19-006185 Maria Clacher vs. Agency For Health Care Administration Status: Closed Recommended Order on Monday, March 23, 2020.

Summary: Petitioner demonstrated rehabilitation by clear and convincing evidence.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

M ARIA C LACHER ,

Petitioner ,

vs. Case No. 19 - 6185

A GENCY F OR H EALTH C ARE

A DMINISTRATION ,

Respondent .

/

R ECOMMENDED O RDER

On January 9 , 2020, Administrative Law Judge Yolonda Y. Green, of the

Division of Administrative Hearings (ÑDivisionÒ), conducted a hearing

pursuant to section 120.57(1), Florida Statutes (2019), by video -

teleconference with locations in Tallahassee and Port St. Lucie, Florida.

A PPEARANCES

For Petitioner: Theodore Charles Shafer, Esquire

T. Charles Shafer, Attorney at Law PLLC

309 Orange Avenue

Fort Pierce, Florida 34950

For Respondent: Richard J. Santurri, Esquire

Agency for Health Care Administration

Building 3, Room 3428A

2727 Mahan Drive

T allahassee, Florida 32308

S TATEMENT OF T HE I SSUE S

The issue s to be determined are w hether Petitioner should be granted an

ex emption from disqualification from employment in a position of trust ; and,

if so, whether RespondentÔs intended agency action to deny her request for an

exemption is an abuse of discretion.

P RELIMINARY S TATEMENT

In a letter dated October 3, 2019 , the Agenc y for Health Care

Administration (ÑRespondentÒ or ÑAHCA Ò) no tified Maria Clacher

(Ñ Petitioner Ò or ÑMs. ClacherÒ) that her request for exemption from

disqualification from employment had been denied. As a result of the agency

action, Petitioner was determin ed to not be eligible to be employed or enrolled

as a M edicaid provider.

In re sponse to the denial, Ms. Clacher timely requested a forma l

administrative hearing to dispute AHCAÔs denial of her exemption request.

On November 20, 2019, AHCA referred this ma tter to the Division for

assignment of an administrative law judge (ÑALJÒ) to conduct the formal

hearing.

On November 21, 2019, t his matter was assigned to ALJ June C.

McKinney. ALJ McKinney scheduled this matter for a formal hearin g by

video teleconferen ce for January 9, 2 020. O n January 8, 2020 , t his case was

transferred to the undersigned.

On December 30, 2019, the parties filed a Joint Pre - Hearin g Stipulation

in which they agreed to the admission of certain facts , which will be

incorporated in the F i n dings of F act below , to the extent relevant .

On January 9 , 2020, t he hearing commenced as scheduled . At the final

hearing, Petitioner testified on her own behalf and presented t he testimony of

two witnesses: Margie Clacher (PetitionerÔs sister) and Fran cine Russo

(PetitionerÔs friend) . PetitionerÔs Exhibits 1 through 4 were admitted .

Respondent presented testimony of Vanessa Risch ( o perations m anagement

c o nsultant, m anager for AHCA). RespondentÔs Exhibits 1 through 12 were

admitted.

The Transcript of th e final hearing was filed with the Division on January

22, 2020 . At the conclusion of the hearing, the parti es requested 30 days to

submit proposed recommended o rders (ÑPROsÒ). Thereafter, the parties

timely filed PROs, which have been carefully considered in preparation of

this Recommended Order.

Unless otherwise indicated, all statutory referenc es are to Florida

Statutes (2019 ). 1

F INDINGS OF F ACT

Based on the evidence presented at hearing and the stipulated facts, the

following Findings of Fact are made:

1. Petitioner is a 57 - year - old woman seeking exemption from

disqualification so she may continue to provide care to her sister. In order to

provide care, she must be approved to provide care to the elderly and

vulnerable adults.

2. Petitioner has taken care of her disabled sister for a number of yea rs ,

and seeks to continue providing care for her as a Medicaid health care

provider. As a result, she is required to under go a Level 2 criminal

background screening .

3. AHCA is the state agency charged with pr otecting vulnerable persons

such as Medicaid recipients and the Medicaid program, and in that capacity,

it maintains discretion to approve or deny requests for exemption .

1 Because a final order has not yet been issued for this case, Petitioner's applicati on for exempt ion is

governed by current law. See E.J. v. DepÓt of Child. & Fams. , 219 So. 3d 946 (Fla. 3rd DCA 2017) ; See

also Ag. for Health Care Admin. v. Mount Sinai Med. Ctr., 690 So. 2d 689, 691 (Fla. 1st DCA 1997).

4. When evaluating a request for exemption, AHCA considers the

circumstances surrou nding the disqualifying offense, nature of the offense,

rehabilitation since the offense, time that h as passed since the offense, the

degree of harm caused to the victim, if any, and any subsequent criminal

offenses.

5. Petitioner completed a background s creening a pplication for e xemption

from disqualification and submitted it to AHCA . AHCA conducted a

background screening which revealed that on May 3, 2012 , Petitioner was

arrested for falsifying rec ords in violation of section 839 .13(2)(c) , Florida

S tatut es (2011) , a third - degree felony. On September 6, 2012 , Petitioner

entered a plea of nolo contendere to falsifying records of the Department of

Children and Families Services, with adjudication withheld , 2 and was

ordered to serve two years of probation , an d pay fines and court costs in the

amount of $2,193.00. Petitioner completed the terms of her probation on

August 20, 2014.

6 . On July 14, 2014, approximately one month before her probation ended,

Petitioner was arrested for violation of probation (VOP) , for failure to pay the

probation supervision costs and court ordered fine, related to the case

involving the disqualifying offense. At hearing, Petitioner testified that she

was unable to pay the fine and costs becaus e she was unemployed. On

August 4, 201 4, upon motion filed by the assistant state attorney, the VOP

case was dismissed. Petitioner completed payment of the fees and costs on

January 20, 2017.

7. No evidence was presented that indicates Petitioner has been involved

with law enforcement since 2014 .

8. At the time of arrest for the disqualifying offense , Petitioner was

employed by Family Preservation Services of Florida, a sub - contractor for

Department of Children and Families (ÑDCFÒ) , as a case manager .

2 Although the Order of Probation was entered on September 6, 2012, it was dated for August 21, 2012,

nunc pro tunc (effective date).

PetitionerÔs arrest stemmed from allegati ons that , over a period of three to

four months, Petitioner submitted several forms attesting that she conducted

in - home visits w ith children she was responsible for monitoring .

9. T he reports involved 13 visits for five separate families , and i t was

disc overed that Petitioner had not conducted the home visits as she falsely

reported . Ms. ClacherÔs caseload included Ñhigh - riskÒ families where there

were prior reports of substance abuse and domestic violence. Thus , the

children involved would be considered a vulnerable population.

10 . PetitionerÔs journey in request ing an exemption was no t a clear path.

11 . On October 6, 2014, as the result of a background screening, AHCA

issued a l etter to the Petitioner notifying her that she was disqualified from

working for a Medicaid healthcare provider , pursuant to s ections 435.04,

408.809(4), 409.907, Florida Statutes (2014) , due to the May 14, 2012, arrest

for a Ñpublic order crime.Ò Although not an enumerated offense at that time ,

AHCA considered falsifying r ecords a di squalifying offense because AHCA

classified falsifying records as a Ñpublic order crime . Ò 3

12 . Petitioner first applied for an exemption from disqualification on or

about February 7, 2018.

13. O n March 27, 2018, AHCA issued a letter to Petit ioner notifying her

that it no longer interpreted her criminal charge (falsifying records) to be a

disqualifying offense, and , thus , it would be rescinding her disqualification

fr om employment. Due to the rescission of the disqualification , Petitioner did

not pursue an e xemption at that time .

14. Although falsifying records was not an enumerated disqualifying

offense when Petitioner underwent the prior background screening s , on

July 1, 2018 , the applicable statute was amended in July 2018 making

falsifying records an enumerated disqualifying offense. § 435.04(b)(6),

Fla. Stat.

15 . On August 13, 2019, Petitioner received her third letter stating she

was disqualified from working as a M edicaid healthcare provider because of

her disqualifying offense.

16 . On August 29, 2019, Petitioner submitted an application for an

exemption from disqualification for the second time. At that point, Petitioner

had worked as a caregiver from 2014 through 2019 without incident. During

that time period as a caregiver , she pr imarily provided care to her sister.

17 . I n her application , Petitioner indicated that she has earned a m asterÔs

degree since the disqualifying offense . She has not complet ed any additional

training or classes , nor has she received any other awards or r ecognition

since her disqualifying offense.

18 . Petitioner submitted four reference letters . The first le tter was from a

former colleague , Dr. Michael Kessler, a psychologist, who worked with

Petitioner when she was working as a social worker in New York . He stated

that P etitioner is a hard - working an d caring person who has provided

primary care to her sister. He did not indicate in the letter whether he was

aware of the charges that lead to the disqualification off ense. The second

letter was authored by PetitionerÔs friend of 32 years , who stated that

Petitioner is a thoughtful and giving person who cares for her sister.

PetitionerÔs disabled sister, Margie , provid ed a third letter , which

co rroborated that Petitioner is her primary caregiver. Finally, the fourth

letter was from Stacy Malinowski, the program d irector of Mustard Seed

Ministries, who highlighted that Petitioner has served as a volunteer with

the agency for four years and Petitioner completes her assigned tasks.

19 . Petitioner has participate d in c ommunity service with Mustard Seed

Ministries , a United Way agency, by serving on t he annual Thanksgiving

Feast committee. Sh e also actively participates in a church with community

3 AHCA did not offer evidence regarding the definition of a Ðpublic order crimeÑ at hearing. However,

AHCA acknowledged tha t falsifying records was considered a disqualifying offense based on the AHCAÓs

interpretation of which crimes constituted a disqualifying offense .

outreach by planning the annual holiday party for children with paren ts in

prison.

20 . In addition to writing a letter, Margie testified that Petitioner

provides good care to her and she is dependent upon her each day. Margie

explained that PetitionerÔs inability to be paid for her services as a Medicaid

provider places a significant financial burden on them. Margie also reviews

PetitionerÔs worksheets and verifies that Petitioner provided the care as

stated on the form before the forms are submitted to her case manager.

21 . PetitionerÔs friend, Ms. Russo , relayed that Pe titioner is a Ñgood ,

upstanding person and involved in church. Ò She is a ware of PetitionerÔs

criminal offense and she firmly believes Petitioner would not repeat the same

activity if granted an exemption .

22 . At hearing, P etitioner admitted that she comm itted the disqualifying

offense. She explained that she was a dependency case manager who was

assigned a caseload of more than 40 cases. She was overwhelmed and

stressed by her case load and serving as the caregiver for her sister. By way of

background, Mar gie suffers from the residuals effects of a stroke and requires

significant in - home care and three hours of hospice care each day. At the

hearing, the undersigned observed Margie and it was clear that she requir ed

extensive assistance walking and she had d ifficulty speaking due to the

stroke. According to P etitioner , her sister depends on her assistance with

bathing, toileting, cooking , and cleaning. There is no dispute that Petitioner

has the skills to provide , and is dedicated to providing , care for her s ister.

23 . P etitioner has provided similar direct care services to other

individuals besides her sister . S he worked for her pas torÔs wife as a caregiver

providing care, providing transportation, preparing meals, and

administration of medication .

24 . Pe titioner credibly testified that she has received no complain ts about

inappropriate actions regarding documentation.

25 . After review of her exemption application packet, AHCA denied

PetitionerÔs request for exemption. Vanessa Risch described the process for

cons idering exemption applications. The background - screening unit organizes

the documents submitted by the applicant f or review by the Secretary of

AHCA.

26 . T he background - screening unit considered all materials in

Ms. Clacher Ôs exemption file. In addition to Ms. ClacherÔs application for

exemption submitted in August 2019, Ms. ClacherÔs file included several

letters involving disqualification from employment based on the same offense

as further described above. Since the background - screening unit d oes not

make the final deci sion on the request for exemption, the file wa s then

provided to the S ecretary for final determination. The S ecretary then

reviewed the file and denied Ms. ClacherÔs request for exemption . Although

Ms. Risch did not provide testi mony regarding the basis for Ms. ClacherÔs

denial, she testified generally that falsifyin g records could place a vulnerable

population in danger.

27 . The record developed at the final hearing doe s not include any

information regarding the SecretaryÔs thou ght proce ss when she determined

that Ms. ClacherÔs exemption application should be denied. However, when

she reviewed the exemption application packet, she did n ot have the benefit

of evidence developed at the hearing. T he exemption packet did not include

Ms. ClacherÔs community service work or church activities, and thus, the

Secretary did not have the benefit of that information. She did not have the

bene fit of the testimony of PetitionerÔs witness, Ms. Russo , that she is aware

of Ms. ClacherÔs cri minal o ffense and firmly believes she would not commit

the crime again. Als o presented at hearing was Ms. ClacherÔs testimony that

she cared for her sister Margie as a caregiver between April 2018 and

August 2019, and t here have been no reports of in appropriate a ctions.

Finally, the Secretary did not have the benefit of Ms. Clacher Ôs credible

testimony where she expressed that she understands the mistakes she has

made a nd works Ñ dail y towards not making and doing things in an

inappropriate manner , incorrect manner , or an illegal manner . Ò

Finding of Fact

28 . Petitioner demonstrated by clear and convincing evidence that she is

rehabilitated.

C ONCLUSIONS OF L AW

29 . The Division has jurisdiction over the subject matter of the proceeding

and the parties the reto pursuant to sections 120.569, 120.57(1), and

435.07(1)(c), Florida Statutes.

30 . As the applicant for an exemption pursuant to section 435.07,

Petitioner bears the burden of proof to establish rehabilitation. Section

435.07 provides , in pertinent pa rt:

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

grant to any employee otherwise disqualified 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 imposed by the court for the disqualifying

felony;

2. Misdemeanors prohibited under any of the

statutes cited in this chapter or under similar

statutes of other jurisdictio ns for which the

applicant for the exemption has completed or been

lawfully released from confinement, supervision, or

nonmonetary condition imposed by the court;

* * *

(b) A person applying for an exemption who was

ordered to pay any amount for any fee, fine, fund,

lien, civil judgment, application, costs of

prosecution, trust, or restitution as part of the

judgment and sentence for any disqualifying felony

or misdemeanor must pay the court - ordered

amount in full before he or she is eligible for the

exem ption.

For the purposes of this subsection, the term

ÑfeloniesÒ means both felonies prohibited under any

of the statutes cited in this chapter or under

similar statutes of other jurisdictions.

* * *

(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 from

employment. Employees seeking an exemption

have the burden of settin g 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 continued employment is allowed.

(b) The agency may consider as part of its

deliberations of the employeeÔs rehabilitation the

fact that the employee has, subsequent to the

conviction for the disqualifying offense for which

the exemption is being sought, been arrested for or

convicted of ano ther crime, even if that crime is not

a disqualifying offense.

(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

judg e is whether the agencyÔs intended action is an

abuse of discretion.

31 . The statutory provision that addresses exemptions from

disqualification, section 435.04 (b) , underwent modifications that

took effect on July 1, 201 8 .

32 . Section 435.04 (b) lists those crimes for which disqualification from

e mployment in a position of trust that is applicable to participation in the

Medicaid program , which now includes section 839.13, falsifying records.

§ 435.04(b)(6) , Fla. Stat.

33 . Petitioner was disqualifi ed from employment based on one

disqualifying offense, a felony. There has been no dispute that Petitioner

meets the eligibility requirement to seek exemptio n as prescribed in section

435.07(1)(b). S he completed her probation in August 20, 2014. She also

com pleted payment of the court fees and costs on January 20, 2017 .

34 . To be granted an e xemption, Petitioner must demonstrate by clear and

convincing evidence that she is rehabilitated from her disqualifying offense .

J.D. v. DepÔt of Child. & Fams. , 114 S o. 3d 1127, 1131 (Fla. 1st DCA

2013)(ÑThe ultimate issue of fact to be determined in a proceeding under

section 435.07 is whether the applicant has demonstrated rehabilitation by

clear and convincing evidence.Ò).

3 5 . Prohibiting persons convicted of disqu alifying offenses from

employment in positions of trust is intended to protect the public welfare, and

section 435.07 is strictly construed against the person seeking an exemption.

Heburn v. DepÔt of Child. & Fams. , 772 So. 2d 561, 563 (Fla. 1st DCA 2000).

3 6 . The clear and convincing standard of proof has been described by the

Florida Supreme Court as follows:

Clear and convincing evidence requires that

evidence must be found to be credible; the facts to

which the witnesses testify must be distinctly

r emembered; 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 belief or conviction,

without hesita ncy, 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)); see also In re Henson , 913 So. 2d

579, 590 (Fla. 2005).

3 7 . Should Pe titioner demonstrate rehabilitation, then it must be

determined whether the agency abused its discretion when it initially

determined it would deny the exemption. Id. The abuse of discretion standard

of review set forth in section 435.07(3)(c) has been des cribed as follows:

If reasonable men could differ as to the propriety of

the action taken by the trial court, then the action

is not unreasonable and there can be no finding of

an abuse of discretion. The discretionary ruling of

the trial judge should be d isturbed only when his

decision fails to satisfy this test of reasonableness.

Canakaris v. Canakaris , 382 So. 2d 1197, 1203 (Fla. 1980); Kareff v. Kareff ,

943 So. 2d 890, 893 (Fla. 4th DCA 2006) (holding that pursuant to the abuse

of discretion standard, the test is Ñwhether any reasonable personÒ could take

the position under review).

3 8 . In determining whether the AgencyÔs intended action is an abuse of

discretion, the First District Court of Appeal has held that:

Although the ultimate legal iss ue to be determined

by the ALJ in a proceeding under section

435.07(3)(c) is whether the agency head's intended

action was an Ñabuse of discretion,Ò the ALJ is to

evaluate that question based on the facts

determined from the evidence presented at a de

novo chapter 120 hearing.

J.D. v. Dep't of Child. & Fams. , 114 So. 3d at 1132. As a result , the agencyÔs

initial decision is viewed in light of evidence that the agency did not have the

benefit of considering.

39 . Cases that discuss the type of evidence pre sented to demonstrate

rehabilitation in support of an exemption have mentioned evidence such as

evidence of church involvement and community outreach, education, and

community volunteer activities. See, e.g., E.J. v. DepÔt of Child. & Fams. ,

219 So. 3d 9 46 (Fla. 3d DCA 2017)(completion of AA degree); J.D. v. DepÔt of

Child. & Fams. , 114 So. 3d at 1129 (Fla. 1st DCA 2013)(extensive church

involvement, stable employment, education, drug treatment , and support -

related activities); and K.J.S. v. DepÔt of Chil d. & Fams. , 974 So. 2d 1106

(Fla. 1st DCA 2007)(extensive involvement in prison ministry, commitment

to family, educational and vocational accomplishments, efforts to teach young

peop le not to repeat his mistakes . ) .

40 . T here is no question that Petitioner Ôs disqualifying offense raises some

concerns regarding her ability to work in a position of trust. I n con trast , as

set forth in the Findings of Fact above, there is no question that Petitioner

has taken steps to address her past and improve her life and t he lives of

others in the community .

41 . The evidence presented at hearing demonstrates that Ms. C lacher has

proven by clear and convincing evidence that she has been rehabilitated and

would not pose a danger to Medicaid recipients. 4

42 . The record at hear ing includes not only PetitionerÔs live testimony,

which was candid and persuasive, but a lso the live testimony of her sister

and friend who are closely associated with PetitionerÔs work habits and

abilities as a caregiver. PetitionerÔs genuine testimony p ersuasively

demonstrated that she accepts full responsibility for her actions and has been

rehabilitated. At hearing, the evidence demonstrated that Ms. Clacher not

only obtained her masterÔs degree, but also engaged in ongoing community

service work and c hurch activities. Ms. Russo Ôs testimony that she was aware

of Ms. ClacherÔs criminal offense and wholeheartedly believes she would not

4 While Petitioner asserts that she only wants to provide Medicaid services to her sister, if granted an

exe mption from disqualification , Petitioner could provide services to any Medicaid recipient.

commit the crime again , is credited. Moreover, Ms. ClacherÔs testimony that

she cared for her sister Margie as a caregive r between April 2018 and August

2019, yet t here ha ve been no reports of inappropriate actions , is given great

weight.

43 . With the benefit of this information, much of which was not available

to the Secretary when she made her original decision, it would be an abuse of

discret ion to deny Petitioner the exemption that she seeks.

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that the Agency for Health Care Administration enter a final

order grant i ng Maria Clacher an exemption from disqualification that would

allow her t o enroll as a Medicaid provider.

D ONE A ND E NTERED this 23rd day of March , 2020 , in Tallahassee, Leon

County, Florida.

S

Y OLONDA Y. G REEN

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

Divisi on of Administrative Hearings

this 23rd day of March , 2020.

C OPIES F URNISHED :

Richard J. Santurri, Esquire

Agency for Health Care Administration

Building 3, Room 3428A

2727 Mahan Drive

Tallahassee, Florida 32308

(eServed)

Susan Sapoznikoff, Esquir e

Agency for Health Care Administration

Mail Stop 3

2727 Mahan Drive

Tallahassee, Florida 32308

(eServed)

Theodore Charles Shafer, Esquire

T. Charles Shafer, Attorney at Law PLLC

309 Orange Avenue

Fort Pierce, Florida 34950

(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)

Shena L. Grantham, Esquire

Agency for Health Care Administration

Building 3, Room 3407B

2727 Mahan Drive

Tallahassee, F lorida 32308

(eServed)

Thomas M. Hoeler, Esquire

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(eServed)

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

All parties have the right to submit written exceptions with in 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.