ever offered an explanation for his son’s behavior (i.e. autism, Asperger’s, etc.). DCF removed the children, including the victim and the other children in the home at the time. [Petitioner] voluntarily gave up his rights to said child.[2/] NON-DISQUALIFYING INTERACTIONS WITH THE CRIMINAL JUSTICE SYSTEM Petitioner has no reported interaction with the criminal justice system subsequent to the occurrence of the disqualifying offense. In May 2011, Petitioner was cited for driving under the influence of alcohol (DUI). There is no evidence that alcohol consumption was a factor when Petitioner committed the disqualifying offense. EVIDENCE OF SUGGESTION OF REHABILITATION Petitioner, in support of his suggestion of rehabilitation, offered five letters of reference. Each letter generally attests to Petitioner’s good character and work ethic. One of the letters of reference is from Dr. Frankie Small, Ed.D., Ed.S., MSW, LCSW. Dr. Small’s letter dated November 2, 2018, advises that she provides once-weekly family therapeutic services to Petitioner, his domestic partner, and their five children. Dr. Small indicates that during the year or so that she treated Petitioner, he impressed her as being a supportive and caring individual who has a positive attitude towards his five children. In considering the letter, it is noted that Dr. Small makes no reference to Petitioner’s disqualifying offense, there are no treatment notes provided, and there is no mention of the specific issues which necessitated the utilization of her services by Petitioner. These omissions make it difficult to assess whether Petitioner has meaningfully addressed his personal issues which contributed to, or caused him to commit, the disqualifying offense. In support of his suggestion of rehabilitation, Petitioner also provided to the Agency a copy of a January 23, 2019, psychological evaluation prepared by Dr. Tracey Henley. Dr. Small referred Petitioner to Dr. Henley for neuropsychological evaluation. Dr. Henley’s report notes that Dr. Small did not include with the referral any of Petitioner’s mental health records. Dr. Henley’s report also notes that Petitioner, as part of the proceedings related to the disqualifying offense, was treated by forensic psychiatrist Dr. Michael Mayor, who diagnosed Petitioner “with an adjustment disorder due to family turmoil.” The instant record does not include any treatment records from Dr. Mayor. Finally, Dr. Henley recommended that that Petitioner receive individual counseling to address his “symptoms of emotional distress and to develop appropriate coping skills.” There is no evidence that Petitioner either received, or is receiving, individual therapy as recommended by Dr. Henley. As previously noted, Petitioner was arrested on June 28, 2013, for the disqualifying offense. As part of the adjudicatory process associated with the disqualifying offense, Petitioner, between June 2013 and May 2014, completed a 13 session “Nurturing Dads Course,” started, and eventually completed, a group course in “Anger Management and Emotional Management with Intensive Parenting,” and performed 50 hours of community service. Subsequent to the disqualifying offense, Petitioner, in December 2014, earned a Bachelor of Applied Science degree from St. Petersburg College.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, the Agency for Health Care Administration, enter a final order denying Petitioner’s request for exemption. DONE AND ENTERED this 17th day of January, 2020, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 17th day of January, 2020.
The Issue The issue in this case is whether the Petitioner is entitled to an award of costs and attorney's fees pursuant to Section 57.111, Florida Statutes.
Findings Of Fact In their Joint Stipulation, the parties have stipulated to the following facts: Dr. Fernandez is a physician licensed in the State of Florida since 1973. He is a small business party as defined in Section 57.111(3)(d)(1), Florida Statutes. Dr. Fernandez was the subject of a disciplinary action by AHCA on behalf of the Board of Medicine. The action was commenced by an administrative complaint being filed by AHCA. It was resolved by a Consent Agreement adopted by the Board of Medicine as a Final order on December 30, 1999. The relevant terms of the Consent Agreement included Dr. Fernandez's paying a $5,000 fine and attending continuing education classes; and while denying liability, the Petitioner neither admitted nor denied the facts in the administrative complaint. There is no mention of the reporting of the Consent Agreement in either the National Practitioner Data Bank ("NPDB") or the Healthcare Integrity and Protection Data Bank ("HIPDB"). Subsequent to the action by the Board of Medicine, on January 7, 2000, the Respondent submitted a report of the disposition of Dr. Fernandez's disciplinary action to the HIPDB. HIPDB was established by Pub Law 104-191 enacted in 1996. Federal legislation establishing HIPDB was enacted in August 1996 with instructions to the Secretary of Health and Human Services ("HHS") to adopt rules implementing the law. Draft rules were published in October 1998 with final rules being adopted in October 26, 1999. The Guidebook was released in February 2000. Dr. Fernandez objected to the report to HIPDB on February 3, 2000, but was advised by the Respondent in a letter dated February 23, 2000, that his discipline was correctly reported "based on Federal Register 64 CFR Part 61: Healthcare Fraud and Abuse Data Collection Program: Reporting of Final Adverse Actions; Final Rule." On March 6, 2000, the Petitioner's counsel wrote the Respondent an 8-page letter requesting the report be removed from HIPDB. The letter set forth extensive legal analysis based in large part on the Federal Register citation in the Respondent's February 23, 2000, letter with attachments in support, and included that disciplinary action involving only a fine and continuing education courses was not reportable to HIPDB under the prevailing statutes and the administering instructions issued by the federal agency in charge of operating the HIPDB. Also in the letter, the Petitioner put the Respondent on notice that the Petitioner was going to file Petitions for Administrative Hearings if the Respondent did not respond by March 13, 2000. The Respondent did not contact Petitioner until after March 13, 2000. The Petitioner filed a Petition for Formal Administrative Hearing with the Board of Medicine on March 16, 2000. On the same day, the Petitioner filed a challenge to an alleged unpromulgated rule of the Respondent regarding the reporting of disciplinary actions to HIPDB where no liability was admitted. The cases were DOAH Case Nos. 00-1562 and 00- 1253RU, respectively. In DOAH Case No. 00-1562, the Petitioner requested the Report be rescinded or, alternatively, the Consent Agreement be rescinded to allow the Petitioner the opportunity to argue the merits of the case. In DOAH Case No. 00-1253RU, the Petitioner requested that the Administrative Law Judge ("ALJ") issue a Final Order determining that the Respondent issued an unpromulgated rule in violation of Section 120.54(1)(a), Florida Statutes, that the Respondent immediately discontinue reliance upon the statement as a basis for agency action, and that the Report be rescinded. The Department was seeking clarification of the issues surrounding the reporting of discipline as demonstrated by Exhibits A and B. By letter dated March 17, 2000, the Respondent informed the Petitioner that it had removed the report of Dr. Fernandez's disciplinary action from HIPDB. To confirm the Respondent's assertion, the parties agreed that Dr. Fernandez would initiate a "self-query" to the HIPDB to verify removal of the report. On May 15, 2000, the Petitioner's counsel received confirmation that a query to the HIPDB would not reveal the existence of an expunged report. On April 5, 2000, the Respondent filed a Motion to Dismiss for Mootness because relief had been granted to the Petitioner since the disciplinary report had been removed from HIPDB on March 17, 2000. On September 26, 2000, the Respondent's Motion to Dismiss was granted by the ALJ in DOAH Case No. 00-1562. The Petitioner filed an Application for Attorney's Fees and Costs on July 14, 2000.
