19-000643 Aaron Jay Goodrum, M.D. vs. Agency For Health Care Administration Status: Closed Recommended Order on Monday, September 9, 2019.

Summary: Petitioner proved, by clear and convincing evidence, that he is rehabilitated from his disqualifying offense. Further, denial of his request for exemption would constitute an abuse of discretion. Recommend approval of exemption request.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AARON JAY GOODRUM, M.D.,

Petitioner,

vs. Case No. 19 - 0643

AGENCY FOR HEALTH CARE

ADMINISTRATION,

Respondent.

_______________________________/

RECOMMENDED ORDER

The final hearing in this matter was conducted before

J. Bruce Culpepper, Administrative Law Judge of the Division of

Administrative Hearings, pursuant to sections 120.569 and

1 20.57(1), Florida Statutes (2018 ), 1/ on April 9, 2019, and

June 17 and 18, 2019 , by video teleco nference at sites in

Tallahassee and Tampa, Florida.

APPEARANCES

For Petitioner: Jeffrey Scott Howell, Esquire

Rickey L. Strong, Esquire

Kevin Brandon Taylor, Esquire

John Thomas Buchan, Esquire

Law Offices of Jeffrey S. Howell, P.A.

2898 - 6 Mahan Drive

Tallahassee, Florida 32308

Julie Gallagher, Esquire

Grossman, Furlow & Bayó, LLC

2022 - 2 Raymond Diehl R oad

Tallahassee, Florida 32308

For Respondent: Kimberly S. Murray, Esquire

Timothy Patrick Sparks, Esquire

Agency for Health Care Administration

2727 Mahan Drive , Mail Stop 3

Tallahassee, Florida 32308 - 5407

STATEMENT OF THE ISSUE S

The issues in this matter are whether Petitioner has shown

that he is rehabilitated from his disqualifying offense; and, if

so, whether a decision by the Agency for Health Care

Administratio n to deny Petitioner Ó s request for an exemption from

disqualification for Medicaid provider enrollment would

constitute an abuse of discretion.

PRELIMINARY STATEMENT

On April 11, 2018, Petitioner submitted a Request for

Exemption from Disqualification for Employment/Medicaid Provider

Enrollment to Respondent, Agency for Health Care Administration

( Ð AHCA Ñ ).

By correspondence dated June 15, 2018, AHCA notified

Petitioner that it denied his Request for Exemption.

On October 26, 2018, Petitioner timely requeste d an

administrative hearing challenging AHCA Ó s action. On F ebruary 5,

2019, AHCA referred the matter to the Division of Administrative

Hearings ( Ð DOAH Ñ ) and requested assignment to an Administrative

Law Judge ( Ð ALJ Ñ ) to conduct a chapter 120 evidentiary h earing.

The final hearing began on April 9, 2019. The hearing was

continued to June 17 and 18, 2019, at which time it was

completed. Petitioner testified on his own behalf. Petitioner

(and AHCA) presented the testimony of Vanessa Risch, Shanita

Council, Samantha Heyn, and Justin Senior. Petitioner also

offered the testimony of Greg Carney, M.D., Lina Goodrum,

Brent Price, M.D., and Cheryl Wieder. In rebuttal, AHCA offered

the testimony of Taylor Haddock. Petitioner Ós Exhibits 1

through 25 were admitte d into evidence. 2/ AHCA Ó s Exhibits 1

through 9 were admitted into evidence.

A three - volume Transcript of the final hearing was filed

with DOAH on May 10 and July 8, 2019. At the close of the

hearing, the parties were advised of a ten - day timeframe

fol lowing receipt of the hearing transcript at DOAH to file post -

hearing submittals. After the final hearing, Petitioner filed an

unopposed request to extend the filing deadline, which was

granted. 3/ Both parties timely filed Proposed Recommended Orders,

wh ich were duly considered in preparing this Recommended Order.

FINDING S OF FACT

1. Petitioner is a licensed radiologist seeking to reenroll

as a Medicaid provider in Florida. To participate in the Medicaid

program, health care providers apply to AHCA and must comply with

the background screening standards set forth in section 435.04 ,

Florida Statu t es .

2. AHCA is designated as the single state agency responsible

for administering and overseeing the Medicaid program in the State

of Florida. See §§ 409.902 and 409.913, Fla. Stat . AHCA is

responsible for conducting background screenings for employees who

provide specific types of services in health care facilities.

This responsibility includes approving individuals who desire to

enroll as Medicaid providers in order to render services to

Medicaid recipients. See §§ 4 09.907 and 435.04(4), Fla. Stat .

3. Petitioner has been licensed with the Florida Department

of Health, Board of Medicine, since May 2005 (license number

ME93275), and has remained in good stan ding since that date.

Petitioner practices at Price, Hoffman and Stone, a radiological

group located in St. Petersburg, Florida. Petitioner is part -

owner of their radiology practice.

4. From 2008 through December 2017, Petitioner was admitted

into the Medicaid p rogram through a ten - year Medicaid provider

agreement with AHCA. Accordingly, Petitioner was authorized to

receive reimbursement for covered services rendered to Medicaid

recipients.

5. During this time period, Petitioner treated Medicaid

rec ipients in Florida. At the final hearing, AHCA did not express

any concerns with Petitioner Ó s level of care during his decade

long participation in the Medicaid program. Neither did AHCA

present any evidence of complaints of abuse or negligence from the

Medicai d patients Petitioner served.

6. Petitioner Ó s Medicaid provider status expired in the

fall of 2017. To continue his participation in the Medicaid

program, Price, Hoffman and Stone applied to AHCA to renew

Petitioner Ó s Medicaid provider credential s. Petitioner Ó s

application required him to undergo the Level 2 background

screening process established in section 435.04. See

§§ 409.907(8) and 435.02, Fla. Stat.

7. Petitioner Ó s background screening revealed a criminal

offense. Specifically, on Augu st 11, 2007, Petitioner was

arrested for and charged with false imprisonment and battery. On

or about September 26, 2007, Petitioner pled guilty to one charge

of false imprisonment in violation of section 787.02 , Florida

Statutes (2007) (a felony of the th ird degree), as well as

misdemeanor battery in violation of section 784.03 , Florida

Statutes (2007) . The court accepted Petitioner Ó s guilty plea to

battery and entered a verdict of guilty. The court withheld

adjudication on the charge of false imprisonme nt. In September

2007, Petitioner was sentenced to three years of probation. He

was also ordered to pay court costs, as well as perform 50 hours

of community service. Petitioner completed his probation in

January 2010.

8. The Florida Board of Medicin e also reviewed Petitioner Ó s

criminal incident. Ultimately, after appearing before a

disciplinary hearing, the Board of Medicine formally reprimanded

Petitioner. Petitioner was also ordered to pay a $11,000 fine,

as well as complete 100 hours of communit y service. In addition,

Petitioner was directed to receive treatment from a psychiatrist

in the Professionals Resource Network Program for a period of

five years. However, the Board of Medicine allowed Petitioner to

retain his medical license and continu e the active practice of

radiology in Florida.

9 . T he fact that Petitioner is not currently an enrolled

Medicaid provider does not prevent him from treating Medicaid

recipients. Petitioner Ó s medical license is clear and active with

the Florida Board of M edicine. Therefore, he may render

radiological services to anyone in the State of Florida. However,

because AHCA will not authorize Petitioner to participate in the

Medicaid program, he cannot bill Medicaid for his medical

services. See § 409.907, Fla. Stat.

10 . Under section 435.04(2)(m), Petitioner Ó s guilty plea to

false imprisonment disqualifies him from participating as a

Medicaid provider in any AHCA regulated facility. Consequently,

in order to serve the Medicaid population, Petitioner requested

an exemption from disqualification as authorized under section

435.07. 4/ Petitioner submitted his application for exemption to

AHCA on April 11, 2018.

11. On June 15, 2018, after considering Petitioner Ó s

Request f or Exemption, AHCA issued a letter notif ying him that it

denied his application. As quoted in the letter, AHCA considered

several factors, including, but not limited to:

- the circumstances surrounding the criminal incident for

which an exemption is sought;

- the time period that has elapsed s ince 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.

The lett er did not contain any other details explaining the

denial except to state that, based on these factors, AHCA found

that Petitioner did not provide clear and convincing evidence of

his rehabilitation.

12. At the final hearing, Petitioner testified regar ding

how he is rehabilitated from his criminal background, and why he

should be granted an exemption from disqualification.

13. Petitioner initially described his current medical

practice. He is a board - certified radiologist, with a

subspecialty in muscu loskeletal imaging. He works out of two

offices in St. Petersburg and serves the greater Tampa Bay area.

A large part of Petitioner Ó s practice is devoted to women Ó s

diagnostic breast imaging, including mammographic, ultrasound,

and MRI detection of breas t cancer. Petitioner spends the

majority of his time reading films and images. However, his

practice occasionally calls for personal patient contact

including the performance of biopsies, aspirations, and

injections.

14. Regarding the 2007 criminal offe nse, Petitioner

described the facts and circumstances leading to his arrest and

guilty plea to false imprisonment. Petitioner testified that the

incident involved a woman he was dating at the time. One day, in

his apartment, she revealed to him that she was actually married.

Petitioner became intensely angry. He reacted physically. He

Ð grabbed her and held her down on the bed and restrained her. Ñ

He cut off her clothes with scissors. He Ð got on top of her and

wouldn Ó t let her go. Ñ He yelled at her a nd tried to get answers

from her. Petitioner then bound her hands and legs with tape.

She remained confined on his bed for up to five hours. She

eventually managed to free herself. She escaped his apartment

and alerted law enforcement. Petitioner was prom ptly confronted

and arrested.

15. In asserting that he is rehabilitated from his

disqualifying offense, Petitioner described a number of steps he

has taken to better himself. Petitioner initially explained

that, as part of his Professional Resource Network treatment for

the Florida Board of Medicine, he twice traveled to Kansas to be

evaluated by several psychologists and psychiatrists.

Thereafter, he was required to attend weekly meetings with a

local therapist for five straight years. In total, P etitioner

has been assessed by at least four psychiatrists and mental

health professionals since 2007. Petitioner represented that all

have concluded that he presents no danger to the public or his

patients.

16. Petitioner further expressed that he has participated

in (and continues to seek out) a number of continuing education

courses focused on domestic violence and anger management issues.

Petitioner declared that he has made a constant and determined

effort to address how he responds to anger and c ontrols his

emotional impulses, as well as how he must respect others Ó

boundaries.

17. In addition to his ongoing professional education,

Petitioner testified that he has devoted significant energy to

becoming a better person. For several years, he has v olunteered

every Saturday morning at The Spring of Tampa Bay, a domestic

violence center for Hillsborough County. Petitioner also

volunteers as a Little League coach, as well as with his church,

which he attends regularly with his family.

18. At the fi nal hearing, Petitioner openly discussed the

regret and shame he feels for his prior conduct. He readily

acknowledged the emotional and physical impact his actions had on

his former girlfriend. Petitioner stressed that he is extremely

remorseful for his behavior. Petitioner urged that he takes full

responsibility for his crime.

19. Petitioner further testified that he has fully

explained his criminal background on numerous occasions,

including to his wife, at least four mental health counselors,

the F lorida Board of Medicine, the Missouri Medical Board, the

Nevada Medical Board, numerous private insurance companies, the

American Board of Radiology, as well as his partners at his

radiologic clinic. Petitioner insisted that he has always been

candid and honest with AHCA when describing the incident.

20. No evidence indicates that Petitioner has been

arrested, charged, convicted, or otherwise involved in any

criminal activity since 2007.

21. At the final hearing, Petitioner offered the testimony

of s everal individuals to support his Request for Exemption.

Petitioner first called Brent Price, M.D., with whom Petitioner

practices at Price, Hoffman and Stone in St. Petersburg.

Dr. Price also specializes in radiology. Dr. Price hired

Petitioner at thei r radiology clinic in 2007.

22. Dr. Price testified that Petitioner is an intelligent

and skilled doctor. He has never seen Petitioner act

unprofessionally or endanger a patient in the 12 years they have

worked together. On the contrary, Dr. Price des cribed

Petitioner Ó s interactions with patients as Ð impeccable. Ñ

23. Dr. Price relayed that Petitioner personally informed

him of his criminal history shortly after Petitioner started

working at their clinic. Dr. Price stated that he could have

fired Peti tioner at that moment (or, at any time thereafter), but

he believes in second chances. Therefore, he decided to provide

Petitioner a path to partnership. Dr. Price maintained that he

has never seen Petitioner not be remorseful for his past criminal

condu ct.

24. Dr. Price also articulated that Petitioner Ó s inability

to bill Medicaid for his services places a significant burden on

their practice. Currently, their clinic must schedule Medicaid

recipients in a manner that allows them to see a doctor who c an

charge for his or her treatment. This process can delay medical

care for the patient.

25. Petitioner presented the testimony of Dr. Gregory

Carney, a fellow radiologist, as well as a close personal friend.

Dr. Carney has known Petitioner for about 14 years. Dr. Carney

supervised Petitioner during his fellowship at the University

Diagnostic Institute through the University of South Florida.

26. Dr. Carney described Petitioner as an Ð excellent, Ñ

Ð even - keeled, Ñ Ð insightful, Ñ and Ð very competent Ñ do ctor. He

further relayed that he has watched Petitioner interact with

many, many patients. He is not aware of anyone who was ever in

danger in Petitioner Ó s care. On the contrary, Dr. Carney

asserted that Petitioner is extremely good with patients and

ad ept at making them feel at ease.

27. Cheryl Wieder testified in support of Petitioner.

Ms. Wieder is a radiologic technologist who has worked for

Petitioner Ó s radiology clinic for 32 years. She first met

Petitioner when he joined the clinic, 12 years ag o. Petitioner

is her supervisor. Ms. Wieder estimated that she and Petitioner

have treated approxima tely 3,000 patients together.

28. Regarding Petitioner Ó s character and demeanor,

Ms. Wider expressed that Petitioner is Ð amazing Ñ with patients.

She de scribed him as Ð calming, Ñ Ð reassuring, Ñ and Ð very caring. Ñ

She has never seen Petitioner angry or act unprofessionally at

the clinic. On the contrary, Ms. Wider voiced that Petitioner Ó s

compassion and empathy towards his patients has helped numerous

wome n navigate their fight against breast cancer. Ms. Wieder

declared that Petitioner is the best rad iologist in their

community.

29. Ms. Wieder learned of Petitioner Ó s criminal incident

from Dr. Price shortly after he started with Price, Hoffman and

Stone . However, she insisted that she has never seen any patient

placed at risk in Petitioner Ó s care. Ms. Wieder further stated

that whenever Petitioner meets with a patient, without exception,

he has a technologist p resent in the room with him.

30. Finall y, Ms. Wieder disclosed that Petitioner

personally diagnosed and treated her for breast cancer. She

proclaimed that Petitioner saved her life.

31. Finally, Petitioner Ó s wife, Lina Goodrum, testified on

behalf of her husband. Ms. Goodrum stated that sh e met

Petitioner in 2009, and they have been happily married since

2012. They have two children.

32. Ms. Goodrum expressed that Petitioner fully explained

his past to her. He never hid the details of his crime from her,

and he is very remorseful for h is actions. Ms. Goodman further

conveyed that she has never felt threatened by him.

33. Ms. Goodrum urged that her husband is a kind, patient,

and good father. She believes that he has learned from his

mistakes. Ms. Goodrum also relayed that Petition er is involved

in a strong peer group.

34. At the final hearing, AHCA presented several

individuals who were involved in its review of Petitioner Ó s

application to explain AHCA Ó s procedures for background

screenings and requests for exemptions for enrollm ent in the

Medicaid program. AHCA first called Vanessa Risch who currently

serves as AHCA Ó s Operations and Management Consultant Manager .

As part of her duties, Ms. Risch supervises AHCA Ó s background

screening unit. Her unit reviews background screening s for all

persons seeking eligibility to become Medicaid providers. The

background screening unit handles approximately 150 files at any

one time, per month.

35. Ms. Risch initially relayed that the Secretary of AHCA,

as its agency head, is the sole ap proval authority for all

requests for exemption submitted to AHCA. (Justin Senior was

AHCA Secretary at the time Petitioner submitted his request for

exemption.) However, before the Secretary grants or denies a

request for exemption, Ms. Risch Ó s section reviews and gathers

information on each application.

36. Ms. Risch explained that when a background screening

reveals that an applicant has a Ð disqualifying offense Ñ under

section 435.04, AHCA Ó s first step is to issue a disqualification

letter notifying the applicant that he or she is not eligible for

Medicaid provider enrollment. The letter also informs the

applicant of their right to request an exemption from the

disqualifying offense. Regarding Petitioner, AHCA sent him a

disqualifying letter in or around October 2017.

37. Thereafter, AHCA offers to conduct a telephonic hearing

during which the applicant has the opportunity to explain the

facts and circumstances surrounding the disqualifying offense.

In this matter, at Petitioner Ó s request, AHCA conducted a

teleconference on June 12, 2018. Ms. Risch led the discussion

using a standard set of questions. She was joined by Shanita

Council, a Health Care Services and Facilities Consultant for

AHCA, as well as Antonia Lozada, an AHCA attorney. Petit ioner Ó s

legal counsel participated with Petitioner over the phone.

38. Although Ms. Risch did not offer a recommendation to

Secretary Senior regarding Petitioner Ó s application, at the final

hearing she disclosed that, after speaking with Petitioner during

the teleconference, she believed that he was remorseful for his

past criminal conduct.

39. Shanita Council testified regarding her role in AHCA Ó s

review of Petitioner Ó s request for exemption. Ms. Council was

the exemption analyst AHCA assigned to proce ss Petitioner Ó s

application.

40. Ms. Council explained that Petitioner Ó s request for

exemption was initially received through the AHCA clearinghouse,

and assigned for processing. After she received Petitioner Ó s

application, she reviewed it to ensure th at his documentation was

complete. Thereafter, because Petitioner Ó s crime was considered

a Ð serious offense, Ñ she personally set up the teleconference

with Petitioner and his legal counsel.

41. After the teleconference, Ms. Council completed an

Exemption Decision Summary. Ms. Council described this document

as a summary of the application information , which could later be

reviewed by the AHCA Secretary. Thereafter, she forwarded

Petitioner Ó s entire exemption case file, through Samantha Heyn,

to Secretar y Senior for final determination. Ms. Counci l

expressed that she made no recommendation on the Exemption

Decision Summary regarding whether Petitioner Ó s application

should be granted or denied.

42. As with Ms. Risch, following the teleconference,

Ms. Cou ncil did not have the impression that Petitioner was not

remorseful for his past actions, or that he was not honest or

forthcoming during the teleconference.

43. Samantha Heyn, AHCA Ó s Senior Management Analyst

Supervisor, Ð staffed Ñ Petitioner Ó s request fo r exemption

application with Secretary Senior. Ms. Heyn explained that

Petitioner Ó s case file included a number of documents for

Secretary Senior to review. This information included

Ms. Council Ó s Exemption Decision Summary, worksheets from the

teleconfe rence, as well as written notes from the background

screening staff.

44. Ms. Heyn, in li ne with Ms. Risch and Ms. Counci l, was

careful to explain that AHCA Ó s background screening staff does

not make any recommendations whether to approve or deny an

appl ication. The Secretary is the sole decision - maker regarding

whether a request for exemption is granted.

45. Ms. Heyn met with Secretary Senior weekly to review

pending exemption requests. Each meeting was scheduled to last

an hour during which the Secr etary would review approximately

30 to 35 applications on average.

46. Ms. Heyn took Petitioner Ó s request for exemption to

Secretary Senior in June 2018. During their meeting, Ms. Heyn

recalled that Secretary Senior reviewed the Exe mption Decision

Summar y and asked her several questions about Petitioner Ó s

application. Ms. Heyn also relayed that, although the

teleconference was recorded, Secretary Senior did not listen to

the audio recording. Thereaf ter, Secretary Senior informed

Ms. Heyn that he was den ying Petitioner Ó s request. Secretary

Senior did not explain the basis for his decision. He commented,

however, that Petitioner could reapply with the next AHCA

Secretary.

47. Justin Senior was Secretary of AHCA in June 2018. (He

departed AHCA in Janu ary 2019.) As Secretary, he made the

decision to deny Petitioner Ó s application for exemption from

disqualification.

48. At the final hearing, Mr. Senior testified that, to the

best of his recollection, he denied Petitioner Ó s exemption

request based on Ð a combination of factors. Ñ These factors

included the lack of time that had elapsed between the offense

and the date of review (approximately ten years). Mr. Senior was

also alarmed at the seriousness of Petitioner Ó s crime.

Mr. Senior expressed that the fact that Petitioner Ð kidnapped a

woman and bound her to a bed, [had] taken her clothes off and

held her for an . . . undetermined period of time Ñ was a

significant factor in his consideration.

49. Mr. Senior further stated that Petitioner included

seve ral remarks on his application which indicated to him that

Petitioner did not regard Ð his offense as particularly serious. Ñ

Mr. Senior based this conclusion on Petitioner Ó s comments that he

did not Ð serve any jail time Ñ and paid a Ð nominal Ñ fine, as well

as a psychological evaluation wherein Petitioner described his

crime as Ð a mild degree of physical assault that he shouted at

her for an hour. Ñ Pet . Ex . 23 and 25. To Mr. Senior, Petitioner

seemed to be making light of the crime. Neither did Petitioner

appear adequately remorseful based on his written application.

50. In describing his standard practice, Mr. Senior

explained that he had no set criteria for approving or denying a

request for exemption. However, the two most noteworthy factors

he conside red were the seriousness of the offense and the time

that had passed since the offense. Mr. Senior added that he

considered himself fairly lenient in granting exemption requests.

He rarely denied an application.

51. In Petitioner Ó s case, however, the circumstances

surrounding Petitioner Ó s particularly Ð memorable Ñ crime cast

serious doubts on his rehabilitation. Consequently, after

reviewing Petitioner Ó s explanation, as well as the information

included in the application, Mr. Senior determined that

Pet itioner had failed to present clear and convincing evidence of

rehabilitation.

52. After denying Petitioner Ó s request for exemption,

Mr. Senior returned Petitioner Ó s application to Ms. Heyn for

processing. On June 15, 2018, AHCA issued a letter notifying

Petitioner that it denied his Request for Exemption.

53. Upon careful consideration of the evidence presented at

the final hearing, the undersigned finds that Petitioner

demonstrated, by clear and convincing evidence, that he is

rehabilitated from his disqualifying offense. The credible and

earnest testimony from Petitioner, Dr. Price, Dr. Carney,

Ms. Wieder, and Ms. Goodrum unquestionably establishes that

Petitioner is now a responsible person who is rehabilitated from

his 2007 criminal offense. Furt her, Petitioner has provided

radiologic services to his community for over 12 years (te n of

those years as a Medicaid p rovider) without any evidence of abuse

or unprofessionalism. Petitioner clearly proved that he will not

present a danger to any Medicaid recipients he treats.

54. Further, as more fully addressed below, the undersigned

concludes that if AHCA were to deny Petitioner Ó s Request for

Exemption on this record , and refuse to allow Petitioner to

reenroll as a Medicaid provider, such denial wou ld constitute an

abuse of discretion. Therefore, Petitioner has met his burden of

demonstrating that AHCA should grant his Request f or Exemption

from Disqualification under section 435.07.

CONCLUSIONS OF LAW

55. DOAH has jurisdiction over the parties to and subject

matter of this proceeding pursuant to sections 120.569,

120.57(1), and 435.07(3)(c), Florida Statutes.

56. Petitioner seeks to reenroll as a Medicaid provider in

the State of Florida. To qualify for this certification,

Petitioner must undergo the background screening process as

provided in chapter 435. See §§ 409.907(8)(b), 408.809(1)(a),

and 435.04(4), Fla. Stat.

57. Section 409.907 , Florida Statutes, states, in pertinent

part:

Medicaid provider agreements. Ï [AHCA] may

make payments for me dical assistance and

related services rendered to Medicaid

recipients only to an individual or entity

who has a provider agreement in effect with

the agency . . . .

* * *

(8) Each provider . . . seeking to

participate in the Medicaid program must

submit a complete set of his or her

fingerprints to [AHCA] for the purpose of

conducting a criminal history record check.

* * *

(b) Background screening shall be conducted

in accordance with chapter 435 and

s. 408.809 .

58. Section 408.809 , Florida Statutes, states, in pertinent

part:

(1) Level 2 background screening pursuant to

chapter 435 must be conducted through [AHCA]

on each of the following persons, who are

conside red employees for the purposes of

conducting screening under chapter 435:

(a) The licensee, if an individual.

59. Section 435.04 establishes the L evel 2 screening

standards and states, in pertinent part:

(2) The security background investigations

unde r this section must ensure that no

persons subject to the provisions of this

section have been arrested for and are

awaiting final disposition of, have been

found guilty of, regardless of adjudication,

or entered a plea of nolo contendere or

guilty to, or have been adjudicated

delinquent and the record has not been sealed

or expunged for, any offense prohibited under

any of the following provisions of state law

or similar law of another jurisdiction:

* * *

(m) Section 787.02, relating to false

im prisonment.

60. Thereafter, section 409.907 instructs that:

(9) Upon receipt of a completed, signed, and

dated application, and completion of any

necessary background investigation and

criminal history record check, [AHCA] must:

(a) Enroll the applica nt as a Medicaid

provider upon approval of the provider

application . . . ; or

* * *

(b) Deny the application if [AHCA] finds

that it is in the best interest of the

Medicaid program to do so.

61. Petitioner Ó s criminal history investigation r evealed

his guilty plea in 2007 to the offense of false imprisonment (a

felony) in violation of sectio n 787.02, Florida Statutes (2007 ).

Petitioner Ó s crime is a Ð disqualifying offense Ñ under section

435.04(2)(m). As a result, AHCA disqualified Petitioner from

participating in the Medicaid program per its authority in

section 409.907(9)(b). 5/

62. AHCA, however, may grant an exemption from

disqualification for individuals who are otherwise disqualified

by past criminal offenses as provided in section 435 .07. See

also Fla. Admin. Code R . 59A - 35.090(4). Section 435.07 states,

in pertinent part:

Exemptions from disqualification. Ï Unless

otherwise provided by law, the provisions of

this section apply to exemptions from

disqualification for disqualifying of fenses

revealed pursuant to background screenings

required under this chapter, regardless of

whether those disqualifying offenses are

listed in this chapter or other laws.

(1)(a) The head of the appropriate agency

may grant to any employee otherwise

disq ualified from employment an exemption

from disqualification for:

1. Felonies for which at least 3 years have

elapsed since the applicant for the exemption

has completed or been lawfully released from

confinement, supervision, or nonmonetary

condition im posed by the court for the

disqualifying felony;

* * *

(3)(a) In order for the head of an agency to

grant an exemption to any employee, the

employee must demonstrate by clear and

convincing evidence that the employee should

not be disqualified f rom 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 or circumstances indicating that the

employee will not present a danger if

employment or cont inued employment is

allowed.

* * *

(c) The decision of the head of an agency

regarding 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 Ó s intended action is an abuse of

discretion.

63. In reviewing a request for an exemption from

disqualification, the ALJ is charged with making the factual

determination whether, based on the evidence adduced in a de novo

hearing conducted pursuant to chapter 120, Petitioner has shown

rehabilitation by clear and convincing evidence. See

§ 435.07(3)(a) and (c), Fla. Stat.

64. Clear and convincing evidence is a heightened standard

that requires more proof than a mere preponderance of the

evidence. Clear and convincing evidence demands that the

evidence Ð 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 in

confusion as to t he facts at 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. Ñ In re Davey , 645 So. 2d

398, 404 (Fla. 1994); Slomowitz v. Walker , 429 So. 2d 797, 800

(Fla. 4th DCA 1983).

65. The undersigned finds that Petitioner met his burden of

proving, by clear and convincing evidence, that he is

rehabilitated from his 2007 disqualifying offense. Initially, at

the fi nal hearing, Petitioner credibly attested that he fully

acknowledges and understands the seriousness of his crime.

Petitioner earnestly regret s his actions and displayed genuine

remorse.

66. Further, Petitioner compellingly testified that he has

worked extremely hard to address the unacceptable behavior that

resulted in his criminal offense. Towards this end, Petitioner

underwent extensive psychological counseling over the five years

following his 2007 crime. He successfully completed all the

terms of probation imposed in his criminal case, as well as the

conditions levied by the Florida Board of Medicine. In addition

to participating in weekly counseling sessions, Petitioner

voluntarily pursued continuing education courses relating to

domestic violen ce and anger management. He also took part in a

domestic violence intervention course. At the final hearing,

Petitioner convincingly represented that he has learned how to

handle stressful situations with positive coping skills.

67. Finally, since 2007, Petitioner has conducted an active

and successful radiologic practice in Florida treating thousands

of patients in his community. Testimony at the final hearing

established that Petitioner is considered a highly competent,

caring, and well - respected phys ician. No evidence was presented

indicating that Petitioner presents a danger or threat to those

he treats. On the contrary, the evidence in the record

demonstrates that persons in his local community and elsewhere

have benefited, and will continue to be nefit, from Petitioner Ó s

radiologic services. Therefore, based on the evidence adduced at

the final hearing, Petitioner proved, by clear and convincing

evidence, that he is rehabilitated from his disqualifying

offense.

68. Because Petitioner met his bu rden of proving that he is

rehabilitated from his past criminal offense, the next

determination is whether the agency head Ó s intended action to

deny Petitioner Ó s R equest f or E xemption is an abuse of

discretion. § 435.07(3)(c), Fla. Stat.; see also J.D. v. Dep Ó t

of Child. & Fams. , 114 So. 3d 1127, 1132 (Fla. 1st DCA 2013).

69. An agency abuses its discretion Ð when the . . . action

is arbitrary, fanciful, or unreasonable, which is another way of

saying that discretion is abused only where no reasonable

[per son] would take the view adopted. Ñ Canakaris v. Canakaris ,

382 So. 2d 1197, 1203 (Fla. 1980); see also J.D. v. Dep Ó t of

Child. & Fams. , 114 So. 3d at 1130 (stating that under the abuse

of discretion standard, Ð [i]f reasonable men could differ as to

the pr opriety of the action taken by the [lower tribunal], then

the action is not unreasonable and there can be no finding of an

abuse of discretion Ñ ). Accordingly, if reasonable persons could

differ as to the appropriateness of AHCA Ó s decision to deny

Petition er Ó s Re quest f or Exemption, AHCA Ó s decision is not

unreasonable and, thus, not an abuse of discretion.

70. In determining the ultimate legal issue of whether the

agency head Ó s intended action is an Ð abuse of discretion, Ñ the

ALJ is to evaluate that questi on based on the facts determined

from the evidence presented at the de novo hearing. However,

even if the ALJ determines that the agency head Ó s proposed action

constitutes an abuse of discretion, the agency is not bound by

the ALJ Ó s determination, althoug h the agency Ó s review is

circumscribed by the standards in section 120.57(1)( l ). J.D. v.

Dep Ó t of Child. & Fams. , 114 So. 3d at 1132, 1133. Further, the

agency head Ð must articulate the rationale for doing so in order

to facilitate judicial review. Ñ J.D . , 114 So. 3d at 1131; see

also A.P. v. Dep Ó t of Child. & Fams . , 230 So. 3d 3, 6 (Fla. 4th

DCA 2017) .

71. The undersigned concludes that AHCA Ó s intended action to

deny Petitioner Ó s Request f or Exemption is an abuse of discretion

on this record . Based on the competent substantial evidence

presented at the final hearing, denying Petitioner the opportunity

to reenroll in the Medicaid program is not reasonable.

72. The first of two primary bases for this conclusion is

the fact that when (Secretary) Senior considered Petitioner Ó s

application in June 2018, he did not have access to Petitioner Ó s

live testimony. (Mr. Senior did not take advantage of the option

to listen to the audiotape of Petitioner Ó s teleconference.)

Consequently, when Mr. Senior formulated his decision, he did not

have the benefit of hearing Petitioner Ó s compelling and heartfelt

personal testimony. Neither did Mr. Senior have the opportunity

to study Petitioner Ó s composure and demeanor when describing his

criminal behavior, the shame he fe els at his actions, and his

commitment to becoming a better person. In addition, Mr. Senior

did not observe the mitigating, sworn testimony from Petitioner Ó s

four supporting witnesses. 6/

73. Based on the compelling and credible testimony received

at th e final hearing, the undersigned finds that any hesitation by

the AHCA Secretary to grant Petitioner Ó s exemption due to a

perceived lack of candor or remorse in the written application is

unwarranted and unreasonable.

74. Secondly, after Petitioner Ó s cr iminal act in 2007, he

participated in the Medicaid program for over ten years (2008 -

2017). During this time, he provided radiology services to

Medicaid recipients. At the final hearing, however, AHCA did not

present any evidence that (Secretary) Senior, or any AHCA

analysts, considered Petitioner Ó s extended history as a Medicaid

provider in determining whether Petitioner should be allowed to

reenroll in the Medicaid program.

75. Further, AHCA did not introduce any evidence at the

final hearing remotely suggesting that Petitioner posed a risk or

threat to the Medicaid recipients he treated from 2008 through

2017. On the contrary, Petitioner has practiced professionally

and propitiously for 12 years in a radiology group where he has

been closely observed , on a day - to - day basis, by other physicians

and technologists. The evidence in the record uniformly shows

that Petitioner provided meaningful, quality, and skilled medical

care to all of his patients.

76. Based on this record, it is not reasonable for AHCA to

conclude that, at this date, Petitioner Ó s criminal offense from

2007 now renders him unfit to participate in the Medicaid program.

AHCA did not offer any justification, nor can the undersigned find

one, why, after over ten years of effectively tr eating Medicaid

recipients without incident, Petitioner would now endanger his

patients if he was reimbursed for his services to Medicaid

patients . Petitioner Ó s resolute efforts to rehabilitate himself,

together with the exemplary manner in which he has c onducted his

personal and professional life over the past 12 years, should

alleviate any reasonable concerns AHCA maintained about

Petitioner Ó s criminal history.

77. Accordingly, with no evidence showing that Petitioner

poses a risk to the Medicaid popu lation AHCA is tasked to protect,

it would be unreasonable for AHCA to maintain its position that

Petitioner should not be allowed to reenroll as a Medicaid

provider.

78. I n light of his compelling and credible testimony, the

undersigned finds that Peti tioner met his burden of

demonstrating, by clear and convincing evidence, that he is

rehabilitated from his 2007 disqualifying offense. Further, upon

careful consideration of the competent substantial evidence in the

record, the undersigned concludes that no reasonable person would

take the view that Petitioner should be denied an exemption from

disqualification. Consequently, if AHCA were to deny

Petitioner Ó s exemption request, that action would constitute an

abuse of discretion.

RECOMMENDATION

Based o n 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 Ó s request

for an exemption from disqualification from enrollment in the

Medicaid prog ram.

DONE AND ENTERED this 9th day of September , 2019 , in

Tallahassee, Leon County, Florida.

S

J. BRUCE CULPEPPER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tal lahassee, 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 9th day of September , 2019 .

ENDNOTE S

1/ All stat utory references are to the 2019 Florida S tatutes,

unless otherwise noted.

2 / Petitioner Ó s Exhibit 23 is the video deposition of Dr. Brian

Gadbois, which was offered in lieu of live testimony.

Petitioner Ó s Exhibit 25 is a transcript of that deposition.

3 / By requesting to extend the deadline for filing a post - hearing

submission beyond ten days after the transcript was filed at

DOAH, the 30 - day time period for filing the recommended order was

waived. See Fla. Admin. Code R. 28 - 106.216(2).

4 / Prior to this matter, Petitioner submitted an init ial Request

for Exemption from Disqualification to AHCA on October 27, 2017.

AHCA denied this request on or about November 20, 2017.

5 / The undersigned notes that section 435.04(4) specifically

addresses Ð screening applicability to participate in the Me dicaid

program. Ñ Section 435.04(4)(a) lists six categories of

disqualifying offenses including Ð moral turpitude. Ñ In this

matter, however, AHCA reviewed Petitioner Ós application for

reenrollment as a Medicaid provider using the offenses found in

section 435.04(2). Neither party addressed the appropriateness

of using one subsection of section 435.04 over the other in

considering an application to participate in the Medicaid

program. Consequently, the undersigned did not review this issue

in this administ rative proceeding.

6/ It is well - settled that i n a fact - driven case, Ð great weight

is given to the findings of the administrative law judge, who has

the opportunity to hear the witnesses Ó testimony and evaluate

their credibility. Ñ Yerks v. Sch. Bd. of B roward Cty. , 219 So.

3d 844, 848 (Fla. 4th DCA 2017); see also Walker v. Fla. Dep Ó t of

Bus. & Prof Ó l Reg. , 705 So. 2d 652, 655 (Fla. 5th DCA 1998)

(J. Dauksch, concurring specially)( Ð There is no substitute for

seeing and hearing persons testify. There is also scant

substitute for the experience hearing officers, trial judges and

professional - board members have in ferreting out the truth in

testimony. Ñ ); and Ft. Myers Real Estate Holdings, LLC v. Dep Ó t

of Bus. & Prof Ó l Reg. , 146 So. 3d 1175 (Fla. 1st DCA 20 14)

(J. Wetherell concurring)( Ð [I]t is solely the function of the ALJ

to assess the persuasiveness of the evidence as a whole. Ñ ) .

Whether the competent substantial evidence establishes that

AHCA Ó s intended action is an Ð abuse of discretion Ñ in this

Ð de n ovo Ñ administrative proceeding is based on and measured by

all the evidence and testimony adduced during the final hearing.

See § 120. 57(1)( l ), Fla. Stat. Therefore, the undersigned Ó s

analysis may include evidence and observations AHCA did not

previously contemplate. Similarly, the undersigned may disregard

unproven or unsupported evidence that AHCA considered in making

its denial. See J.D. v. Dep Ó t of Child. & Fams. , 114 So. 3d at

1132 - 33; and Citrus Cent. v. Gardner , 569 So. 2d 936, 937 (Fla.

1st DCA 1990)( Ð a hearing de novo may encompass the presentation

of new and additional evidence, by which the matter might be

determined as if it had not been previously addressed. Ñ ).

COPIES FURNISHED:

Jeffrey Scott Howell, Esquire

Jeffrey S. Howell, P.A.

2898 - 6 Mahan Drive

Tallahassee, Florida 32308

(eServed)

Kimberly S. Murray, Esquire

Agency for Health Care Administration

Mail Stop 3

2727 Mahan Drive

Tallahassee, Florida 32308 - 5407

(eServed)

Timothy Patrick Sparks, Esquire

Agency for Health Care Admi nistration

Mail Stop 3

2727 Mahan Drive

Tallahassee, Florida 32308

(eServed)

Julie Gallagher, Esquire

Grossman, Furlow & Bayó, LLC

2022 - 2 Raymond Diehl Road

Tallahassee, Florida 32308

(eServed)

Kevin Brandon Taylor, Esquire

Law Offices of Jeffrey S. Ho well, P.A.

2898 - 6 Mahan Drive

Tallahassee, Florida 32308

(eServed)

Rickey L. Strong, Esquire

Jeffrey S. Howell, P.A.

2898 - 6 Mahan Drive

Tallahassee, Florida 32308

(eServed)

John Thomas Buchan, Esquire

Jeffrey S. Howell, P.A.

2898 - 6 Mahan Drive

Talla hassee, Florida 32308

(eServed)

Richard J. Shoop, Agency Clerk

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)

Kim Kellum, Esquire

Agency for Health Care Administration

2727 Mahan D rive, Mail Stop 3

Tallahassee, Florida 32308

(eServed)

Thomas M. Hoeler, Esquire

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(eServed)

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.