11-004379 Agency For Health Care Administration vs. Greenbriar Nh, Llc D/B/A Greenbriar Rehabilitation And Nursing Center Status: Closed Recommended Order on Tuesday, April 3, 2012.

Summary: Petitioner failed to establish the allegations in the Administrative Complaint.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION , )

)

Petitioner , )

)

vs. ) Case No. 11 - 4379

)

GREENBRIAR NH, LLC d/b/a )

GREENBRIAR REHABILITATION AND )

NURSING CENTER , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case

on January 25, 2012, by video teleconference at sites in

Sarasota and Tallahassee, Florida, before a designated

Administrative Law Judge of the Division of Administrative

Hearings (Division), Lynne A . Quimby - Pennock.

APPEARANCES

For Petitioner: Thomas J. Walsh, II, Esquire

Agency for Health Care Administration

Sebring Building, Suite 330G

525 Mirror Lake Drive, North

St. Petersburg, Florida 33701

For Respondent: Thomas W. Caufman, Esqui re

Quintairos, Prieto, Wood

and Boyer, P.A.

4905 West Laurel Street

Tampa, Florida 33607

STATEMENT OF THE ISSUES

Whether Respondent violated sections 408.809(1)(e) , Florida

Statutes (2010), 1/ and Florida Administrative Code Rule 59A -

4.106(2) and (4)(x), as alleged in the Administrative Complaint

(AC); 2/ and whether the violations , if found, warrant the

imposition of a conditional licensure rating and a $2,500.00

fin e under section 400.23(7)(a) and (8)(b), Florida Statutes.

PRELIMINARY STATEMENT

On July 6, 2011, Petitioner, Agency for Health Care

Administration (Petitioner), filed an AC against Respondent,

Greenbriar NH, LLC , d/b/a Greenbriar Rehabilitation and Nursin g

Center (Respondent), alleging violations of section

408.809(1)(e) and rule 59A - 4.106(2) and (4)(x). Pursuant to

section 400.23(7) (a) and (8)(b), Petitioner imposed a $2,500.00

fine and change d Respondent's licensure status from standard to

conditional commencing April 5, 2011 , and ending May 5, 2011. 3/

On August 5, 2011, Respondent filed a Petition for Formal

Administrative Hearing (Petition), disputing numerous portions

of the AC and requestin g an administrative hearing pursuant to

sections 120.569 and 120.57(1), Florida Statutes, and Florida

Administrative Code Rule 28 - 106.201(5). On August 25, 2011, the

Petition was referred to the Division for the assignment of an

A dministrative L aw J udge.

A Notice of Hearing was issued on September 7, 2011,

scheduling the case for hearing on November 18, 2011. Following

one uncontested motion for continuance, the hearing was

rescheduled to January 25, 2 012, and completed on that day.

At the final hearing, Petitioner presented the testimony of

Marilyn C. Jones, Makissa Abner, and Laurence G. Branch, Ph.D.

Petitioner offered its Exhibits A through E , which were admitted

into evidence. Respondent offered the testimony of Eric

Kingsley. Respondent's Exhibit s 1 through 5 were admitted in to

evidence.

The one - volume Transcript was filed on February 17, 2012. 4/

By rule , the parties are allowed ten days from the date the

T ranscript is filed to submit proposed recommended orders

(PROs). Respondent requested, and Petitioner did not object to

the request , to file their PROs within 20 days of the filing of

the T ranscript. The request was granted. Each party timely

submitted its PRO, and each has been considered in the

preparation of this Recommended Order.

FINDING S OF FACT

1. Petitioner is the regulatory authority responsible for

the licensure of nursing homes and the enforcement of applicable

federal regulations and state statutes and rules governing

skilled nursing facilities pursuant to the Federal Omnibus

Reconciliation Act of 1987, Title IV, Subtitle C (as amended) ;

c hapters 400, Part II, and 408, Part II, Florida Statutes ; and

Florida Administrative Code C hapter 59A - 4. Further, Petitioner

evaluates nursing home facilities to determine their degr ee of

compliance with established state regulations as a basis for

making the required licensure assignment.

2. Marilyn Jones works for Petitioner as a health facility

evaluator II. It is Ms. Jones' s responsibility to ensure that

healthcare facilities ar e in compliance with the rules and

regulations concerning healthcare as it relates to nursing

homes. Ms. Jones has passed the surveyor minimum qualification

test (SMQT) , which requires extensive training on how to conduct

nursing home surveys. Based on h er passing the SMQT, she is

allowed to perform surveys or evaluate nursing homes by herself.

3. Laurence Branch, Ph.D., is a distinguished professor

emeritus from the University of South Florida. Dr. Branch was

proffered as an expert in the evaluation of risk t o elders.

4. At all times material, Respondent was a licensed

nursing facility under the licensing authority of Petitioner,

operating a licensed 60 - bed nursing facility in Bradenton,

Florida. Respondent was required to comply with all applicable

s tatutes and rules.

5. Makissa Abner has been Respondent's h uman r esource (HR)

director since February 2009. It is her responsibility to

ensure that background checks are completed on all the new

hires. Respondent's a dministrator may also be involved wit h HR

issues including criminal history checks.

6. Eric Kingsley became Respondent's nursing home

administrator in December 2010. As such, Mr. Kingsley oversaw

the day - to - day operations of Respondent's facility. He

participated in the survey conducted at Respondent's facility in

April 2011, but was not involved with the hiring of employees

prior to his arrival in December 2010.

7. As part of her job, Ms. Abner was aware of Respondent's

"Clinical Division Standards & Guideline" (Guideline), a three -

page d ocument issued in 2004, with a revision date of

November 2009, regarding "Background Checks" for employees of

Respondent. This Guideline set s forth Respondent's screening

requirements for new employees as of May 2010. Those

requirements included in part:

STANDARD:

All potential employees will have a

background check completed prior to start of

employment to ensure the safety and welfare

of residents and staff. Criminal history

screening is required for employees whose

responsibilities require them to:

Provide personal care or services to

residents;

Have access to resident living area s ; or

Have access to resident funds or other

personal property

GUIDELINES:

No employee will begin work without a

completed background check. . . .

Administrators must assure that there are

internal systems in the facility to maintain

compliance.

Pre - screening Job Applicants and assuring

all employees have

a. Background screening

b. Drug screening

c. Reference checks (2) completed

d. Active & current license and or

certification.

e. Information must be obtained prior to

allowing applicant/employee to care for

our residents.

Employee must complete application while

onsite in facility.

Consent for background will be obtained in

writing.

Information will be entered into a

Background Screening system by HR or

designee.

Results will be obtained, reviewed by HR

or designee for a disqualifying

conviction, and kept in sealed envelope in

human resource file, marked confidential.

Any infractions identified on the report

will be discussed with the prospective

employee, documented on the background

screening form and placed in the file.

Any flags on report must be reviewed and

approved by administrator and RDO.

All out of state and those residing in

state less than 5 year s will have Level 2

background check completed.

For those having met exemption status from

prior offenses then final hiring decision

must be decided by administrator and RDO.

SCREENING REQUIREMENTS

Level 1 [ 5/ ] screening standards. -- All

employees required by law to be screened

shall be required to undergo background

screening as a condition of employment and

continued employment . . . level 1

screenings shall include, but not be

limited to, employment history checks and

statewide criminal correspondence ch ecks

through the Florida Department of Law

Enforcement, and may include local

criminal records checks through local law

enforcement agencies.

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

the screening.

Employees who have not maintained

continuous residency within the state for

the five (5) years must complete a

Level 2 . [ 6/ ]

Employees requiring a L evel 2 screening

may work in a conditional status for 180

days pending the screening results.

* * *

Standards must also ensure that the person:

(a) For employees and employers licensed or

registered pursuant to chapter 400, . . .

meets the requ irements of this chapter.

(b) Has not committed an act that

constitutes domestic violence as defined in

s. 741.28.

EXEMPTION PROCESS:

Individuals found guilty of, regardless of

adjudication, or entered a plea of nolo

contendere or guilty to, any offens e

prohibited for Level 1 screening and for

Level 2 screening are disqualified for

employment as a nursing home employee in

one of the three areas specified or

serving as owner, administrator, or

financial officer.

The employee has the option to apply for

an exemption from disqualification which,

if granted, would allow him/her to provide

personal services to residents or to serve

as owner, administrator, or financial

officer.

8. In May 2010, Diane Davis expressed an interest in

working for Respondent. Ms. Abner asked for and received from

Ms. Davis an application and a completed fingerprint card. The

fingerprint card was submitted to the appropriate agency. A

short time later , Ms. Davis provided to Ms. Abner a "Background

Report for Davis, Diane" with a print date of May 17, 2010,

showing a "Report Summary" for "FL State Criminal Report" as

"Clear" (background report). No one disputed this background

r eport.

9. Ms. Davis started working as a dietary assistant for

Respondent's dietary section around J une 1, 2010. At the time

Ms. Davis was hired, the law allowed an employee who required a

Level 2 background screening to begin work while the employer

awaited the results of that additional background screening.

10. The following excerpts from Respondent's dietary

assistant job description provide the expectations for dietary

assistants such as Ms. Davis:

GENERAL PURPOSE:

Provide assistance in food preparation and

dining services in accordance to menus,

diets and facility guidelines. Maintain

clean and sanitary conditions in the kitchen

and dining areas under the supervision of

the Dietary Manager or Cook.

QUALIFICATIONS :

* * *

Must be able to relate professionally and

positively to resident and families and to

work cooperatively wit h others.

* * *

ESSENTIAL JOB FUNCTIONS :

A. FOOD PREPARATION AND SERVING

Duties: Assist in the preparation and

serving of meals and snacks; use portion

control procedures. Assist in checking

trays for menu and diet preferences and

accuracy; ensure proper storage of foods and

supplies.

* * *

F. RESIDENTS' RIGHTS AN D POSITIV E

RELATIONSHIPS FUNCTI ONS

Duties: Understand, comply with and promote

all rules regarding residents' rights;

promote positive relationships with

residents, visitors and regulators, to

include a professional appearance and

attitude. (emphasis added).

Non e of Ms. Davis' s job duties called for her to take care of

resident's property, resident's funds, or required her to go

into a resident's room. 7/

11. The job duties that Ms. Davis was expected to perform

included preparing food, or help in preparing food for the

residents , and making sure the dishes were clean, the kitchen

was sanitary, the drinks were covered, and the food in the

freezers was placed appropriately. None of the job duties or

descriptions specify that a dietary assistant: will provide

pers onal care or services to or interact with residents; will

have access to resident living areas; or will have access to

resident funds or other personal property. To have a

qualification that , you "must be able to relate . . . positively

with residents . . . " does not state that you will relate to

residents, only that you have the ability to do so.

Additionally, assisting in the "preparation and serving of meals

and snacks" and "checking trays" does not state that a dietary

assistant will be in direct contact with residents.

12 . In mid to late June 2010, Ms. Davis received a letter

dated June 16, 2010, from Petitioner (Petitioner's Letter), with

a subject line of "RE: 07/27/1974 Simple Assault, Portsmouth,

Va Pd." 8/ Ms. Davis brought Petitioner's Let ter to Ms. Abner who

placed it in Ms. Davis' s personnel file. Petitioner's Letter

acknowledged receipt of Ms. Davis' s fingerprint card and advised

Ms. Davis that her criminal history report regarding her "arrest

and court case history was missing some inf ormation."

Petitioner's Letter requested additional information regarding

Ms. Davis' s arrest report and the court disposition. It advised

that Ms. Davis had to provide the requested information within

30 days (of June 16th) in order for Petitioner to det ermine

whether Ms. Davis was eligible to work for a healthcare

provider. In the event Ms. Davis did not meet this 30 - day

deadline, the entity that had requested the screening

(Respondent) would be notified that Ms. Davis was not eligible

for employment. Petitioner's Letter did not notify Ms. Davis

that she was disqualified from employment at that time.

13. Ms. Abner made a copy of Ms. Davis' s unsigned, non -

notarized response statement dated July 1, 2010 (Response

Statement) , and placed it in Ms. Davis' s personnel file. After

she notarized the Response Statement, Ms. Abner mailed it and

believed that Ms. Davis (and Respondent) had complied with

Petitioner's Letter. Ms. Abner did not receive any further

communication from Petitioner with respect to this R esponse

Statement. 9/

14. Prior to August 1, 2010, Ms. Abner thought she was

conducting her duties with respect to the background screening

requirements in compliance with the law that was in effect at

the time. Ms. Abner was well - aware that on August 1, 2010, the

Florida law regarding personnel screening requirements changed

to require Level 2 background screening for all personnel as

required in section 408.809(1) and (2).

15. Mr. Kingsley was unaware of any possible issue with

Ms. Davis' s employment ; h owever , he was not the administrator at

the time Ms. Davis was initially hired.

16. On April 5, 2011, Ms. Jones conducted a survey of

Respondent's facility. 10/ During this survey, Ms. Jones reviewed

Respondent's personnel records. When she reviewed Ms. Davis' s

personnel record, Ms. Jones saw just four items: Petitioner's

Letter , the Level 1 criminal history (background report) ,

Ms. Davis' s completed June 3rd fingerprint card , and her

Response S tatement.

17. Ms. Jones inquired about the status of the Level 2

background screening for Ms. Davis. Ms. Abner was initially

unable to provide that information, but , following a computer

check through Petitioner's webs ite, Ms. Abner found that

Ms. Davis received an exemption on March 14, 2011.

18. Ms. Davis continually worked at Respondent's facility

from June 1, 2010 , through March 14, 2011, and beyond.

Ms. Davis was not terminated or placed on suspension when, at

t he 180 days from her initial employment, Respondent had not

received notification of the Level 2 background screening.

Ms. Abner did not receive any notification from Petitioner that

Ms. Davis had a disqualifying offense, which should have been

forthcoming , if, in fact, the re was a disqualifying offense.

19. It is clear that Respondent did not follow up on

Ms. Davis' s Level 2 background screening. However, the law in

effect on her hire date did not equate a simple assault to a

disqualifying offense. Ms. Davis had to undergo the Level 2

background screening solely because she had not lived in Florida

continuously for the preceding five years. 11/

20. Petitioner presented Dr. Branch as an expert in risk

assessment for the elderly. Dr. Branch provided insig ht into

the risk associated with persons who have failed a background

screening. Petitioner provided Dr. Branch the following

documents for his review: the AC , the response to the AC ,

Ms. Abner's deposition and its attachments , the controlling

statutes r egarding background screening for Florida nursing

homes in effect up to and after August 2010 , the deficiency

classification system and definitions in part II of c hapter 400 ,

and Petitioner's "statistics relating to the number of persons

applying for positions in the healthcare community and requiring

criminal history background screening and how many of th ose

screenings were positive."

21. Petitioner's statistics were for 25 0,000 people who

applied for the criminal background screening clearance in

Florida during a 14 - month period . Of those applicants, nearly

10,000, or four percent failed the screening. Although an

interesting study, the analysis did not measure whether th e

disqualifying offense (that caused the background screening

failure) occurred one year ago , or 40 years ago or if there was

more than one disqualifying offense involved.

22. In the instant case, there is mention of Ms. Davis' s

arrest in Petitioner's Let ter, a simple assault that allegedly

occurred in 1974. However , there was no documentation or

testimony of any court action regarding that arrest. Thus,

there is uncertainty that an actual disqualifying offense

occurred. 12/ A simple assault does not qua lify as a

disqualifying offense, unless the victim was a minor.

23. Based on Ms. Davis' s age in 2010 , when her Response

Statement was mailed in , and her explanation of the event, she

was , at the time of the alleged 1974 simple assault, 25 years of

age. T he age of the alleged victim w as never proven . As such,

there is no proof that the alleged simple assault is the more

serious disqualifying offense. A simple assault is not a

disqualifying offense under either statute.

24. While recognized as an expert in his field and

accepted as one in this case, the statistical analysis provided

by Dr. Branch does not carry any significant weight . The

statistical analysis fails to include all the relevant

information . Further, in the instant case, there is no

disqua lifying offense ; thus , the statistics provided are not

persuasive.

25. There was no testimony or evidence presented that any

staff member re - applied for a Level 2 background check in

December 2010. There was no testimony or evidence that any

staff member first applied for an exemption in December 2010. 1 3 /

26. There was no testimony as to what "direct care" means.

Further, there was no testimony as to what "personal care "

means.

CONCLUSIONS OF LAW

27. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. §§ 120.569 and 120.57, Fla. Stat. (2011).

28. Petitioner has the burden of proving by clear and

convincing evidence that Respondent committed the violations as

alleged and the ap propriateness of the penalty imposed. Dep ' t

of Banking & Fin., v. Osborne, Stern & Co. , 670 So. 2d 932

(Fla. 1996).

29. In Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th

DCA 1983), 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 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 t rier of fact a firm belief or

conviction, without hesitancy, as to the

truth of the allegations sought to be

established.

PERTINENT LAWS AND RULES IN EFFECT ON J UNE 1, 2010:

30. S ection 400.215, Fl orid a Stat utes (2009), provided 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 this part who are

expected to, or whose respon sibilities may

require them to:

(a) Provide personal care or se rvices to

residents;

(b) Have acce ss to resident living areas;

or

(c) Have access to resident fu nds 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), facil ities must have 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 st andards as

specified in s. 435.03 shall be submitted by

the nursing facility to the agency. Results

of the background screening shall be

provided by the agency to t he 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 immediately 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 shal l 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 prospective employee

to furnish to the nursing fa cility 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 record 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 check.

The results of the national criminal hi story

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 li censed

under chapter 393, chapter 394, chapter 395,

chapter 397, chapter 429, 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 q ualified

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.

(c) The agency shall establish and maintain

a database of background screening

information which shall include the results

of both level 1 and level 2 screening. The

Department of Law Enforcement shall timely

provide to the agency, electronically, the

results of each statewide screening for

incorpo ration into the database. The agency

shall, upon request from any facility,

agency, or program required by or authorized

by law to screen its employees or

applicants, notify the administrator of the

facility, agency, or program of the

qualifying or disqua lifying status of the

employee or applicant named in the request.

(d) Applicants and employees shall be

excluded from employment pursuant to

s. 435.06. (emphasis added).

31. Section 435.05, Fl orida Stat utes (2009), provides , in

pertinent part:

Except as otherwise provided by law, the

following requirements sh all apply to

covered employees:

(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 l evel 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 wil l 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 of 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 whether screening has revealed

disqua lifying 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 disqual ification.

(2) Unless otherwise prohibited by state or

federal law, new employees may be placed on

probationary status pending a determination

of compliance with minimum stand ards set

forth in this chapter. (emphasis added).

32. Section 435.06, F lorida S tatutes (2009), states , in

pertinent part:

( 1) When an employer or licensing agency

has reasonable cause to believe that grounds

exist for the denial or termination of

employment of any employee as a result of

background screening, it shall notify the

employee in writing, stating the specific

record which indicates noncompliance with

the standards in this section. It shall be

the responsibility of the affected employee

to contest his or her disqualification or to

request exemption from disqualific ation.

The only basis for contesting the

disqualification shall be proof of mistaken

identity.

(2) The employer must either terminate the

employment of any of its personnel found to

be in noncompliance with the minimum

standards for good moral character contained

in this section or place the employee in a

position for which background screening is

not required unless the employee is granted

an exemption from disqualification pursuant

to s. 435.07.

(3) Any person who is required to undergo

employment screening and who refuses to

cooperate in such screening or refuse s to

submit the information necessary to complete

the screening, including fingerprints when

required, shall be disqualified for

employment in such position or, if employed,

shall be dismissed . (emphasis added).

33. Section 400.022(1) , in pertinent part , states:

(1) All licensees of nursing home

facilities shall adopt and make public a

statement of the rights and responsibilities

of the residents of such facilities and

shall treat such residents in accordance

with the provisions of that statement. The

statement shall assure each resident the

following:

* * *

(o) The right to be free from mental and

physical abuse, corporal punishment,

extended involuntary seclusion, and from

physical and chemical restraints, except

those restraints authorized in writing by a

physician for a specified and limited period

of time or as are necessitated by an

emergency. In case of an emergency,

restraint may be applied only by a qualified

licensed nurse who shall set forth in

writing the circumstances requiring th e use

of restraint, and, in the case of use of a

chemical restraint, a physician shall be

consulted immediately thereafter.

Restraints may not be used in lieu of staff

supervision or merely for staff convenience,

for punishment, or for reasons other than

resident protection or safety.

34. Rule 59A - 4.106 provides , in pertinent part:

(2) Each nursing home facility shall adopt,

implement, and maintain written policies and

procedures governing all services provided

in the facility.

35. Rule 59A - 4.106(4)(x) provides as follows:

Each facility shall maintain policies and

procedures in the following areas:

* * *

(x) Resident's rights [.]

CHANGES IN LAWS EFFECTIVE AUGUST 1, 2010:

36. Section 400.215 was revised to read as follows:

(1) The agency shall require level 2

background screening for personnel as

required in s. 408.809 (1)(e) pursuant to

chapter 435 and s. 408.809 .

(2) The agency shall, as allowable,

reimburse nursing facilities for the cost of

conducting background screening as required

by this section. This reimbursement is not

subject to any rate ceilings or payment

targets in the Medicaid Reimbursement plan.

The note following this statute is critical in understanding how

th e Legislature inten ded the new requirement to be implemented.

The note reads:

1 Note. -- Section 58, ch. 2010 - 114, provides

that "[t]he changes made by this act are

intended to be prospective in nature . It is

not intended that persons who are employed

or li censed on the effective date of this

act be rescreened until such time as they

are otherwise required to be rescreened

pursuant to law, at which time they must

meet the requirements for screening as set

forth in this act." (e mphasis added ).

37. Section 408.809, which added subsection (1)(e) with

the 2010 legislation, in pertinent part , states:

(1) Level 2 background screening pursuant

to chapter 435 must be conducted through the

agency on each of the following persons, who

are considered employees for the purposes of

conducting screening under chapter 435:

* * *

(e) Any person, as required by authorizing

statutes, seeking employment with a licensee

or provider who is expected to , or whose

responsibilities may require him or her to,

provide pe rsonal care or services directly

to clients or have access to client funds,

personal property, or living areas; and any

person, as required by authorizing statutes,

contracting with a licensee or provider

whose responsibilities require him or her to

provid e personal care or personal services

directly to clients. Evidence of contractor

screening may be retained by the

contractor's employer or the licensee. [15/]

(e mphasis added ).

The legislative note found in paragraph 36 above also follows

this statute.

38. Section 435.05, Florida Statutes , provides

requirements for covered employees and employers as follows:

Except as otherwise provided by law, the

following requirements apply to c overed

employees and employers:

(1)(a) Every person required by law to be

screened pursuant to this chapter must

submit a complete set of information

necessary to conduct a screening under this

chapter.

(b) For level 1 screening, the employer

must submit the information necessary for

screening to the Department of Law

Enfor cement within 5 working days after

receiving it. The Department of Law

Enforcement shall conduct a search of its

records and respond to the employer or

agency. The employer must inform the

employee whether screening has revealed any

disqualifying informa tion.

(c) For level 2 screening, the employer or

agency must submit the information necessary

for screening to the Department of Law

Enforcement within 5 working days after

receiving it. The Department of Law

Enforcement shall perform a criminal history

record check of its records and request that

the Federal Bureau of Investigation perform

a national criminal history record check of

its records for each employee for whom the

request is made. The Department of Law

Enforcement shall respond to the employ er or

agency, and the employer or agency must

inform the employee whether screening has

revealed disqualifying information.

(d) The person whose background is being

checked must supply any missing criminal or

other necessary information upon request to

the requesting employer or agency within

30 days after receiving the request for the

information.

(2) Every employee must attest, subject to

penalty of perjury, to meeting the

requirements for qualifying for employment

pursuant to this chapter and agreei ng to

inform the employer immediately if arrested

for any of the disqualifying offenses while

employed by the employer.

(3) Each employer licensed or registered

with an agency must conduct level 2

background screening and must submit to the

agency annual ly or at the time of license

renewal, under penalty of perjury, a signed

affidavit attesting to compliance with the

provisions of this chapter.

The legislative note found in paragraph 36 above also follows

this statute.

39. Section 435.06(2)(a) and (c) p rovides as follows:

(2)(a) An employer may not hire, select, or

otherwise allow an employee to have contact

with any vulnerable person that would place

the employee in a role that requires

background screening until the screening

process is completed and demonstrates the

absence of any grounds for the denial or

termination of employment. If the screening

process shows any grounds for the denial or

termination of employment, the employer may

not hire, select, or otherwise allow the

employee to have contact with any vulnerable

person that would place the employee in a

role that requires background screening

unless the employee is granted an exemption

for the disqualification by the agency as

provided under s. 435.07 .

* * *

(c) The employer must terminate the

employment of any of its personnel found to

be in noncompliance with the minimum

standards of this chapter or place the

employee in a position for which background

screening is not required unless the

employee is granted an exemption from

disqualification pursuant to s. 435.07 .

Again, the legislative note found in paragraph 36 above als o

follows this statute.

40. It is vital to understand the tension between the

statute that was in play when Ms. Davis was employed by

Respondent in June 2010 and the change that occurred to the

applicable statutes on August 1, 2010.

41. On June 1, 2010, R espondent obtained the Level 1

background screening for Ms. Davis, its dietary assistant.

Respondent timely obtained the fingerprint card from Ms. Davis

and provided it to the appropriate agency. This is proven by

Petitioner's Letter. Following receipt of Petitioner's Letter,

Respondent's HR director, Ms. Abner , assisted Ms. Davis in

completing the requisite response within the 30 - day period.

After submitting the Response Statement on behalf of Ms. Davis,

Respondent had complied with its statutory requi rement.

Respondent did not receive any notification from Petitioner (or

any other state authority) advising Respondent that Ms. Davis

had to be terminated from her position based on a failure to :

( 1) either provide the requested/required information or

( 2) that she had a disqualifying offense that precluded her from

such employment. Respondent concluded that it was in compliance

with the Level 2 criminal history background screening

requirement .

42. The AC alleges that Respondent violated

section 408.80 9(1)(e). At the time Respondent hired Ms. Davis,

there was no section 408.809(1)(e). When the L egislature

enacted section 408.809(1)(e), effective August 1, 2010, it

specifically inserted the legislative intent that the changes

were to be "prospective in nature . " H ence , Respondent's hiring

of Ms. Davis could not have violated the statute.

4 3 . Respondent and Ms. Davis were in compliance with

section 400.215(1) and (2)(d), in that they provided the

requisite information to obtain the appropriate background

screening as provided in chapter 435 at the time Ms. Davis was

hired.

44. Even if Respondent had not provided the requisite

fingerprint card or exp lanation to the simple assault

allegation, there was no proof that a disqualifying offense

under either the 2009 or 2010 statute occurred.

45. Section 400.23(7) provides , in pertinent part:

(7) The agency shall, at least every 15

months, evaluate all nursing home facilities

and make a determination as to the degree of

compliance by each licensee with the

established rules adopted under this part as

a basis for assigning a licensure status to

that facility. The agency shall base its

evaluation on the m ost recent inspection

report, taking into consideration findings

from other official reports, surveys,

interviews, investigations, and inspections.

In addition to license categories authorized

under part II of chapter 408, the agency

shall assign a licensu re status of standard

or conditional to each nursing home .

(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 condi tional 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 established by the agency, is not

in substantial compliance at the time of the

surve y 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 survey, a standard licensure

status may be assigned. (emphasis added).

46. Section 400.23(8) provides , in pertinent part:

(b) A class II deficiency is a deficiency

that the agency determines has compromised

the re si dent's ability to maintain or reach

his or her highest practicable physical,

mental, and psychosocial well - being, as

defined by an accurate and comprehensive

resident assessment, plan of care, and

provision of services. A class II

deficiency is subject to a civil penalty of

$2,500 for an isolated deficiency, $5,000

for a patterned deficiency, and $7,500 for a

widespr ead deficiency. The fine amount

shall be doubled for each deficiency if the

facility was previously cited for one or

more class I or class II deficiencies during

the last licensure inspection or any

inspection or complaint investigation since

the last lic ensure inspection. A fine shall

be levied notwithstanding the correction of

the deficiency.

(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 res ident 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

assessment, plan of care, and provision of

services. A class III deficiency is subject

to a civil penalty of $1,000 for an isolated

deficiency, $2,000 for a patterned

deficiency, and $3,000 for a widespread

deficiency. The fine amount shall be

doubled for each deficiency if the facility

was previously cited for one or more class I

or class II deficiencies during the last

licensure inspection or any inspection or

complaint investigation since the last

licensure inspection. A citation for a

class III deficiency must specify the time

within whi ch the deficiency is required to

be corrected. If a class III deficiency is

corrected within the time specified, a civil

penalty may not be imposed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Agency for Health Care

Administration enter a f inal o rder finding that Respondent is

not guilty of a Class II violation and re - issuing the license to

reflect a standard license for the period previously issued as

conditional.

DONE AND ENTERED this 3rd da y of April , 2012 , in

Tallahassee, Leon County, Florida.

S

LYNNE A. QUIMBY - PENNOCK

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 3rd day of April , 2012 .

ENDNOTES

1/ Unless otherwise noted, all references to Florida Statutes

are to the 2010 version .

2/ The AC contains incorrect dates as to when events or actions

occurred. It also includes incomplete statutory cites.

Petitioner's P roposed R ecommended O rder has the same errors.

3/ The undersigned was advised that , if it was determined that a

"conditional" license isn't or wasn't appropriate, Petitioner

will issue the appropriate license for the applicable period.

4/ The Administrative Law Judge was located at The Desoto

Building, 1230 Apalachee Parkway, Tallahass ee , Florida, in

H earing R oom 7 during the entire hearing. The T ranscript

indicates otherwise. Additionally, the undersigned's name is

correctly reflected in this Recommended Order.

5/ In simplistic terms, a Level 1 screening pertains to a

criminal back ground check solely from the S tate of Florida.

6/ In simplistic terms, a Level 2 screening pertains to a

criminal background check nationwide.

7/ Petitioner's counsel made the point that , in an emergency,

all employees are used to assist Respondent's residents. One

can appreciate this position ; however , that was not the crux of

this case.

8/ Simple assault i s not a disqualifying offense, unless the

victim was a minor. See § § 435.04(2)(h) and 435.03(2)(h), Fla.

Stat. (2009).

9/ The letter also directed that , if the arrest involved a

theft, Ms. Davis had to provide what was stolen and the total

value of it. Theft was not involved.

10/ Petitioner commenced a survey of Respon dent based on a

complaint. The complaint investigation did not form the basis

for this AC.

11/ It was established that Ms. Davis had lived in Florida in

December 2007 , as she had an exemption letter from the Agency

for Persons with Disabilities. It app ears she may have lived in

Florida prior to that time, but it was not a continuous five -

year period before her June 1, 2010 , hire date. Pursuant to

section 435.07(5), Florida Statutes (2009 and 2010), an

exemption from disqualification from one agency sha ll be

consider ed, but it is not binding on a subsequent licensing

agency.

12/ In order to be a disqualifying offense, a plea or conviction

(regardless of adjudication) had to be documented. N one was

provided in this case.

1 3 / Ms. Davis did not testify ; so , it is unknown when she

applied for the exemption.

1 4 / This subsection was not in effect when Ms. Davis was hired

in June 2010.

COPIES FURNISHED :

Thomas J. Walsh, II, Esquire

Agency for Health Care Administration

Sebring Building, Suite 330G

525 Mirror Lake Drive, North

St. Petersburg, Florida 33701

Thomas W. Caufman, Esquire

Quintairos, Prieto, Wood

and Boyer, P.A.

4905 West Laurel Street

Tampa, Florida 33607

Elizabeth Dudek, Secretary

Agency for Health Care Administration

2727 Mahan Drive , Mail Stop 1

Tallahassee, Florida 32308

William H. Roberts, Acting General Counsel

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

Richard J. Shoop, Agency Clerk

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 written exceptions within

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

to this Recommended Order should b e filed with the agency that

will issue the Final Order in this case.