03-001655 Agency For Health Care Administration vs. Delta Health Group, Inc., D/B/A Longwood Health Care Center Status: Closed Recommended Order on Tuesday, November 25, 2003.

Summary: Respondent nursing home failed to properly conduct a background screening of the employee. This is a patterned, Class III, deficiency.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) Case No. 03 - 1655

)

DELTA HEALTH GROUP, INC., d/b/a )

LONGWOOD HEALTH CARE CENTER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative

Hearings, by its duly - designated Administrative Law Judge,

Jeff B. Clark, held a final administrative hearing in this case

on October 10, 2003, in Sanford, Florid a.

APPEARANCES

For Petitioner: Gerald L. Pickett, Esquire

Agency for Health Care Administration

Sebring Building, Suite 330L

525 Mirror Lake Drive, North

St. Petersbur g, Florida 34701

For Respondent: R. Davis Thomas, Jr.

Qualified Representative

Broad and Cassel

215 South Monroe Street, Suite 400

Post Office Box 11300

Tallahassee, Florida 32302 - 1300

STATEMENT OF THE ISSUES

Whether Respondent, Delta Health Group, Inc., d/b/a

Longwood Health Care Center, violated Sections 400.215 and

435.05, Florida Statutes; and whether the violations warrant the

impositi on of a conditional licensure rating and $2,000 fine.

PRELIMINARY STATEMENT

On April 7, 2003, Petitioner, Agency for Health Care

Administration, filed an Administrative Complaint alleging that

Respondent, Delta Health Group, Inc., d/b/a Longwood Health Car e

Center, failed to conduct appropriate employee background

screenings and that the failure to conduct appropriate

background screenings constituted a patterned, State Class III

deficiency which warranted a fine and imposition of a

conditional licensure ra ting.

On April 22, 2003, Respondent filed its Request for Formal

Administrative Hearing essentially disputing material facts,

requesting dismissal of the Administrative Complaint, and

seeking other relief. On May 7, 2003, Petitioner forwarded the

matter t o the Division of Administrative Hearings.

On May 8, 2003, an Initial Order was forwarded to both

parties. On June 10, 2003, the case was scheduled for final

hearing on August 12, 2003, in Sanford, Florida. On August 5,

2003, the parties filed a Joint Mo tion for Abeyance. In

response to the Joint Motion for Abeyance, the case was

continued and rescheduled for September 12, 2003. On

September 4, 2003, the parties moved for a continuance. The

motion for continuance was granted; the case was rescheduled for

October 10, 2003.

The case was presented as rescheduled on October 10, 2003.

R. Davis Thomas, Jr., who had previously been accepted as a

Qualified Representative, represented Respondent. Petitioner

presented two witnesses: David Douglas Metcalf and Karen Marie

Walker, both experienced surveyors employed by Respondent, and

offered two exhibits, which were received in evidence and marked

Petitioner's Exhibits 1 and 2. Respondent did not present any

witnesses or offer any exhibits.

The Transcript of Pr oceedings was filed with the Clerk of

the Division of Administrative Hearings on October 27, 2003.

Both parties submitted Proposed Recommended Orders, which were

considered by the undersigned Administrative Law Judge.

FINDINGS OF FACT

Based on stipulation s, official recognitions, and oral and

documentary evidence presented at the final hearing, the

following findings of fact are made:

1. Petitioner is the state agency charged with the

licensing of nursing homes and the assignment of licensure

status pursu ant to Chapter 400, Florida Statutes. Petitioner

evaluates nursing home facilities to determine their degree of

compliance with established state rules as a basis for making

the required licensure assignment. In addition, Petitioner is

responsible for co nducting federally mandated surveys of those

long - term care facilities receiving Medicare and Medicaid funds

for compliance with federally mandated statutory requirements.

These federally established requirements are applicable to

Florida nursing homes pu rsuant to Florida Administrative Code

Rule 59A - 4.1288.

2. Respondent is a licensed nursing home located at

1520 South Grant Street, Longwood, Florida.

3. As authorized by Chapter 400, Florida Statutes,

Petitioner surveyed Respondent to determine whether Respondent

was in compliance with applicable state and federal laws and

regulations. When Petitioner conducts a survey of a nursing

home, it issues a survey report, commonly referred to by its

form number, a "2567," or, when a state statute or rule is

vi olated, a "3020," referring to the State of Florida form. The

forms are identical in format with the exception of their

respective form numbers. If deficiencies are noted in the

"2567" ("3020"), they are identified by a "Tag" number which

identifies the applicable regulatory violation. In addition,

the survey report determines the level of deficiency of the

regulatory standard believed to have been violated. As a

result, the alleged deficient practice, the particular

regulation violated, and the class o f the deficiency, are cited

in the "2567" or "3020" survey report.

4. Petitioner conducted its annual recertification survey

of Respondent, which was completed on October 24, 2002, and

issued a 3020 survey report noting certain deficiencies

involving stat e required background screening of employees.

5. In an effort to protect residents of nursing homes who

are often unable, physically and mentally, to protect

themselves, the State of Florida requires that employers conduct

statutorily mandated background screenings of prospective

employees. For employees who have resided in Florida for five

years prior to applying for employment a "Level 1" screening is

required. For employees who have not resided in Florida for

five years prior to applying for employmen t in addition to the

"Level 1" screening, a "Level 2" screening is required.

6. A "Level 1" screening includes, but is not limited to,

employment history checks and statewide criminal correspondence

checks through the Florida Department of Law Enforcement and may

include local criminal records checks through local law

enforcement agencies.

7. A "Level 2" screening includes fingerprinting,

statewide criminal and juvenile records checks through the

Florida Department of Law Enforcement, federal criminal rec ords

checks through the Federal Bureau of Investigation, and may

include local criminal records checks through local law

enforcement agencies.

8. Sections 435.03 and 435.04, Florida Statutes (2002),

contain an extensive list of criminal offenses, which di squalify

a prospective employee from nursing home employment.

9. During the referenced survey, Petitioner examined five

of Respondent's current employees' personnel files. This

examination revealed that employment history checks had not been

completed on two of the five employees checked. By statute,

these employees should not have been hired prior to completion

of the employment history checks. Respondent does not contest

the determination that the employment history checks were not

conducted.

10. The survey report ("3020") notes "N620" as the "ID

Prefix Tag"; the portion of the 3020 titled "Summary Statement

of Deficiencies" contains Section 400.215, Florida Statutes,

reprinted verbatim. The 3020 further notes that this deficiency

is a "Pattern, C lass III, 11/15/02." The date indicates the

deadline for correction of the deficiency. Section 400.215,

Florida Statutes, states, in part, that "facilities must have in

their possession evidence that level 1 screening has been

completed before allowing a n employee to begin working . . ."

11. Petitioner conducted a "follow - up" survey on

December 12, 2002. During the "follow - up" survey, it was noted

that Respondent was appropriately conducting employment history

checks; however, it was also determined that Respondent had

failed to timely request "Level 2" background screening on three

of five employees due to its failure to timely submit

fingerprinting cards to Petitioner. Subsections 435.05(1)(a)

and (c), Florida Statutes, require that fingerprinting cards

should be submitted to Petitioner within ten working days of an

employee's hiring date. In the three instances cited, the

fingerprinting cards were forwarded 37, 27 and 15 days after the

employees were hired. Respondent does not dispute that the

fi ngerprinting cards were submitted late. The parties have

stipulated in the Joint Prehearing Stipulation filed October 1,

2003, that Respondent had forwarded all fingerprinting cards by

December 5, 2002.

12. Respondent urges that employment history checks are an

exercise in futility. It is argued that modern - day employers

will not advance negative information about a former employee.

While this argument may have some practical merit, there may be

instances where a former employer will provide information that

will result in the denial of employment and protection of

residents. A hiring employer may learn some information, not

limited to evidence of a conviction or plea to a disqualifying

offense, which may convince the employer not to hire an

applicant. In addition, it is the wisdom of the Florida

Legislature, not the employer that dictates this requirement of

law.

13. Respondent further argues that the delay in submitting

the required fingerprinting cards did not result in a potential

harm to residents because, in the three instances cited, the

results of the Level 2 screening demonstrated that none of the

involved employees had been convicted of a disqualifying

offense. This "begs the question" of a timely - filed

fingerprinting card revealing a disqual ifying offense more

quickly, resulting in the protection of residents. Were there

no time requirement for submitting the information required for

the "Level 2" screening, a dilatory employer could wait several

months before submitting the required informa tion, conceivably

allowing an employee with a disqualifying criminal offense

committed in another state to work for six months, 1 exposing

residents to potential harm the entire time.

CONCLUSIONS OF LAW

14. The Division of Administrative Hearings has

juris diction over the parties to and the subject matter of this

proceeding. §§ 120.569 and 120.57, Fla. Stat. (2003).

15. Petitioner has the burden of establishing by a

preponderance of the evidence that Respondent violated Section

400.215 and Chapter 435, Fl orida Statutes (2002), and that such

violation is a Class III deficiency. Beverly Enterprises -

Florida v. Agency for Health Care Administration , 745 So. 2d

1133 (Fla. 1st DCA 1999); Department of Transportation v. J. W.

C. Company, Inc. , 396 So. 2d 788 (Fl a. 1st DCA 1981).

16. In the event Petitioner seeks the imposition of an

administrative fine, the burden of proof is by clear and

convincing evidence. Department of Banking and Finance, Div. of

Securities and Investor Protection v. Osborne Stern & Co. , 670

So. 2d 932 (Fla. 1996)(citing Ferris v. Turlington , 510 So. 2d

292 (Fla. 1987)); Nair v. Department of Business & Professional

Regulation , 654 So. 2d 205 (Fla. 1st DCA 1995).

17. In Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla.

4th DCA 1983), the Cou rt of Appeal, Fourth District, canvassed

the cases to develop a "workable definition of clear and

convincing evidence" and found that of necessity such a

definition would need to contain "both qualitative and

quantitative standards." The court held that

clear and convincing evidence requires that

the evidence must be found to be credible;

the facts to which the witnesses testify

must be distinctly remembered; the testimony

must be precise and explicit and the

witnesses must be lacking confusion as to

the facts in issue. The evidence must be of

such weight that it produces in the mind of

the trier of fact a firm belief or

conviction, without hesitancy, as to the

truth of the allegations sought to be

established.

Id. The Florida Supreme Court later adopte d the Fourth

District's description of the clear and convincing evidence

standard of proof. Inquiry Concerning Davey , 645 So. 2d 398,

404 (Fla. 1994). The First District Court of Appeal also has

followed the Slomowitz test, adding the interpretive commen t

that "[a]lthough this standard of proof may be met where the

evidence is in conflict, . . . it seems to preclude evidence

that is ambiguous." Westinghouse Electric Corp., Inc. v. Shuler

Brothers, Inc. , 590 So. 2d 986, 988 (Fla. 1st DCA 1991), rev.

denie d , 599 So. 2d 1279 (Fla. 1992)(citation omitted).

18. Subsection 400.23(7), Florida Statutes (2002),

provides, in pertinent part:

(a) A standard licensure status means

that a facility has no class I or class II

deficiencies and has corrected all class III

deficiencies within the time established by

the agency.

(b) A conditional licensure status means

that a facility, due to the presence of one

or more class I or class II deficiencies, or

class III deficiencies not corrected within

the time establish ed by the agency, is not

in substantial compliance at the time of the

survey with criteria established under this

part or with rules adopted by the agency.

If the facility has no class I, class II, or

class III deficiencies at the time of the

follow - up su rvey, a standard licensure

status may be assigned.

19. Subsections 400.23(8)(c) and (d), Florida Statutes

(2002), provide:

(c) A class III deficiency is a

deficiency that the agency determines will

result in no more than minimal physical,

mental, or psychosocial discomfort to the

resident or has the potential to compromise

the resident's ability to maintain or reach

his or her highest practical physical,

mental, or psychosocial well - being, as

defined by an accurate and comprehensive

resident assessme nt, plan of care, and

provision of services. . . .

(d) A class IV deficiency is a deficiency

that the agency determines has the potential

for causing no more than a minor negative

impact on the resident. If the class IV

deficiency is isolated, no plan of

correction is required.

20. Section 400.215, Florida Statutes (2002), reads, in

pertinent part:

(1) The agency shall require background

screening as provided in chapter 435 for all

employees or prospective employees of

facilities licensed under t his part who are

expected to, or whose responsibilities may

require them to:

(a) Provide personal care or services to

residents;

(b) Have access to resident living areas;

or

(c) Have access to resident funds or

other personal property.

(2 ) Employers and employees shall comply

with the requirements of s. 435.05.

(a) Notwithstanding the provisions of s.

435.05 (1), facilities must ha ve in their

possession evidence that level 1 screening

has been completed before allowing an

employee to begin working with patients as

provided in subsection (1). All information

necessary for conducting background

screening using level 1 standards as

sp ecified in s. 435.03 (1) shall be submitted

by the nursing facility to the a gency.

Results of the background screening shall be

provided by the agency to the requesting

nursing facility.

(b) Employees qualified under the

provisions of paragraph (a) who have not

maintained continuous residency within the

state for the 5 years i mmediately preceding

the date of request for background screening

must complete level 2 screening, as provided

in chapter 435. Such employees may work in

a conditional status up to 180 days pending

the receipt of written findings evidencing

the completion of level 2 screening. Level

2 screening shall not be required of

employees or prospective employees who

attest in writing under penalty of perjury

that they meet the residency requirement.

Completion of level 2 screening shall

require the employee or pr ospective employee

to furnish to the nursing facility a full

set of fingerprints to enable a criminal

background investigation to be conducted.

The nursing facility shall submit the

completed fingerprint card to the agency.

The agency shall establish a r ecord of the

request in the database provided for in

paragraph (c) and forward the request to the

Department of Law Enforcement, which is

authorized to submit the fingerprints to the

Federal Bureau of Investigation for a

national criminal history records c heck.

The results of the national criminal history

records check shall be returned to the

agency, which shall maintain the results in

the database provided for in paragraph (c).

The agency shall notify the administrator of

the requesting nursing facility or the

administrator of any other facility licensed

under chapter 393, chapter 394, chapter 395,

chapter 397, or this chapter, as requested

by such facility, as to whether or not the

employee has qualified under level 1 or

level 2 screening. An employee or

prospective employee who has qualified under

level 2 screening and has maintained such

continuous residency within the state shall

not be required to complete a subsequent

level 2 screening as a condition of

employment at another facility.

21. Subsect ion 435.03(1), Florida Statutes (2002), reads

as follows:

(1) All employees required by law to be

screened shall be required to undergo

background screening as a condition of

employment and continued employment. For the

purposes of this subsection, leve l 1

screenings shall include, but not be limited

to, employment history checks and statewide

criminal correspondence checks through the

Florida Department of Law Enforcement, and

may include local criminal records checks

through local law enforcement agenc ies.

22. Subsection 435.04(1), Florida Statutes (2002), reads

as follows:

(1) All employees in positions designated

by law as positions of trust or

responsibility shall be required to undergo

security background investigations as a

condition of emplo yment and continued

employment. For the purposes of this

subsection, security background

investigations shall include, but not be

limited to, fingerprinting for all purposes

and checks in this subsection, statewide

criminal and juvenile records checks thr ough

the Florida Department of Law Enforcement,

and federal criminal records checks through

the Federal Bureau of Investigation, and may

include local criminal records checks

through local law enforcement agencies.

23. Section 435.05, Florida Statutes (2 002), reads as

follows:

(1)(a) Every person employed in a

position for which employment screening is

required must, within 5 working days after

starting to work, submit to the employer a

complete set of information necessary to

conduct a screening under this section.

(b) For level 1 screening, the employer

must submit the information necessary for

screening to the Florida Department of Law

Enforcement within 5 working days after

receiving it. The Florida Department of Law

Enforcement will conduct a search of its

records and will respond to the employer

agency. The employer will inform the

employee whether screening has revealed any

disqualifying information.

(c) For level 2 screening, the employer

or licensing agency must submit the

information necessary for screening to the

Florida Department of Law Enforcement within

5 working days after receiving it. The

Florida Department of Law Enforcement will

conduct a search of its criminal and

juvenile records and will request that the

Federal Bureau o f Investigation conduct a

search of its records for each employee for

whom the request is made. The Florida

Department of Law Enforcement will respond

to the employer or licensing agency, and the

employer or licensing agency will inform the

employee wheth er screening has revealed

disqualifying information.

(d) The person whose background is being

checked must supply any missing criminal or

other necessary information to the employer

within 30 days after the employer makes a

request for the information or be subject to

automatic disqualification.

(2) Unless otherwise prohibited by state

or federal law, new employees may be placed

on probationary status pending a

determination of compliance with minimum

standards set forth in this chapter.

(3) Eac h employer required to conduct

level 2 background screening must sign an

affidavit annually, under penalty of

perjury, stating that all covered employees

have been screened or are newly hired and

are awaiting the results of the required

screening checks.

24. The evidence, uncontested by Respondent, demonstrates

two areas of noncompliance with statues requiring background

screening designed to protect nursing home residents from

employees who, based on prior conduct, present a potential of

harm to the resi dents. Electing to ignore a required screening

process or failing to timely file certain required information,

admittedly different statutory violations, clearly demonstrate

substantial non - compliance with the requirement to conduct

background screening. The distinction suggested by Respondent

in argument between the two areas of non - compliance is a

distinction without a difference. The evidence demonstrated by

both surveys is that Respondent was not in substantial

compliance with the statutory backgroun d screening requirements.

25. The evidence is equally compelling that failure to

perform either of the two required background screening

activities as required presents the potential for harm to

residents or, in the language of Subsection 400.23(8)(c),

Fl orida Statutes (2002), ". . . has the potential to compromise

the resident's ability to maintain or reach his or her highest

practicable physical, mental, and psychosocial well - being,

. . ."

26. The December 12, 2002, "follow - up" survey that

discovered th e lateness in filing the fingerprinting cards also

determined that, effective December 5, 2002, the fingerprinting

cards had been forwarded to Petitioner, albeit late.

December 5, 2002, appears to be the appropriate date for

terminating the Conditional l icensure status of Respondent and

restoring the Standard licensure status.

27. As stated hereinabove, Respondent had cured the

specific deficiency initially cited, failure to pursue

employment history checks, at the time of the "follow - up"

survey. Even t hough I have determined that the failure of

Respondent to timely submit fingerprinting cards is a component

of the patterned Class III deficiency, the imposition of an

administrative fine as suggested in Subsection 400.23(8),

Florida Statutes (2002), appea rs to be excessive when it is

considered that Conditional licensure status is a significant

penalty.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that Petitioner e nter a final order finding

that Responde nt violated Section 400.215, Florida Statutes

(2002), by failing to comply with requirements regarding

employee background screening and awarding Respondent a

Conditional licensure status from October 24, 2002, through

December 5, 2002.

DONE AND ENTERED th is 25th day of November, 2003, in

Tallahassee, Leon County, Florida.

S

JEFF B. CLARK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 306 0

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 25th day of November, 2003.

ENDNOTE

1/ Subsection 400.215(2)(b), Florida Statutes, the "level 2"

scr eening statute, allows employment for a period of 180 days

while Level 2 screening takes place.

COPIES FURNISHED :

Gerald L. Pickett, Esquire

Agency for Health Care Administration

Sebring Building, Suite 330L

525 Mirror Lake Drive, North

St. Petersburg, F lorida 34701

R. Davis Thomas, Jr.

Broad and Cassel

215 South Monroe Street, Suite 400

Post Office Box 11300

Tallahassee, Florida 32302 - 1300

Lealand McCharen, Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive, Mail Station 3

Tallahasse e, Florida 32308

Valda Clark Christian, General Counsel

Agency for Health Care Administration

Fort Knox Building, Suite 3431

2727 Mahan Drive

Tallahassee, Florida 32308

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the final order in this case.