The Issue The issues in this case are: (1) whether Petitioner has been rehabilitated from her disqualifying offense(s); and, if so, whether the intended action to deny Petitioner's exemption request pursuant to section 435.07(3), Florida Statutes (2015),1/ would constitute an abuse of discretion by Respondent.
Findings Of Fact Based on the evidence adduced at the hearing, and the record as a whole, the following material Findings of Fact are made: Petitioner was a 52-year-old female who sought to qualify, pursuant to section 435.07, for employment in a position of trust as a direct service provider for physically or mentally disabled adults or children. This position requires the successful completion of a Level 2 background screening. See § 435.04, Fla. Stat. APD is the state agency responsible for licensing and regulating the employment of persons in positions of trust. Specifically, the mission of the Agency includes serving and protecting the vulnerable population, including children or adults with developmental disabilities. In conformance with the statute, Petitioner was screened by APD since she applied for a position of special trust as a direct service provider of APD. The screening revealed, and the parties stipulated at the hearing, that Petitioner was convicted of the following disqualifying offenses: Theft by Shoplifting--Felony--1987 Theft by Shoplifting--Felony--1987 Forgery (4 counts)--Felonies--1993 Theft by Shoplifting--Felony--1993 Battery-Family Violence--Misdemeanor-- 1996 Forgery--Felony--1998 The stipulation also included the fact that 17 years have elapsed since the last disqualifying offense was committed. The screening revealed, and the parties also stipulated at the hearing, that Petitioner was arrested or convicted of the following non-disqualifying offenses: Simple Battery--Misdemeanor--arrested-- dismissed--1987 Theft by Conversion--convicted--1993 Driving Under the Influence--convicted-- 1994 Criminal Trespass--Misdemeanor-- convicted--2000 The stipulation also included the fact that 15 years have elapsed since the last non-disqualifying arrest or conviction was committed. Rosita Martin At the time of the hearing, Petitioner was unemployed. She had last been employed at Martin's Group Home as a caregiver of vulnerable children who had disabilities or behavioral problems. Her duties included giving out medicines, assisting clients with bathing, and taking kids on outings and to church. She also helped to cook. She explained that most of her convictions occurred during a period of her life when she was in an abusive marriage and suffered from depression. She acknowledged that, during that time period, she was abusing drugs (cocaine) and alcohol. During that same period of time, she admitted that she had purchased and also possessed marijuana. She explained that her battery conviction in 1996 related to a domestic dispute with her husband. She called the police, and they took them both to jail. Although she said she was defending herself, she admitted that she had been convicted and found guilty of battery. Petitioner testified that she is a "good girl now." She attends church every Sunday and "left her problems with drugs." She got sick and tired and "told God to take it away from me and he did." Petitioner testified that she has not used any type of illegal drugs for 20 years. Her sister operates four group homes for children with disabilities. Petitioner worked at one of the homes, and her sister wrote her a letter of support in this case. The evidence was undisputed that she received "excellent" evaluations while at Martin Group Home. Currently, she lives with her daughter, and a granddaughter who is two years old. As a result of one of Petitioner's various felony convictions, she testified that she was ordered to attend in- house drug treatment at the Willingway Hospital in Statesboro, Georgia. Upon questioning by the undersigned, Petitioner stated that she was in rehabilitation at the hospital for "like 6 months" back in the 1990's.2/ The various letters of support and reference provided by Petitioner came from her relatives. These included her sister and father. The record reflects that Petitioner attended and successfully completed numerous training courses (e.g. medicine administration, CPR training, blood borne pathogens, HIV safeguards, etc.) that related to the caretaker work she performs.3/ Other than two certificates for domestic violence training in 2011 and 2012, the other training and educational completion certificates did not relate to treatment or counseling programs related to her drug use, alcohol use, psychological counseling, or financial training-–the personal issues she struggled with in her past when the disqualifying events took place. The evidence reflected that she had numerous and chronic driving violations, pertaining primarily to failing to pay road tolls. She claimed that all of these toll violations occurred when her daughter was driving her car.4/ On cross-examination, Petitioner conceded that she failed to provide a detailed version of the facts or a full explanation for each criminal offense listed on her exemption form.5/ Petitioner claimed that she was "new at this" and did not understand the details she was supposed to provide. For the criminal offenses involving theft of property, she claimed on the form, and testified, that there was "no harm" to the victim. Again, she claimed some confusion and stated that she thought that they were talking about harm in the "violent" sense. She was also cross-examined about the six-month drug treatment program that she testified she had attended at Willingway Hospital. She was asked why she did not provide that information to the Agency in the exemption form or provide the agency with a copy of a completion certificate. Inexplicably, she was unable to provide a satisfactory explanation during the hearing for why she did not disclose the drug treatment program on the exemption questionnaire. She claimed that since the court had ordered her into treatment, she did not think it was necessary to specifically list or describe it. She was asked why she was not able to provide a letter of recommendation from her church pastor. She did not provide an adequate explanation and simply stated that she attends church but is not a church member, that she just goes to church there every Sunday. She worked briefly at a company called Best Walks of Life. Her supervisor was her son, Mr. Walker. No details were provided concerning what she did there. She acknowledged that much of her criminal activity arose from or was related to problems with monetary or financial issues; yet, she conceded that she had not taken any financial courses or other classes to obtain financial or budgeting training or counseling. After working for her sister at Martin Group Home, she has not made any attempts to work in any other places or group homes since leaving. Darnisha Johnson Petitioner is her mother. The witness is 24 years old and lives with her daughter at her mother's house. She testified that her mother is "a great person today. She's great." She also stated that her mother is a "much better person" then when she was involved in criminal activity.6/ She also felt that her mother is not using any drugs now. She acknowledged that she has a car, but that it is in her mother's name. In the context of who pays the bills today and supports her financially, she characterized her mother's role as being her "support system." She also admitted that any failures to pay tolls while driving the vehicle registered in her mother's name were her responsibility. Molita Cunningham She is a friend of Petitioner's. She works as a certified nursing assistant and is certified as such with the State of Florida. She has known Petitioner for a little over three years and met her at a Family Dollar store. She wrote a letter of support for Petitioner. She was not aware of any facts to suggest that Petitioner was engaged in criminal activity, drug abuse, or abuse of her clients in any manner. She acknowledged she had a background similar to Petitioner's. She was "out there in the streets" and is a convicted felon. Other than being a general character witness, the witness offered no substantive evidence touching upon Petitioner's rehabilitation from the disqualifying offenses. Evelyn Alvarez Ms. Alvarez is employed with the Agency as the regional operations manager for the Southern Region.7/ She obtained a master's degree in public administration from Florida International University in 2000. APD serves individuals that have specific developmental disabilities. The disabilities include intellectual disabilities, autism, cerebral palsy, spina bifida, and the like. Her role in this case was to review the background information gathered by both the Department of Children and Families and APD on Petitioner. After her review, the package of information was sent to an exemption committee. That committee then independently reviewed the exemption package and made its own recommendation to the Director of APD. Before deciding on the exemption request, the Director reviewed both Ms. Alvarez's recommendation and the recommendation of the exemption committee. She correctly acknowledged that the applicant for an exemption from disqualification must prove rehabilitation by clear and convincing evidence. She also correctly noted that the Agency should consider the circumstances of the disqualifying offense(s), the nature of the harm caused to any victims involved, the history of the employee since the incident and any other evidence indicating that the employee will not present a danger to the vulnerable or disabled adults or children they serve. APD was concerned that Petitioner failed to follow directions and provide the details for each disqualifying criminal event.8/ Also, Ms. Alvarez was concerned that Petitioner's failure to acknowledge that someone was "harmed" by the theft or forgery crimes ignores that there were victims involved, and the response fails to show an acceptance of responsibility for the crime(s). Ms. Alvarez testified that the Agency has no idea what happened with each of the disqualifying events, or of any circumstances that were happening at the time that would allow APD to understand why Petitioner would commit the offenses, and that there was no acknowledgment of any harm to any victims. In the opinion of Ms. Alvarez, the training certificates provided by Petitioner were not persuasive evidence of rehabilitation. More specifically, they were only indicative of employment training and did not include anything in terms of addressing Petitioner's substance abuse issues, her inability to manage her finances, or her involvement in acts of domestic violence. In APD's opinion, the lack of any treatment or professional counseling for those issues militated against a finding of rehabilitation. Likewise, Petitioner did not describe her alleged six- month, in-house drug rehabilitation program in the exemption application, nor was there any certificate of completion of drug treatment provided. APD concluded that Petitioner used poor judgment during an incident when she invited her friend, Ms. Cunningham, to spend a day on the job at Martin Group Home with Petitioner's disabled and vulnerable children. APD felt that this was a breach of client confidentiality, HIPAA rights, and may have put some of the children at risk around a visitor who did not have a background check or clearance to be at the facility. There were no professional references or letters of support offered by Petitioner from past employers (other than from group homes involving her relative). Likewise, there were no letters attesting to her good moral character from her church or other faith-based relationships she may have established. Ms. Alvarez testified that the reason the Agency wants letters of reference from individuals who do not have a conflict of interest is to show her character. Examples of letters of reference would be from a pastor or from an organization where someone had volunteered. The letters provided by Petitioner, while useful, did not reflect an impartial view of her character.9/ The Agency determined that it had no basis of reference for the character of Petitioner due to her failure to provide more impartial references.10/ In Ms. Alvarez's opinion, after reviewing the completed application, Petitioner had not provided any evidence, and APD had no knowledge, to support a finding of rehabilitation. Furthermore, APD did not have any knowledge of any financial planning or budgeting courses that Petitioner may have taken to show rehabilitation in the area of her finances. APD considered it significant during its review that Petitioner had been charged with driving while license suspended ("DWLS") (a criminal traffic offense) in 2012 and again in 2013, less than two years before the application. (Both DWLS offenses were subsequently dismissed.) Respondent's Exhibit 9, Petitioner's Florida Comprehensive Case Information System driving record, reflects in excess of 20 failures to pay required highway tolls in a two-year period from 2012 to 2013.11/ Petitioner did not provide any explanation for her driver's license problems to the Agency at the time of her Exemption Application. The Agency had no knowledge of the facts and circumstances surrounding the DWLS citations. Ms. Alvarez testified that traffic offenses and driving habits are important considerations, since direct service providers are often required to transport persons with developmental disabilities In essence, APD concluded that Petitioner had fallen short of her burden of showing rehabilitation by clear and convincing evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Persons with Disabilities confirm its previous intended denial and enter a final order denying Petitioner's application for an exemption from disqualification. DONE AND ENTERED this 27th day of July, 2016, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of July, 2016.
The Issue The issue is whether the medical license of Ahmed M. Elmariah, M.D., should be revoked or otherwise penalized based on the acts alleged in the Administrative Complaint.
Findings Of Fact Ahmed M. Elmariah is a licensed physician in Florida, holding license number ME 0027974 issued February 11, 1976. Dr. Elmariah practices in Panama City, Florida, at 1018 Harrison Avenue. Patient E.G. saw Dr. Elmariah during April or May, 1988, and thereafter until July 18, 1988. On July 18, 1988, at approximately 1:00 p.m., E.G. called Dr. Elmariah's office and requested that his medical records be sent to another doctor. He was told to come in and sign a release form that afternoon. At about 4:30 p.m. that day, E.G. went to Dr. Elmariah's office and was told by the office person, Lisa, that the medical records would not be sent because Dr. Elmariah had instructed that the records not be released. E.G. then verbally requested that the records be given to him. The office personnel refused to give him the records. E.G. talked to Dr. Elmariah personally and he would never give a reason for his refusal to release E.G.'s medical records. E.G. finally filed a replevin action and filed a complaint with DPR. DPR Investigator William Taylor attempted to serve a subpoena for E.G.'s records. After several attempts by DPR to serve the subpoena were futile, the Sheriff's Office served the subpoena on November 16, 1988. The subpoena directed that the medical records of E.G. be made available for inspection and copying by a DPR Investigator at Dr. Elmariah's office on November 22, 1989. Mr. Taylor called Dr. Elmariah on November 22, 1988, to make sure that the doctor was going to honor the subpoena. Dr. Elmariah's wife said the records had been taken to Tallahassee on November 21, 1989, and would not be available to Mr. Taylor. Mr. Taylor was also told that Dr. Elmariah would not be in his office to speak to Mr. Taylor. Mr. Taylor checked with DPR in Tallahassee and determined that the records had not been delivered. He then called Dr. Elmariah's office again and was told that Dr. Elmariah was in, but would not speak to him. Mr. Taylor was told that Dr. Elmariah said that the documents would not be available and the subpoena would not be honored. Dr. Elmariah never furnished the requested medical records of E.G. and the subpoena was never honored. Dr. Elmariah has been the subject of disciplinary action by the Board of Medicine in the past. On October 14, 1988, the Board of Medicine issued its Final Order in DOAH Case No. 86-4527 (DPR Case Nos. 0053824 and 0057164). The Final Order was filed on October 24, 1988, with the Department Clerk. The Final Order suspended Dr. Elmariah's license to practice medicine in the State of Florida for at least one year and conditioned reinstatement on Dr. Elmariah's appearance in front of the Board of Medicine to demonstrate his ability to safely engage in the practice of medicine. These two previous cases involved Dr. Elmariah's attempts to get hospital privileges by a pattern of fraudulent misrepresentations to hospitals. Dr. Elmariah was served a copy of the Final Order by certified mail on November 4, 1988. On November 5, 1988, DPR Investigator Alfred Clum went to Dr. Elmariah's office to serve a subpoena and to pick up Dr. Elmariah's license pursuant to the suspension order. Mr. Clum was first told that Dr. Elmariah was in the office. After Mr. Clum identified himself and the purpose for his visit, he was told that Dr. Elmariah was not in and that he would not see anyone without an appointment. The office person, Lisa Sims, refused to accept the subpoena and the suspension documents. On November 8, 1988, DPR Investigator Paul Bratton went to Dr. Elmariah's office to deliver a letter from Mr. Taylor regarding the suspension. He arrived at 9:52 a.m. and found a note on the door saying the office was closed. The door was open, so Mr. Bratton entered the office. He served the suspension documents on the woman at the desk. She tried to get him to take the documents back and he refused. She refused to give her name. When he left, the woman followed him to the door and threw the documents out the door and down the steps. On November 16, 1988, Mr. Clum returned to Dr. Elmariah's office to pick up his license. He was told that Dr. Elmariah was not there. He tried to leave the documents with the receptionist, but she refused to accept them. He left the documents, including the Final Order, on the woman's desk. Dr. Elmariah filed an Emergency Motion to Stay Final Order with the Board of Medicine. The Board of Medicine considered the Emergency Motion to Stay Final Order on December 3, 1988. Dr. Elmariah was advised by letter dated November 30, 1988, that the meeting would occur for consideration of the motion. Further, the November 30, 1988, letter advised Dr. Elmariah that "unless and until you have an order from the Court or from the District Court of Appeal granting you a stay, your license to practice medicine is suspended. Continuing to practice medicine on a suspended license could result not only in additional disciplinary proceedings against your license, but to criminal penalties as well." After consideration at its December 3, 1988, meeting, the Board of Medicine denied the Motion to Stay Final Order. The order denying the stay was entered on December 20, 1988. Dr. Elmariah then filed several more motions-- Verified Motion for Rehearing and Reconsideration of Order on Motion to Stay the Final Order; Verified Motion and Affidavit for Disqualification of Attorney Daniel and All Participating Attorneys for Petitioner; and Verified Petition and Motion for Rehearing and Reconsideration and to Rescind, Relieve from and/or Modify Final Order. These motions were considered by the Board at its February 4, 1989, meeting and all were denied by written order dated March 25, 1989. Dr. Elmariah filed a Motion for Stay with the District Court of Appeal, First District, on April 6, 1989. The Court denied the motion for stay by written order dated May 31, 1989. Patient L.E. was a patient of Dr. Elmariah's during 1988 and 1989. L.E. saw Dr. Elmariah during January, February, and March, 1989, while Dr. Elmariah's license was suspended. Dr. Elmariah never told L.E. that his license was suspended and he continued to see L.E. as a patient at his office. Patient W.W. was a patient of Dr. Elmariah's and last saw the doctor in February or March, 1989. The visits to Dr. Elmariah, at his office, were regularly scheduled visits at two week intervals. Dr. Elmariah never told this patient that his license was suspended. Patient G.L.M. was also a patient of Dr. Elmariah at his office in Panama City. He saw Dr. Elmariah on December 15 and 22, 1988, and January 19, 1989. Dr. Elmariah never told him that his license was suspended. On December 13, 1988, Dr. Elmariah was arrested for contempt and brought before the Honorable Thomas R. Ellinor, County Court Judge, in the replevin action filed by E.G. to get his medical records. The transcript of that contempt hearing clearly shows that Dr. Elmariah knew that his license had been suspended and knew that no stay had been issued. The contempt arose from Dr. Elmariah's failure and refusal to appear for duly noticed hearings and to respond to subpoenas. The judge made Dr. Elmariah's duty to appear at hearings very clear and Dr. Elmariah acknowledged that he understood his obligation in that regard and would appear in the future. Dr. Elmariah has engaged in a flagrant course of conduct to evade and avoid the lawful orders, subpoenas and notices in gross disregard for the laws of the State of Florida and in gross disregard for the obligations imposed upon him for the privilege of practicing medicine in this state. He has actively resisted enforcement of the Final Order suspending his privilege and license to practice medicine. He has openly and contemptuously refused to cease practice pursuant to the suspension order and he has refused to surrender his medical license.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Professional Regulation, Board of Medicine, enter a Final Order finding Ahmed M. Elmariah, M.D., guilty of all violations charged in the Administrative Complaint, and revoking the medical license of Ahmed M. Elmariah, M.D. DONE and ENTERED this 22nd of August, 1989, in Tallahassee, Florida. DIANE K. KIESLING Division of Administrative Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of August, 1989. COPIES FURNISHED: Ahmed M. Elmariah, M.D. Post Office Box 16473 Panama City, FL 32406-1473 Robert D. Newell, Jr. Attorney at Law 817 North Gadsden Street Tallahassee, FL 32303-6313 Kenneth D. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Dorothy Faircloth Executive Director Board of Medicine Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792
Findings Of Fact At all times relevant hereto, respondent, Jack Michael Schwartz, held a life and health agent and ordinary combination life including health agent license issued by petitioner, Department of Insurance and Treasurer. Respondent presently resides at 2027 Northeast 172nd Street, North Miami Beach, Florida. On November 30, 1981 respondent submitted an application to petitioner for licensure as an ordinary life including disability agent. Question 15 on the application asked the following: "Have you ever been charged with or convicted of a felony?" Respondent answered "No." The application was subsequently approved by petitioner in February, 1982 after respondent successfully completed a written examination. On June 18, 1985 respondent submitted an application to petitioner for licensure as a general lines agent. Question 11 on the application asked the following question: "Have you ever been charged with or convicted of a felony?" Respondent answered "No." During the course of a routine background check of Schwartz, petitioner later learned that respondent had pled guilty to grand larceny by fraudulent representation on August 3, 1977 in circuit court in and for Broward County, Florida. The offense is a felony. Schwartz was thereafter placed on probation for five years under the direct supervision of the Department of Offender Rehabilitation. He was released from probation after two and one-half years. Schwartz acknowledged that he had pled guilty to a felony. However, after his probation was ended, Schwartz interpreted advice from his probation officer to mean he did not have to acknowledge on job or licensure applications that he had been convicted of a felony. He had no further explanation for his answers.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the license and eligibility for licensure of respondent be REVOKED. DONE and ORDERED this 15th day of September, 1986, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of September, 1986. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-1809 PETITIONER: Covered in finding of fact 4. Covered in finding of fact 2. Covered in finding of fact 2. Covered in finding of fact 2. Covered in finding of fact 3. Covered in finding of fact 3. COPIES FURNISHED: Honorable Bill Gunter Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32301 Wilbur W. Anderson, Esquire 413-B Larson Bldg. Tallahassee, Florida 32301 Jack Michael Schwartz 2027 N.E. 172nd Street North Miami Beach, Florida 33162
Findings Of Fact On October 13, 1993, Respondent filed an application to change the ownership of an ACLF known as Kadima Manor. Respondent also applied to operate the facility as its administrator. The facility is situated at 6750 West Flamingo Way South in St. Petersburg, Florida. Petitioner denied Respondent's ACLF application by letter dated March 23, 1994, substantially on the basis that: Respondent entered a plea of no contest to an offense of abuse or neglect of a disabled or aged person and; Respondent failed to provide complete and accurate background information in the application for licensure. Section VIII of the application seeks information about an applicant's "Criminal Abuse History". Section VIII(a) of the application asks the following question: "Has any owner, administrator, partner, or director ever been arrested, adjudicated, or convicted of a crime involving injury to persons, or financial or business management (e.g. assault, battery, embezzlement or fraud)?" In response to the question in Section VIII(a) of the application, Respondent answered "no". Although Respondent answered "no" to the question in Section VIII(a) of her ACLF application, Respondent thought that she answered the question truthfully. Respondent was arrested by the St. Petersburg Police Department on February 8, 1977, on the charge of petty larceny. The disposition of that arrest is unknown and Petitioner did not rely on the 1977 arrest as a basis for the denial letter relating to Respondent's application. On May 8, 1991, Respondent was arrested by the Pinellas County Sheriff's Office. Pursuant to that arrest, a two-count Information was filed alleging that Respondent operated an ACLF without first being licensed and that she abused or neglected aged or disabled persons. In the criminal cases in 1991, Respondent challenged the charges. As to the first count relating to operating an ACLF without first being licensed, the charge was dismissed. On September 16, 1991, Respondent entered a plea of nolo contendere to the offense of abuse or neglect of aged or disabled persons, Winona Sill and/or Carolyn Poole, a misdemeanor. Respondent entered a plea of nolo contendere to the charge of abuse or neglect of an aged person based upon the advice of legal counsel that she would not have a criminal record and that the "no contest" plea would not adversely affect her or her business. Following Respondent's entry of the "no contest" plea, Respondent was ordered to pay court costs of $250.00 only; the court withheld adjudication of guilt and no fine or probation was imposed. Respondent has never been convicted of a crime involving injury to persons, or financial or business management. Concurrently with law enforcement, HRS adult Protective Services conducted its own investigation relating to the incidents in 1991. Upon completion of FPSS Reports 91 Respondent as the perpetrator of abuse or neglect of two aged or disabled adults. Respondent challenged the classification and sought to have her name expunged from the reports. Following a formal hearing before the Division of Administrative Hearings, HRS issued a Final Order on February 17, 1993, which expunged Respondent's name from the Abuse Registry and changed the classification of the reports to "unfounded". In reviewing ACLF applications, Petitioner obtains and relies on criminal arrest records obtained from the Florida Department of Law Enforcement (FDLE). Petitioner requested that Respondent provide certified copies of the criminal charges involving the 1991 incidents. Respondent timely submitted the requested information. In addition Petitioner is required to be screened for prior confirmed abuse, neglect or exploitation reports from the Florida Protective Services System Abuse Registry. Technically, Respondent did not disclose the fact that she was arrested in 1991 for a crime involving injury to persons as she was asked in question VIII(a) on the ACLF application. However, the question on the form was not clear and did not track the statutes or the rule. There was no evidence that the failure to disclose was a conscious effort on Respondent's part to withhold information relating to her arrest in 1991. Respondent provided all of the related information regarding the abuse allegations, including the fact that those records were expunged in the HRS files. She acted upon the advice of legal counsel when she did not disclose the "no contest" plea. On each occasion that Petitioner asked for additional information regarding her criminal history, Respondent timely responded and provided the information requested. Respondent completed the required courses and other requirements to be an ACLF administrator, including the ACLF Core Education Program on or about October 5, 1993. Respondent did not intend to fail to fully disclose her criminal history. In the one instance where she answered "no" to the criminal arrest history, Respondent considered that she completely and truthfully answered question VIII(a). Respondent attached to the original application a copy of the Division of Administrative Hearings Recommended Order which called for the expungement of her name for the abuse registry and changing the classification of the report to unfounded. She also attached other information which disclosed the 1991 criminal charges. Respondent intended to show that she had been arrested but, by administrative action, her name had been cleared and her name expunged. Respondent has demonstrated that she is of suitable character and competency to be an owner and administrator of an ACLF.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner enter a final order granting Respondent's application for licensure to change the ownership and operate an adult congregate living facility, subject to the payment of the requisite fees and other licensing requirements. DONE AND ENTERED this 12th day of September, 1995, in Tallahassee, Florida. DANIEL M. KILBRIDE 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 12th day of September, 1995. APPENDIX Petitioner's proposed findings of fact Accepted in substance: paragraphs 1, 2, 3, 4, 5, 6, 8 (in part. Rejected as contrary to the greater weight of evidence; paragraphs 7, 8 (in part. Respondent's proposed findings of fact Accepted in substance: paragraphs 1 (in part), 2 (in part), 3 (as modified), 4 (as modified), 5 (as modified), 6 (as modified), 10 (as modified), 11 (as modified), 15 (as modified), 17 (in part), 18 (as modified), 19 (as modified), 23 (as modified). Rejected as subsumed or irrelevant and immaterial paragraphs 1 (in part), 2 (in part), 7, 8 (argument), 9, 12, 13, 14, 16 (argument), 17 (in part), 20, 21, 22, 23. COPIES FURNISHED: Thomas W. Caufman, Esquire Agency for Health Care Administration 6827 North Dale Mabry Highway, Unit 100 Tampa, Florida 33614 Dale L. Gross, Esquire P.O. Box 40041 St. Petersburg, Florida 33741 Sam Power, Agency Clerk Agency for Health Care Administration Fort Knox Bldg. 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308-5403 Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32309
The Issue The issues in this case are whether Petitioner has demonstrated, by clear and convincing evidence, that he is rehabilitated from a disqualifying offense, and, if so, whether Respondent’s intended action to deny Petitioner’s application for an exemption from disqualification is an abuse of discretion.
Findings Of Fact Mr. Mack is a 36-year-old male who desires to return to work for Allshouse Supported Living Services, Inc. (Allshouse), as a direct service provider to APD clients with developmental disabilities. Allshouse provides community-based services to APD clients with developmental disabilities. Mr. Mack was employed by Allshouse from October 2009 through October 2014. When Mr. Mack began working for Allshouse, he was licensed by the Department of Health, Board of Nursing, as a certified nurse assistant (CNA), and he provided home health care to APD clients pursuant to his CNA license. More recently, Mr. Mack worked for Allshouse as a supported living coach. On October 23, 2014, Mr. Mack completed an affidavit of good moral character for Allshouse. The affidavit--an APD form-- identifies disqualifying offenses pursuant to the employment screening laws in chapter 435, Florida Statutes, and instructs employees to select one of three responses to sign: that the employee has no disqualifying offenses, and therefore, meets the good moral character standard; that the employee’s record “may contain one or more” disqualifying offenses; or that the employee is a licensed physician, licensed nurse, or other professional licensed by the Department of Health and that the employee will be providing services within the scope of his or her licensed practice. Mr. Mack signed the option acknowledging that his “record may contain one or more” of the enumerated disqualifying offenses. In 2014, Mr. Mack was no longer licensed as a CNA, and was working for Allshouse as a supported living coach.2/ Based on Mr. Mack’s disclosure, the Department of Children and Families (DCF) conducted a Level II background screening. Criminal history record checks were performed at the state, national, and local levels. These record checks would identify records related to any criminal offenses, whether disqualifying offenses or not. The results would show arrests that did not culminate in charged criminal offenses, as well as arrests leading to charges and the ultimate disposition of those charges. The screening results for Mr. Mack showed one criminal offense in the state records; the same criminal offense was also shown in the local law enforcement agency’s records. No other criminal history of any kind was reported. The records show that 13 years ago, on October 29, 2002, Mr. Mack was arrested and charged with grand theft, a third degree felony, pursuant to section 812.014(2)(c)1., Florida Statutes (2002). The case was disposed of on October 16, 2003, when the Circuit Court for the Sixth Judicial Circuit in Pinellas County accepted Mr. Mack’s guilty plea to the single charge. The court withheld adjudication, imposed a two-year term of probation, ordered payment of $750.00 as restitution, imposed a $50.00 fine, and assessed $400.00 in court costs. Mr. Mack’s 2002 offense to which he pled guilty is a disqualifying offense pursuant to section 435.04(2), Florida Statutes.3/ By letter dated October 30, 2014, DCF informed Mr. Mack that he was ineligible for continued employment with Allshouse because of the 2002 disqualifying offense. Mr. Mack was informed that he could seek an exemption from disqualification, which would be granted if clear and convincing evidence was presented to DCF “to support a reasonable belief that a person is of good moral character and that the individual does not present a danger to the safety or well being of children or the developmentally disabled.” DCF sent a similar letter on October 28, 2014, to inform Allshouse that Mr. Mack was not eligible for continued employment unless and until he applied for an exemption and proved his rehabilitation to DCF.4/ In response to these letters, Mr. Mack’s employment with Allshouse was immediately terminated. The Exemption Application, After Remaining Court Costs Were Paid Upon receipt of the DCF letter, Mr. Mack immediately took steps to apply for an exemption. On November 4, 2014, he sent a letter requesting the necessary forms and instructions to Sandra Wesley with the DCF background screening unit in Tampa. However, on November 24, 2014, Ms. Wesley responded that DCF had located court records indicating that Mr. Mack still owed some costs, fines, and/or fees imposed for his 2002 offense. Ms. Wesley informed Mr. Mack that he was not eligible to apply for an exemption until he paid the balance and provided proof of payment. At hearing, Mr. Mack credibly testified that he believed he had paid all court-ordered costs, fines, or fees that were due, because when the court granted a motion for early termination of his probation in late 2004, the court also entered an order waiving outstanding court costs and fees. Mr. Mack’s testimony was credible, and his belief that he had previously satisfied all court-imposed monetary conditions was reasonable. The court docket contains the following entry on October 14, 2004: “Outstanding cos [presumably, costs] fees waived $390.00.” Apparently, Mr. Mack owed more than $390.00 due to a separate assessment to pay fees to the public defender, so that “waived” may have really meant “partially waived.” Nonetheless, despite his reasonable belief that he had satisfied all monetary conditions more than a decade earlier, as soon as Mr. Mack was informed by DCF that he may still owe some court costs, fines, and/or fees, he went to the courthouse and paid the amount that he was told was still due. The court clerk issued a Satisfaction of Judgment–Fine/Cost, providing that the balance due for the court-imposed “fine and/or costs” in connection with the 2002 offense was “paid and satisfied in full on December 1, 2014.” Mr. Mack immediately provided proof of payment to Ms. Wesley. Ms. Wesley accepted the proof and mailed the exemption application forms and checklist to Mr. Mack for him to complete and return to her. Mr. Mack completed the exemption application forms and provided all additional information suggested by the instructions and checklist. While Mr. Mack provided all information called for by the Agency’s application forms, more evidence was presented at hearing bearing on the issue of whether Petitioner is rehabilitated from his disqualifying offense, such that Petitioner poses no danger to APD clients if he is allowed to return to work as a direct service provider. Evidence of Rehabilitation As described in the exemption statute, section 435.07, evidence of rehabilitation begins with consideration of the disqualifying offense itself: the circumstances surrounding the disqualifying offense, the time period that has elapsed since the offense; and the nature of the harm caused to the victim. Mr. Mack provided a detailed explanation of the circumstances surrounding his single 2002 disqualifying offense. He explained that he was approached by two men from his neighborhood, whom he knew by the nicknames they used. They propositioned him with an offer of a free cell phone, if they could use his address for delivery of a box of several cell phones. Mr. Mack agreed. At the time, he was 22 or 23 years old; the two men were older. Mr. Mack was young and naïve, focusing only on the chance to obtain a free cell phone, which was not easy to get or common among his peers at that time. After many weeks, a box containing five cell phones arrived at Mr. Mack’s address. He contacted the two men, who picked up the phones, leaving one for Mr. Mack as promised. For just over one month, Mr. Mack enjoyed the use of the cell phone and cellular service. Then, on October 29, 2002, a detective from the sheriff’s office appeared at his door with a phone company investigator. He let them in, answered all of their questions about the cell phone, and gave the cell phone to the detective. He was arrested and charged with theft of all five cell phones and the related cellular service, with a total value between $300.00 and $5,000.00. Based on the value range, the charge was grand theft, a third degree felony. At the time of his arrest, Mr. Mack was too ashamed to tell his family and ask for help. Instead, he accepted a public defender, and followed advice to put the incident behind him by pleading guilty. And Mr. Mack freely admits that he was guilty, insofar as he knowingly received the cell phone shipment and used the cellular service. He was oblivious to suspect circumstances, ignoring alarms sounding the classic warning that if a deal sounds too good to be true, it probably is. He expressed sincere remorse for his wrongdoing. As he said, he was young, naïve, and stupid. It is difficult to argue with that characterization. Petitioner’s explanation of the circumstances and his genuine remorse for his actions were credible and are credited.5/ With regard to the nature of harm to the victim, the Agency’s exemption application form frames the issue this way: “Degree of harm to any victim or property [permanent or temporary], damage or injuries.” This reasonably invites a response that differentiates between harm to persons and property damage, and between permanent and temporary injuries or damage. Mr. Mack’s application provided this response: “No property was damaged and no physical bodily harm took place.” This was a reasonable and accurate response. Consideration of the nature or degree of harm necessarily requires an assessment of the relative seriousness of the consequences. Considered that way, Mr. Mack’s criminal offense 13 years ago caused relatively inconsequential harm to any victim or property, which was remediable and remedied by court-ordered restitution. Mr. Mack deprived the cell phone companies of the value of his use of a cell phone for just over one month, when Mr. Mack gave the undamaged cell phone to the detective. To compensate for that temporary property loss, Mr. Mack paid restitution of $750.00. The relevant considerations as to the disqualifying offense itself provide strong evidence of Petitioner’s rehabilitation: the circumstances credibly explained by Petitioner; Petitioner’s sincere regret for his wrongdoing; the inconsequential degree of harm to any victim or property; and the substantial length of time--13 years--since the offense. Beyond the factors related to the disqualifying offense itself, evidence of rehabilitation may be in the form of the history of the applicant since the incident and any other evidence or circumstances indicating that the applicant will not present a danger if continued employment is allowed. Since 2002, as a young but maturing adult, Mr. Mack has worked hard to right his path, earn a living through meaningful work that goes beyond just earning a paycheck, and serve those in need by volunteering through his church and in the community. As confirmed by the criminal history record checks, Mr. Mack’s history since the disqualifying offense is notable by the absence of any criminal matters. Mr. Mack has not been arrested, much less charged or convicted, of a crime, whether disqualifying or otherwise. Mr. Mack’s pristine criminal history record since 2002 is proof that he learned his lesson from his one transgression. Mr. Mack provided evidence, in his application and at hearing, that not only has he avoided criminal incidents since 2002, but he has also worked hard to better himself and further his education and skills. He received his CNA license and an exemption from disqualification from the Department of Health, Board of Nursing, in 2009, allowing him to be employed in a position providing services within the scope of his CNA license. The exemption was issued to Mr. Mack pursuant to the same exemption statute as is at issue here, based on the same standard of clear and convincing proof of rehabilitation from the 2002 disqualifying offense. Since 2009, Petitioner has dedicated his work hours as well as significant personal time to providing care to developmentally disabled persons. He provided documentation of his relevant training and certifications since 2009, in such areas as professional crisis management, CPR and AED basic life support for healthcare providers, heartsaver first aid, supported living coaching, and HIPAA patient privacy and security. Petitioner holds an APD medication administration assistance validation certificate, issued on October 22, 2014. Mr. Mack has a secure, positive family base. He testified that he comes from a large, loving family that finds great strength from each other and from their strong faith. His grandparents are the “rock” of the family that they started when they married 70 years ago. They are both disabled, which is why Mr. Mack developed a passion for working with persons with disabilities. At hearing, Mr. Mack presented compelling testimony of witnesses who were able to attest to the exemplary care Mr. Mack provided to developmentally disabled APD clients as an Allshouse employee from October 2009 to October 2014. For the entire five-year period when Mr. Mack was an Allshouse employee, he was assigned to provide in-home care, first as a home health aide and then as a supported living coach, to Jean and Michael Murvine. The Murvines are a married couple. They are APD clients with developmental disabilities, who are able to live independently in their home as long as they can count on substantial in-home services. Michael is more independent than Jean; he is able to work at a Publix grocery store as long as he can count on a caretaker who will stay with Jean, because she requires supervision and assistance at all times. Among other conditions, Jean is diabetic and is recovering from stomach cancer and related surgery. She requires assistance and supervision of her blood sugar monitoring and insulin shots. At great effort, the Murvines came to the hearing so that each of them could voice their strong support for, and belief in, Mr. Mack, who was such a great caretaker for them until he was terminated. At times, their disabilities served to impede the clear expression of their words, but there was no impeding the strong emotion and conviction in their testimony. Michael Murvine emphasized that he is only able to work at Publix if he can rely on good care being provided to Jean. When Mr. Mack was her caretaker, Mr. Murvine knew his wife was well-taken care of: “She was safe with him.” Since Mr. Mack has left, however, Mr. Murvine is concerned about his wife’s safety. She has ended up in the hospital because Mr. Mack’s replacements have not been good; Mr. Murvine does not trust them like he trusted Mr. Mack. Mr. Mack “is so good, we want him back.” Jean Murvine confirmed the quality of care provided by Mr. Mack over the five-year period. She was firm in her conviction that Mr. Mack would never harm them, because he has their best interests at heart. When asked how her care had been since Mr. Mack had left work, her distress was evident; she got choked up, saying that it was different without him, and adding, simply, “We want him back.” As part of his job, Mr. Mack would often drive the Murvines to appointments. The Murvines both described how safe they always felt as passengers being transported by Mr. Mack, whom they described as a very careful driver. As Mr. Murvine put it, Mr. Mack is “a very safe driver, not one of those crazy drivers.” Mr. Mack gave of himself to the Murvines, going far beyond what was required of him as a direct service provider. He did things for the Murvines on his own personal time and/or using his own resources. He drove the Murvines from Largo to Brandon, east of Tampa, to visit Michael’s two brothers, one of whom is disabled and essentially homebound. Mr. Mack also drove the Murvines to Orlando so that Michael could attend a Publix awards banquet at which he was receiving an employee award. Mr. Mack volunteered his own time to do this. Michael Murvine’s brothers, Rick and Bud Murvine, also testified on Mr. Mack’s behalf, to add their perspectives on the extraordinary care provided by Mr. Mack to Michael and Jean, as well as Mr. Mack’s loving generosity, beyond just doing the job. Rick described Mr. Mack as “an amazing man,” who was very attentive and patient with Michael and Jean, and obviously cared for their safety. Rick has seen a marked contrast between how Michael and Jean have fared when Mr. Mack was caring for them and now, without Mr. Mack. He echoed Jean and Michael’s testimony that Mr. Mack was the only caretaker who took good care of them, and that the others who have replaced Mr. Mack have not provided the same quality of care or dedication. Rick Murvine has no doubt as to Mr. Mack’s good moral character. He trusts Mr. Mack so completely that he would give Mr. Mack the keys to his house. It is so clear to him that Mr. Mack presents no danger to developmentally disabled persons, he finds it a travesty that this proceeding is needed to answer that question. Bud Murvine also spoke highly of the exceptional care he has seen Mr. Mack give to Jean and Michael. He knows from his observations that Mr. Mack poses no danger to developmentally disabled persons. Bud has absolutely no doubt as to Mr. Mack’s good moral character; he would trust him with his life. Mr. Mack has given selflessly to the Murvine family, and in so doing, has shown his good moral character and the positive contributions he has to offer developmentally disabled persons. Bud Murvine offered a touching story demonstrating how Mr. Mack has given of himself, beyond just doing the job, to enrich the lives of this disabled couple. Mr. Mack orchestrated a celebration in a park for Jean and Michael Murvine to renew their wedding vows. Mr. Mack drove the Murvines to the area, set up decorations at the park, helped Jean and Michael dress up, and brought them to the park where they renewed their vows before family and friends. Bud Murvine concluded, with emotion, that what Mr. Mack did for them that day “was really cool.” Mr. Mack’s exceptional care of the Murvines was echoed by Charlene Clark, a physical therapy assistant who works with developmentally disabled adults and elderly persons. Over a four-year period, Ms. Clark got to know Mr. Mack and observe him while they were both providing services to the Murvine couple. Ms. Clark was effusive in describing the “incredible care” she observed Mr. Mack providing to the Murvines. Ms. Clark found Mr. Mack to be very knowledgeable about the Murvines’ care needs and very concerned about their welfare. She described Mr. Mack as a very encouraging and positive caregiver, which “is so rare.” She was adamant in expressing her view that he would never harm the Murvines or other developmentally disabled clients. Instead, it was “just the opposite.” The only harm she has observed comes from the Murvines no longer having Mr. Mack as their caretaker. Ms. Clark offered compelling, credible testimony regarding the harmful trickle-down effects of Mr. Mack becoming ineligible to continue working for Allshouse assigned to the Murvines. She has observed a noticeable decline, both physically and emotionally, by both Murvines since Mr. Mack is no longer their caretaker. Ms. Clark described the revolving door of replacement caretakers, none of whom are as good as Mr. Mack was with the Murvines. Ms. Clark was also effusive in describing Mr. Mack’s good moral character. She described Mr. Mack as generous of spirit, loving, caring, honest, reliable, and trustworthy. She has no doubts about his good moral character, “not one.” She trusts him so completely that she would trust him to care for her six-year-old grandchild. As a direct care provider herself, Ms. Clark understands the background screening process and the need for this exemption proceeding. She wrote a letter of support for his application, but her testimony added a great deal of texture, detail, and heart that do not come through on paper. She strongly believes that discontinuing Mr. Mack’s service to APD clients with developmental disabilities is a great loss to clients he served and could serve, if allowed, and that the developmentally disabled APD clients deserve better. In addition to Mr. Mack’s exemplary service to developmentally disabled persons while working as an Allshouse employee, Mr. Mack has shown his dedication to serving needy persons of all kinds and putting their needs before his own. Information was provided in his application regarding his community volunteer work. At hearing, he elaborated and updated the application information. Mr. Mack contributes many hours each week to a variety of volunteer activities, both at his church where he helps feed homeless persons and works with youth, and also at the Union Academy Cultural Center of Tarpon Springs where he assists with after-school programs for children and feeding the elderly. He is currently working with other individuals to set up a meals-on- wheels-type program for homeless people who cannot take advantage of traditional meals-on-wheels programs, because they have no home to receive meal deliveries. Mr. Mack’s dedication to helping needy persons of all kinds, and particularly those who are dependent and in need of support because of disabilities, was confirmed by Nathaniel Crawford, Jr., Mr. Mack’s uncle and the only family member to testify. A very articulate gentleman, Mr. Crawford retired from the air force, and is now a college instructor and a pastor at Oak Hill Church of God in Christ (Oak Hill). He has observed Mr. Mack’s contributions at Oak Hill, where Mr. Mack serves as a choir director and assists with a variety of church activities and programs. Mr. Crawford has observed Mr. Mack gravitating towards young, adult, and elderly persons with disabilities to assist them and has seen that he is very qualified and very caring. Mr. Crawford described Mr. Mack’s dedication to caring for developmentally disabled persons as “his ministry.” Mr. Crawford strongly believes from his observations that Mr. Mack presents no danger to these vulnerable people. Mr. Crawford was very emphatic, and credibly so, that he was saying these things not because Mr. Mack is his nephew, but because he observes the strong need for more persons like Mr. Mack dedicated to these human services, and feels strongly that it is a great loss to the developmentally disabled population to be deprived of Mr. Mack’s extraordinary care. More generally, Mr. Crawford attested to Mr. Mack’s good moral character, describing him as a fine young man who is unselfish and very giving of his time and resources. The only problem Mr. Crawford identified is that sometimes Mr. Mack is too nice--he is very caring and sacrifices for others instead of for himself. Mr. Crawford trusts Mr. Mack completely; he would trust him with his property and with the church’s property. The Agency’s Review and Stated Concerns In reviewing exemption applications, the Agency has limited resources to conduct investigations. The Agency did not interview Mr. Mack, any APD clients for whom he provided care while employed at Allshouse, or other caregivers who had observed Mr. Mack while he was providing services. The Agency employs DCF to conduct a fact-finding investigation and issue an Exemption Fact Finding report, which is used by APD in its review of the exemption request. The DCF Exemption Fact Finding report corroborates the testimony at hearing. First, the report confirmed that the only criminal offense of any kind--disqualifying or non-disqualifying--in Mr. Mack’s background was the 2002 offense discussed above. With regard to the “degree of harm to any victim, any permanent or temporary damage or injuries” the DCF fact-finding report found: “No permanent damage or temporary damage[.]” With regard to whether Mr. Mack had shown “[r]emorse [and had] accept[ed] responsibility for [his] actions,” the DCF report responded: “Yes.” After the DCF investigation and report, Mr. Mack’s exemption request file went to the Agency’s Suncoast regional office for review and recommendation. The operations manager, Jeff Smith, recommended denial because of a few concerns. Mr. Smith did not testify at hearing; however, he is the only member of the “review team” named in the APD Exemption Review Report-Routing Sheet, and his summary on that sheet is the only indication of the rationale for the Agency’s initial action. Mr. Smith expressed concern with whether Mr. Mack was responsible, apparently inferring a lack of responsibility from the fact that DCF found some unpaid court costs, fines, or fees still due in 2014. Mr. Smith did not have the benefit of Mr. Mack’s hearing testimony, which refutes any such inference. As found above, Mr. Mack reasonably believed he did not owe any additional costs, fines, or fees. He reasonably believed that he had paid all court-imposed monetary amounts that had not been waived more than a decade ago. When told otherwise by DCF, he immediately paid the remaining balance. As credibly explained by Mr. Mack, this misunderstanding does not call into question whether Mr. Mack is responsible. In contrast, the hearing testimony of six witnesses speaking on Mr. Mack’s behalf provided direct and persuasive evidence establishing beyond any doubt that Mr. Mack is very responsible. Mr. Smith also considered Mr. Mack’s record of non- criminal traffic infractions. Based on the record of traffic infractions, Mr. Smith expressed concern for the safety of APD clients who would be transported by Mr. Mack if he is allowed to work as a supported living coach. Mr. Mack was not asked to address civil traffic infractions in his application, so his first chance to address the Agency’s concern was at the hearing. Mr. Mack admittedly has a good number of civil traffic infractions on his driving record. However, none of the infractions involve a charged criminal violation.6/ None of the infractions involve injuries (or worse) to passengers or others. None of the infractions involve drugs or alcohol use, such as DUI; Mr. Mack does not use drugs, and only occasionally drinks alcohol socially. The Agency’s generalized safety concern based solely on the paper record of past traffic infractions was refuted by the specific, credible, and persuasive testimony of Mr. Mack and of actual APD clients with developmental disabilities who were regularly transported by Mr. Mack over a five-year period. Mr. Mack credibly testified that he has never been stopped for a moving violation of any kind when he was driving with a passenger in the vehicle with him. Mr. Mack has never been cited for a traffic infraction while transporting an APD client (or any other passenger). None of the traffic infractions in Mr. Mack’s record posed a safety risk to any passenger. And none of the traffic infractions in Mr. Mack’s record posed a safety risk to an APD client. To the contrary, the Murvines both testified convincingly that they found Mr. Mack to be a very safe, careful driver, and they always felt very safe with Mr. Mack when he was transporting them, which he did regularly and without adverse incident. Mr. Mack acknowledged his past record of traffic infractions, which he regrets. He has made a concerted effort to eliminate the traffic infractions that he used to occasionally commit when driving alone. The evidence shows that his efforts have paid off, as he has not been found to have committed any traffic infraction in over three years. The clear, convincing, and credible testimony of Mr. Mack and of the APD clients whom he actually transported is credited. This testimony provides specific, persuasive, direct evidence that Mr. Mack does not pose a safety risk when transporting APD clients, which is far more persuasive than the general inference drawn from Mr. Mack’s paper record of traffic infractions. The more persuasive, direct evidence establishes that Mr. Mack has always driven cautiously, carefully, safely, and without adverse incident when transporting APD clients with developmental disabilities, and he does not pose a safety risk to those APD clients whom he might transport in the future. Besides the two concerns expressed in Mr. Smith’s summary, no other rationale was offered for the Agency’s initial action. The Agency’s two witnesses did not participate in the formulation of that initial decision. Ms. Mott testified that Jeff Smith is her supervisor, and he conducted a review to formulate his recommendation; she has no personal knowledge of how he conducted his review. Ms. McDaniel testified that she received the file from the regional office, and her role was to present the application and related documents to an exemption committee in Tallahassee, but not to formulate a recommendation or offer an opinion. She did not identify the exemption committee members involved with Mr. Mack’s application, and none are identified on the Routing Sheet. No committee member testified. There is no documentation of an exemption committee or of its recommendation. Ms. McDaniel testified that the entire file was provided to APD Director Palmer with two draft letters: one stating that the request is approved, and one stating that the request is denied. The director signed the latter. No evidence was offered to prove that in formulating its intended action, the Agency considered the exemption from disqualification issued to Mr. Mack in 2009 by the Department of Health based on the same 2002 disqualifying offense. Ultimate Findings of Fact Mr. Mack has proven by clear and convincing evidence that he is rehabilitated from the single disqualifying offense he committed in 2002. The undersigned finds that Petitioner presents no danger to the vulnerable population served by the Agency. The credible hearing testimony summarized above overwhelmingly established that Mr. Mack poses no danger to APD clients, including children and persons with developmental disabilities, if he is allowed to resume employment as a direct service provider. The few concerns expressed by the Agency in formulating its intended action, without the benefit of the hearing testimony, were effectively refuted by the credible testimony at hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Persons with Disabilities enter a final order granting Petitioner’s application for an exemption from disqualification from employment. DONE AND ENTERED this 11th day of September, 2015, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR 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 September, 2015.
Findings Of Fact 11. The factual allegations contained in the Stop- Work Order and Order of Penalty Assessment issued on May 19, 2011, the Amended Order of Penalty Assessment issued on June 7, 2011, and the 3rd Amended Order of Penalty Assessment issued on February 17, 2012, and fully incorporated herein by reference, are hereby adopted as the Department’s Findings of Fact in this case.
Conclusions THIS PROCEEDING came on for final agency action and Jeff Atwater, Chief Financial Officer of the State of Florida, or his designee, having considered the record in this case, including the request for administrative hearing received from WILLIAM KEELE, DBA, WILLIAM MILTON KEELE LLC, A DISSOLVED FLORIDA LIMITED LIABILITY COMPANY AND WILLIAM MILTON KEELE LLC, the Stop- Work Order and Order of Penalty Assessment, the Amended Order of Penalty Assessment, the 3rd Amended Order of Penalty Assessment, and being otherwise fully advised in the premises, hereby finds that: 1. On May 19, 2011, the Department of Financial Services, Division of Workers’ Compensation (hereinafter “Department”) issued a Stop-Work Order and Order of Penalty Assessment in Division of Workers’ Compensation Case No. 11-164-1A to WILLIAM MILTON KEELE LLC, A DISSOLVED FLORIDA LIMITED LIABILITY COMPANY AND WILLIAM MILTON KEELE LLC. The Stop-Work Order and Order of Penalty Assessment included a Notice of Rights wherein WILLIAM MILTON KEELE LLC, A DISSOLVED FLORIDA LIMITED LIABILITY COMPANY AND WILLIAM MILTON KEELE LLC was advised that any request for an administrative proceeding to challenge or contest the Stop-Work Order and Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Stop- Work Order and Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes, and must conform to Rule 28-106.2015, Florida Administrative Code. 2. On May 19, 2011, the Stop-Work Order and Order of Penalty Assessment was served by personal service on WILLIAM MILTON KEELE LLC, A DISSOLVED FLORIDA LIMITED LIABILITY COMPANY AND WILLIAM MILTON KEELE LLC. A copy of the Stop-Work Order and Order of Penalty Assessment is attached hereto as “Exhibit A” and incorporated herein by reference. 3. On June 2, 2011, the Department received an Election of Proceeding requesting administrative review (“Petition”) from WILLIAM KEELE, DBA, WILLIAM MILTON KEELE LLC, A DISSOLVED FLORIDA LIMITED LIABILITY COMPANY AND WILLIAM MILTON KEELE LLC. A copy of the Petition is attached hereto as “Exhibit B” and incorporated herein by reference. 4. On June 7, 2011, the Department issued an Amended Order of Penalty Assessment to WILLIAM KEELE, DBA, WILLIAM MILTON KEELE LLC, A DISSOLVED FLORIDA LIMITED LIABILITY COMPANY AND WILLIAM MILTON KEELE LLC. The Amended Order of Penalty Assessment amended the legal name of the employer to WILLIAM KEELE, DBA, WILLIAM MILTON KEELE LLC, A DISSOLVED FLORIDA LIMITED LIABILITY COMPANY AND WILLIAM MILTON KEELE LLC. The Amended Order of Penalty Assessment assessed a total penalty of $43,256.29 against WILLIAM KEELE, DBA, WILLIAM MILTON KEELE LLC, A DISSOLVED FLORIDA LIMITED LIABILITY COMPANY AND WILLIAM MILTON KEELE LLC. The Amended Order of Penalty Assessment includéd a Notice of Rights wherein WILLIAM KEELE, DBA, WILLIAM MILTON KEELE LLC, A DISSOLVED FLORIDA LIMITED LIABILITY COMPANY AND WILLIAM MILTON KEELE LLC was advised that any request for an administrative proceeding to challenge or contest the Amended Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Amended Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes, and must conform to Rule 28- 106.2015, Florida Administrative Code. 5. On June 23, 2011, the Amended Order of Penalty Assessment was served by certified mail on WILLIAM KEELE, DBA, WILLIAM MILTON KEELE LLC, A DISSOLVED FLORIDA LIMITED LIABILITY COMPANY AND WILLIAM MILTON KEELE LLC. A copy of the Amended Order of Penalty Assessment is attached hereto as “Exhibit C” and incorporated herein by reference. 6. On July 13, 2011, the Department received an amended Election of Proceeding form (“Amended Petition”) from WILLIAM KEELE, DBA, WILLIAM MILTON KEELE LLC, A DISSOLVED FLORIDA LIMITED LIABILITY COMPANY AND WILLIAM MILTON KEELE LLC, and the matter was referred to the Division of Administrative Hearings and assigned DOAH Case No. 11-6178. A copy of the Amended Petition is attached hereto as “Exhibit D” and incorporated herein by reference. 7. Following issuance of subsequent Amended Orders of Penalty Assessment, on February 17, 2012, the Department issued a 3rd Amended Order of Penalty Assessment to WILLIAM KEELE, DBA, WILLIAM MILTON KEELE LLC, A DISSOLVED FLORIDA LIMITED LIABILITY COMPANY AND WILLIAM MILTON KEELE LLC. The 3rd Amended Order of Penalty Assessment assessed a total penalty of $4,708.85 against WILLIAM KEELE, DBA, WILLIAM MILTON KEELE LLC, A DISSOLVED FLORIDA LIMITED LIABILITY COMPANY AND WILLIAM MILTON KEELE LLC. The 3rd Amended Order of Penalty Assessment included a Notice of Rights wherein WILLIAM KEELE, DBA, WILLIAM MILTON KEELE LLC, A DISSOLVED FLORIDA LIMITED LIABILITY COMPANY AND WILLIAM MILTON KEELE LLC was advised that any request for an administrative proceeding to challenge or contest the 3rd Amended Order of Penalty Assessment must conform to Rule 28-106.2015, Florida Administrative Code. 8. On April 5, 2012, the Department filed a Motion to Amend Order of Penalty Assessment with the Division of Administrative Hearings in DOAH Case No. 11-6178. A copy of the Department’s Motion to Amend Order of Penalty Assessment together with the 3rd Amended Order of Penalty Assessment is attached hereto as “Exhibit E” and incorporated herein by reference. 9. On April 18, 2012, the Administrative Law Judge issued an Order Granting Motion to Amend Penalty Assessment in DOAH Case No. 11-6178. The Order Granting Motion to Amend Penalty Assessment is attached hereto as “Exhibit F” and incorporated herein by reference. 10. On April 30, 2012, the Administrative Law Judge entered an Order Closing File and Relinquishing Jurisdiction due to Respondent’s failure to participate in discovery and appear at the scheduled formal hearing in DOAH Case No. 11-6178. A copy of the Order Closing File and Relinquishing Jurisdiction is attached hereto as “Exhibit G” and incorporated herein by reference.
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)
