10-007292 Keilah Longmore vs. Agency For Health Care Administration Status: Closed Recommended Order on Wednesday, March 23, 2011.

Summary: Petitioner failed to prove that she was entitled to an exemption to work at a health care facility in a capacity other than as a licensed practical nurse.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KEILAH LONGMORE , )

)

Petitioner, )

)

vs. ) Case No. 10 - 7292

)

AGENCY FOR HEALTH CARE )

ADMINISTRATION , )

)

Respondent. )

)

RECOMMENDED ORDER

A n a dministrative hearing was conducted in this case on

February 1, 2011 , in Tallahassee , Florida, before

James H. Peterson, III, Administrative Law Judge with the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Keilah Longmore , pro se

Post Office Box 165

Yalaha, Florida 34797

For Respondent: Sharon Jones , Esquire

Agency for Health Care Administration

2727 Mahan Drive , Building 3, MS 3

Tallahassee, Florida 32308

STATEMENT OF T HE ISSUE

W hether PetitionerÓs request for an exemption from

disqualification pursuant to s ection s 408.809(6) and 435.07(3),

Florida Statutes, should be granted.

PRELIMINARY STATEMENT

In May 20 10 , Petitioner submitted a request for exemption

to the Agency for Health Care Administration (Respondent),

requesting an exemption from disqualification. An informal

hearing with the Petitioner was conducted by Respondent via

telephone on May 26, 2010. By letters dated July 7, 2010, and

July 13, 2010, Respondent ad vised Petitioner that her request

for an exemption from employment disqualification pursuant to

section 435.07, Florida Statutes, was denied. Petitioner timely

requested an administrative hearing, and the case was referred

to the Division of Administrativ e Hearings (DOAH) on or about

August 9, 20 10 .

On October 5, 2010, Respondent filed a Motion to Dismiss

Petition with Prejudice and Cancel Formal Hearing. The motion

was denied on October 6, 2010.

T he administrative hearing in t his matter was initially

sch eduled for October 29, 2010, b ut was rescheduled for

February 1, 2011, by Order granting Respondent's motion to

continue the final hearing.

At the final hearing held February 1, 2011, Petitioner

testified on her own behalf and offered one exhibit which was

received into evidence as Exhibit P - 1 without objection.

Respondent presented the testimony of t hree witness es and

offered two composite exhibits which were received into evidence

as Exhibits R - 1 and R - 2 without objection. The proceedings were

reco r ded but neither party ordered a transcript.

Following the end of the evidentiary portion of the final

hearing on February 1, 2011, t he parties were given until

February 1 1 , 20 11 , to file their respective proposed recommended

orders. Respondent filed its Pro posed R ecommended O rder on

February 11, 20 11, which has been taken into consideration in

preparing this Recommended Order . Petitioner did not file a

proposed recommended order.

FINDINGS OF FACT

1. Respondent is authorized to conduct certain background

sc reenings and grant exemptions for employees providing specific

types of services within health care facilities licensed under

chapters 400, 408, and 435, Florida Statutes. See § 408.809,

Fla. Stat. (2010) 1 /

2. Petitioner holds a valid license as a licens ed

practical nurse from the Florida Department of Health, Board of

Nursing (Department of Health).

3. As part of an application for employment with a nursing

home for a position other than a s licensed practical nurse that

does not require licensure or cer tification , 2 / Petitioner

underwent background screening which revealed the following

criminal convictions:

a) PetitionerÓs guilty plea and

adjudication of guilt on February 14, 2003,

of two third degree felonies, including

Organized Fraud of Less than $ 20,000 and

Criminal Use of Pers onal Identification

Information; and

b) PetitionerÓs plea of no contest to the

first degree misdemeanor of contributing to

the delinquency of a minor and adjudication

of guilt on January 30, 2009.

4. Each of the above - re ferenced criminal convictions

revealed in PetitionerÓs background check would make Petitioner

ineligible to provide a service other than a service within the

scope of her nursing license in a health care facilit y licensed

by Respondent unless Petitioner re ceive s an exemption from

Respondent pursuant to s ec tion s 408.809(6) and 435.07(3),

Florida Statutes.

5. Petitioner submitted an application for exemption in

accordance with section s 408.809(6) and 435.07 to Respondent

dated April 27, 2010, which Responden t received on May 3, 2010 .

6. The application for exemption submitted by Petitioner

makes it clear that Petitioner sought, and is seeking in this

proceeding, an exemption for employment with a n assisted living

facility or nursing home in a capacity other than as a licensed

practical nurse for which she h olds a license.

7. The application for exemption submitted by Petitioner

was on Respondent's pre - printed form. Petitioner selected the

thi rd box on page one of the pre - printed form. The pre - printed

langu age corresponding to the thi rd box provides: "I am a

licensed or certified health care professional and I applied for

employment with a health care provider in a position that does

not require licensure or certification."

8. The pre - printed language next to th e thi rd box further

provides : "NOTE: If you are seeking an exemption to work as a

C NA , RN, LPN or other licensed or certified position, please

contact the appropriate licensing board."

9. On page 2 of the pre - printed form, Petitioner checked

box es in dicating that she had been denied employment with an

assisted living facility and a nursing home and is seekin g an

exemption for positions providing a "Dietary" service or as an

"Employee/Staff Person."

10. At a telephonic hearing conducted by Respondent on

May 26, 2010, Petitioner explained her version of the facts

surrounding her arrests and convictions. In addition to

Petitioner, the telephone hearing was attended by RespondentÓs

background screening manager , Sherri Ledbedder , and RespondentÓs

backgrou nd screening consultants , Bob Wrightfinge r, Bobbie Oday,

and Pam Smith.

11. RespondentÓs file for PetitionerÓs exemption request

contains police reports, plea and conviction records, and a

number of letters in support of PetitionerÓs requested

exemption, all of which were received into evidence in this

proceeding as Exhibit R - 1. In addition, a transcript of the

telephonic hearing was received into evidence as Exhibit R - 2.

12. As noted above, after the telephonic hearing,

Respondent preliminarily denied P etitionerÓs request for an

exemption, and Petitioner requested an administrative hearing.

13. At the final hearing in this case, Petitioner once

again explained her version of the facts surrounding her arrests

and convictions .

14. Petitioner was attend ing nursing school at the time of

her 2003 convictions. According to Petitioner, her convictions

in 2003 were the result of her confessions to crimes that she

knew about but did not actually commit. Petitioner explained

that others used her home computer to purchase another computer

by fraudulent use of identification information obtained from a

hospital patient . Petitioner further explained that, although

she did not actually commit the crime s for which she was

convicted in 2003 , she confessed in order to protect her friends

and because the crimes were committed in her home using her

computer . She explained that she felt responsible because she

was aware of the crimes and had not timely advise d authorities.

15. As a result of her confessions and convic tions in

2003, Petitioner was sentenced to six months in jail and three

years of probation. Petitioner was released after four months

and completed her probation, during which she successfully

passed regular drug tests.

16. Despite her conviction s and in carceration, Petitioner

completed her nursing education in 2004, and graduated with

honors, receiv ing a diploma in Practical Nursing from Orange

County Public Schools, Orlando Tech, on October 15, 2004.

17. As a result of her felony convictions, Petitione r lost

her civil rights. In 2007 , Petitioner posted an application to

the clemency board and her civil rights were restored on June 4,

2007 .

18. Since her felony convictions , Petitioner has started

an organic soap company named ÐPlanthead,Ñ which is regi stered

and operating in the United States and Jamaica. She also has a

business interest in a taxi service in Jamaica. In addition,

Petitioner had an ownership interest in a bar in Jamaica, which

is now closed.

19. As to her plea of no contest to the fir st - degree

misdemeanor of contributing to the delinquency of a minor and

adjudication of guilt on January 30, 2009 , Petitioner explained

that she pled nolo contendere on the ill - advised recommendation

of a lawyer. Petitioner testified that she was living i n a

house with her mother and her motherÓs boyfriend in November

2008, when the police came to the house at the request of

PetitionerÓs motherÓs boyfriend to serve eviction papers on

Petitioner and her mother.

20. According to Petitioner, when the polic e arrived, they

smelled marijuana and proceeded to search the house. Petitioner

testified that her son was playing outside at the time. Then,

according to Petitioner, the police fabricated a story that they

had found marijuana in PetitionerÓs possession and arrested her.

21. Petitioner advised that she was arrested for

possession of marijuana and child abuse. Petitioner said that

she was afraid that she would lose her son.

22. According to Petitioner, after she obtained a lawyer

to represent her in the case, he persuaded her to plea nolo

contender e to a lesser offense of contributing to the

delinquency of a minor. Petitioner said she followed her

lawyer's advice because he told her that, since he was an out -

of - town lawyer , the judge would not be favora ble to her and she

could end up with a long prison sentence.

23. As a result of he r conviction, she received a 30 - day

sentence which was suspended on the condition that she complete

20 hours of community service, attend a parenting class, and

undergo two random drug tests , to be completed by July 29, 2009.

24. Petitioner successfully completed the conditi ons of

her suspended sentence.

25. Thereafter, Petitioner applied for an exemption from

the Department of Health, Board of Nursing, regarding her

convic tions that are the subject of this proceeding . On

February 11, 2010, the Board of Nursing granted the exemption,

in a letter stating:

Dear Ms. Longmore:

The Florida Board of Nursing has completed

the review of your Level 1 Criminal History

report for lic ensed Practical Nurse

licensure. Based on the information

provided by the Florida Department of Law

Enforcement (FDLE), you have been found

guilty of, regardless of adjudication, or

entered a plea of guilty or nolo contendre

to the criminal offenses liste d above in

Section 435.03(2), F.S.

It has been determined; you have

demonstrated clear and convincing evidence

you will not present a danger if employed

within the healthcare field. This exemption

is granted to cover Certified Nursing

Assistants, License d Practical Nurses and

Registered Nurses should you be employed or

seek employment within a facility licensed

under Chapter 400, F.S. I f any

disqualifying offense(s) are committed after

the date of this letter, a new exemption is

required.

If your employ er has received a background

screening from the Agency for Health Care

Administration (AHCA) or their website,

which shows ÐpendingÑ or Ðnot okÑ you may

work with this exemption. However, you must

also contact AHCA regarding information they

may need. Th is exemption does not change

your criminal history, but merely provides

eligibility for employment; therefore the

Ðnot okÑ will remain on their website

regardless.

26. Other than the letter granting the exemption itself,

there was no evidence presented wh ich explains or elaborate s on

the Board of NursingÓs rational for granting the exemption.

27. There are a number of favorable letters of

recommendation in RespondentÓs file in support of PetitionerÓs

requested exemption. Those letters were received into evidence

as part of Exhibit R - 1, and were considered in preparing this

Recommended Order.

28. While Petitioner's versions of the facts surrounding

her convictions of disqualifying offenses are plausible, they

con flic t with her confessions and pleas of tho se crime s and are

therefore less than clear and convincing.

29. In addition, w hile there is favorable evidence

supporting Petitioner's request for exemption , b ased upon the

period of time since the disqualifying felony violations , the

seriousness of those offenses , the nature of harm caused to the

victim, and Petitioner's relatively recent conviction of

contributing to the delinquency of a minor , which is also a

disqualifying offense, it cannot be said that Petitioner proved

by clear and convincing evidenc e that she is entitled to receive

the exemption she seeks from Respondent.

30. In sum, Petitioner failed to meet her burden of

proving by clear and convincing evidence that she is entitled to

an exemption issued by Respondent for a position providing a

se rvice that is not within the scope of her license as a

licensed practical nurse . 3 /

CONCLUSIONS OF LAW

31. The Division of Administrative Hearings has

jurisdiction over the parties to a nd subject matter of this

procee ding. See §§ 120.569, 120.57(1), Fla. Stat.

32. Section 408.809, Florida Statutes, authorizes

Respondent to conduct background screenings under certain

circumstances to assure that those seeking positions within the

authority of Respondent have not committed disqualifying

offenses . Section s 408.809(4)(f) and (j), specifically list the

following crimes for which Petitioner was convicted, as

disqualifying offenses :

(f) Se ction 817.034, relating to fraudulent

acts through mail, wire, radio,

electromagnetic, photoelectronic, or

photooptical syst ems .

(j) Se ction 817.568, relating to criminal

use of personal identification information .

33. Secti on 408.809(4) also references offenses listed in

section 435.04, Florida Statutes, as disqualifying offenses.

Included in the disqualifying offenses li sted by section 435.04

is section 827.04, Florida Statutes, relating to contributi ng to

the delinquency or dependency of a child, for which Petitioner

was convicted. See § 435.04(2)(ii), Fla. Stat.

34. S ection 408.809(6)(a ) authorizes Respondent to grant

exemptions to those , such as Petitioner, who hold licenses

issued by the Department of Health under certain circumstances .

That section provides :

(6)(a) As provided in chapter 435, the

[Agency for Health Care Administration] may

grant an exemption from disqualification to

a person who is subject to this section and

who:

1. Does not have an active professional

license or certification from the Department

of Health; or

2. Has an active professional license or

certification from the Department of Heal th

but is not providing a service within the

scope of that license or certification.

(b) As provided in chapter 435, the

appropriate regulatory board within the

Department of Health, or the department

itself if there is no board, may grant an

exemption f rom disqualification to a person

who is subject to this section and who has

received a professional license or

certification from the Department of Health

or a regulatory board within that department

and that person is providing a service

within the scope of his or her licensed or

certified practice.

35. While it is appropriate to consider the fact that

Petitioner has received an exemption from the Department of

Health to provide care as a licensed practical nurse,

"[e]xemptions granted by one agency are not binding on the

subsequent agency." See § 435.07(5), Fla. Stat.

36. As noted in section 435.07(3)(a), 4 / in order to be

entitled to an exemption that would allow an employee to be

employed capacity for which the exemption is sought:

[T] he employee must demonstrate by clear and

convincing evidence that the employee should

not be disqualified from employment.

Employees seeking an exemption have the

burden of setting forth clear and convincing

evidence of rehabilitation, 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, and the

history of the employee since the incident,

or any other evidence o r circumstances

indicating that the employee will not

present a danger if employment or continued

employment is allowed.

37. For proof to be considered "'clear and convincing' . .

. , the evidence must be found to be credible; the facts to which

the witne sses testify must be distinctly remembered; the

testimony must be precise and explicit and the witnesses must be

lacking in 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 be lief or conviction, without hesitancy, as to

the truth of the allegations sought to be established." In re

Davey , 645 So. 2d 398, 404 (Fla. 1994), quoting Slomowitz v.

Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983) .

38. As noted in the Findings of Fact above, Petition er

failed to prove by clear and convincing evidence that she was

entitled to an exemption from Respondent to work at a facility

licensed by Respondent in a capacity other than a s a licensed

practical nurse for which she holds a license issue d by the

Department of Health .

39. This conclusion, however, leaves undisturbed the

previous finding of the Department of Health , which "granted [an

exemption to Petitioner] to cover Certified Nursing Assistants,

Licensed Practical Nurses and Registered N urses should [she] be

employed or seek employment [in that capacity] within a facility

licensed under Chapter 400, F.S." Se e Finding of Fact 2 5 and

Conclusion of Law 3 4 , supr a .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Agency for Health Care Administration

enter a Final Order , consistent with these findings and

conclusions , denying the application for an exemption submitted

by Petitioner in this case .

DONE AND ENTERED this 23rd day of March , 2011 , in

Tallahassee, Leon County, Florida.

S

JAMES H. PETERSON, III

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 23rd day of March , 2011 .

ENDNOTES

1 / Unless otherwise noted, all references to the Florida

Statutes are to the 2010 version.

2 / See Findings of Fact 5 through 9 .

3 / As further explained by section 408.809(6)(a), Florida

Statutes, which authorizes Respondent to grant exemptions to

those holding licenses issued by the Department of Health under

certain circu mstances:

(6)(a) As provided in chapter 435, the

[Agency for Health Care Administration] may

grant an exemption from disqualification to

a person who is subject to this section and

who:

1. Does not have an active professional

license or certification from the Department

of Health; or

2. Has an active professional license or

certification from the Department of Health

but is not providing a service within the

scope of that license or certification.

(b) As provided in chapter 435, the

appropriate regul atory board within the

Department of Health, or the department

itself if there is no board, may grant an

exemption from disqualification to a person

who is subject to this section and who has

received a professional license or

certification from the Depart ment of Health

or a regulatory board within that department

and that person is providing a service

within the scope of his or her licensed or

certified practice.

4 / Under the new version of section 435.07(3), Florida Statutes,

which was effective on Augu st 1, 2010, after the effective date

of Respondent's preliminary decision announcing the intended

action in this case, the head of the agency makes the preliminary

decision. Section 435.07(3) (c) further provides:

The decision of the head of an agency

reg arding an exemption may be contested

through the hearing procedures set forth in

chapter 120. The standard of review by the

administrative law judge is whether the

agency's intended action is an abuse of

discretion.

U nder the "abuse of discretion" standa rd, the test is "whether

any reasonable person" could take the position under review. See

Kareff v. Kareff , 943 So. 2d 890, 893 (Fla. 4th DCA 2006).

Considering the facts and circumstances of this case, it cannot

be said that Respondent's preliminary dec ision and intended

action to deny Respondent's requested exemption is unreasonable.

COPIES FURNISHED :

Sharon Jones, Esquire

Agency for Health Care Administration

2727 Mahan Drive, Fort Knox Building 3

Mail Station 3

Tallahassee, Florida 32308

Keilah L ongmore

Post Office Box 165

Yalaha, Florida 34797

Richard J. Shoop, Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308 5

Justin Senior, General Counsel

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

Elizabeth Dudek, Secretary

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit wr itten 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.