20-001337 Jennifer Garcia vs. Agency For Health Care Administration Status: Closed Recommended Order on Friday, August 14, 2020.

Summary: Petitioner established rehabilitation by clear and convincing evidence. The Agency for Health Care Administration's intended decision to deny the exemption was an abuse of discretion.

S TATEMENT OF T HE I SSUE S

The issue s in this case are whether Petitioner has pr ovided clear and

convincing evidence of rehabilitation from her disqualifying offense ; and , if

so, whether Respondent abused its discretion in denying Petitioner’s request

for an exemption from disqualification from employment as a Medicaid

provider.

P REL IMINARY S TATEMENT

By letter dated December 20, 2019, the Agency for Health Care

Administration ("AHCA") notified Petitioner Jennifer Garcia (“Petitioner” or

“Garcia”) that her "request from disqualification from employment and/or

from enrollment as a Medic aid provider under Section 435.07, Florida

Statutes, is D ENIED ." Petitioner timely protested the denial and requested an

administrative hearing.

On March 11, 2020, AHCA transmitted Petitioner's letter to the Division

of Administrative Hearings ("DOAH"), and the undersigned was assigned to

hear the case. After a continuance for good cause, the final hearing was heard

on June 15, 2020, as rescheduled.

On June 9, 2020, the parties filed a Joint Pre - h earing Stipulation in which

they identified stipulated fa cts for which no further proof would be necessary,

and the relevant facts stipulated therein are accepted and made part of the Findings of Fact below.

At the hearing, Petitioner presented the testimony of six witnesses:

Dr. Laviniu Anghel; Jeremy Kroll; Erik Stuehrenberg; Dr. Mitchell E. Spero;

Kelly Goff; and herself. Petitioner’s Exhibits 1 through 12 were received into

evidence without objection. Respondent presented the testimony of one

witness: Vanessa Risch. Respondent's Exhibits 1 through 11 were r eceived

into evidence without objection.

On June 23, 2020, the parties filed a Supplement to Joint Pre - hearing

Stipulation , stipulating to Samantha Heyn ’s (“Heyn”), AHCA’s u nit m anager

of the Background Screening Unit, testimony by stipulated facts instea d of

live testimony. Heyn’s testimony is accepted by the undersigned , and the

relevant facts are made part of the Findings of Fact below.

The proceeding of the hearing was recorded by a court reporter and

transcribed. A two - volume Transcript of the hearin g was filed at DOAH on

July 2, 2020. The parties each filed a timely proposed recommended order, which has been considered by the undersigned in the preparation of the

Recommended Order.

Unless otherwise indicated, all statutory references are to Florida

Statutes (2019).

F INDINGS OF F ACT

1. AHCA is the state agency charged with protecting vulnerable persons

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

it maintains discretion to approve or deny requests for exemption.

2. Peti tioner is a licensed advanced practice registered nurse (“APRN”)

and a certified nurse midwife who provided obstetric and gynecological care

to Medicaid patients in Broward County, Florida, until she was disqualified

from the Medicaid program.

3. Petitione r is seeking to continue to provide obstetric and gynecological

care to Medicaid recipients. She has a passion for working with obstetric

Medicaid patients and wants to provide them the same opportunity for care as non - Medicaid patients.

AHCA’ S A CTION

4. P etitioner applied for re - enrollment in the Medicaid program. After

completing Petitioner's background screening, Petitioner's May 22, 2018,

disqualifying felony criminal arrest and charge of larceny was identified.

5. On February 4, 2019, by letter , AHCA informed Petitioner that the

May 22, 2018, larceny offense disqualified her from working for a Medicaid

healthcare provider, but that she could apply for an exemption.

6. Petitioner self - reported her May 22, 2018, arrest to the Department of

Health. On Ap ril 4, 2019, by letter , the Department of Health closed

Petitioner’s case after an investigation without taking any disciplinary action against Petitioner’s license for the arrest.

7. On July 31, 2019, Petitioner applied to AHCA for a Medicaid

exemption. O n October 15, 2019, AHCA closed Petitioner’s July application

after Respondent determined the application was incomplete.

8. That same month, Petitioner resubmitted the request for exemption

from disqualification, which included the exemption application a nd

supporting documentation ("exemption package").

E XEMPTION P ACKAGE

9. In Petitioner's exemption package, she listed her work history, which

included the following employment: OB Hospitalist Group, from October 2017 to May 2019; First Class OBGYN, from Ju ne 2018 to present; Unified

Medical Group, from October 2015 to October 2017; and Global OBGYN, from January 2013 to August 2018.

10. Petitioner completed the education and training section of her

exemption package by providing the answers that she had a master’s degree, completed training to become an APRN and a certified nurse midwife at

Frontier University from 2009 to 2011, and provided her license number

APRN 09190212.

11. Petitioner also included a signed letter detailing her December 7,

2004, charge of permitting an unauthorized person to drive from Columbia

County, Florida. She explained in the letter that she was charged after her

brother drove her car while she was at work and had a fatal head on collision

that claimed both his life and the other driver ’s .

12. In Petitioner’s exemption package, she included court records and

dispositions for the following three criminal offenses: a 2004 misdemeanor ,

permit unauthorized person to drive , offense for which she successfully

completed the six months’ pr obation after she paid her fines; a 2018 third -

degree grand theft charge that was reduced to a misdemeanor petit theft

when Petitioner pled to the offense; and a 2018 municipal ordinance petit

t heft charge that was dismissed.

13. Petitioner also submitted letters of reference to support her

application. The first letter dated August 23, 2019, was from Dr. Mitchell

Spero (“Dr. Spero”), Petitioner’s treating psychologist. Dr. Spero stated in

his letter that Petitioner had suffered traumatic events, she attend ed

27 individual psychotherapy sessions with him since June 18, 2019, and

Garcia would not “ever again steal or demonstrate any negative behaviors

worthy of any legal involvement.”

14. The other letters supporting Petitioner’s application summarized how

w ell - respected and knowledgeable Petitioner is in the profession as an APRN.

Syed Rodriguez’ s letter outlined how she has known Petitioner for over ten

years , as Petitioner served as her preceptor. In her letter, she acknowledged

Petitioner’s mistakes , but stated that the “medical profession needs more

caring individuals like her” and that, “if given the opportunity, she can prove

only excellence.”

15. Another letter included in the exemption package was from Deline

Somoza who grew up with Petitioner and ref erred to her as an amazing

friend, mother, doctor, daughter , and , best of all , caretaker of anyone in need.

16. Christina Kopingon, who worked with Petitioner for three years,

stated in her letter in the exemption package that Petitioner “was an asset to

o ur team and exhibited all the qualities necessary to safely and competently

perform her role as a hospitalist certified nurse midwife.”

17. The fifth letter Petitioner included in her exemption package was from

Angela Melendez , who detailed how she worked with Petitioner for four

years. She described Petitioner as knowledgeable, prov ides excellent patient

care, skillful , and someone who she would trust “with my children as well as

my own life.”

T ELEPHONIC E XEMPTION H EARING

18. On December 18, 2019, as part of the exemption application process,

Petitioner participated in an approximate ly 33 - minute telephonic exemption

hearing (“interview”) with Kelley Goff (“Goff”), a health services and facilities

consultant at AHCA in the Background Screening Unit . During t he

interview, Garcia was honest about all her encounters with the law.

Petitioner even offered to discuss her case that was expunged 1 but Goff

stopped Garcia and told her she did n o t have to because AHCA did not

consider expunged cases , only sealed cases.

19. In the interview, Petitioner explained the three criminal offenses Goff

questioned her about. Garcia explained that the December 7, 2004, incident

was when her brother took her vehicle while she was at work and had an

accident that killed both him and the person in the other car he hit.

Petitioner told Goff that because the vehicle was registered in her name, she

was charged with permitting an unauthorized person to drive. She disposed

of the case after going to court , and , under the advisement of a pu blic

defender , she accepted a plea to probation.

20. Petitioner also admitted to Goff during the interview that she

committed the larceny case on May 22, 2018 . Petitioner explained to Goff

1 At hearing and i n its p roposed r ecommended o rder, AHCA asserts that Petitioner opened

the door to explore Petitioner’s expungement case. The undersigned is not persuaded by

AHCA’s position. During Petitioner’s interview, Goff specifically stopped Petitioner from discussin g expungement and informed Petitioner that AHCA would not be consider ing any

expungement in her case. Hence, expungement is a nonissue in this matter to which the undersign ed cannot deliberate.

that the case came about when she confessed that she had previousl y stolen

scallops, steak, two laptops , and a raincoat when apprehended at Costco for

stealing clothing on May 19, 2018, and that is how Costco was able to charge

her with both cases. Petitioner told Goff that the disposition of the cases

included the munic ipal ordinance case being dismissed and she pled to the

larceny case that was amended to petit theft with one year ’s probation and

restitution of $1 , 198.00, which she paid back, and her probation was

terminated early.

21. During the interview, Petitioner also showed remorse and explained to

Goff three separate times that she had made poor decisions to steal and that,

obviously , there was no excuse for her actions. She told Goff she was very

disgusted with her decisions. Petitioner described how she had a p atient that

died in her arms, which killed her soul and really hurt her, and she started

making poor decisions and , unfortunately , stealing was one of them.

Petitioner told Goff that she has been in counseling for it all and has learned

how to deal with he r stress now. Petitioner conveyed to Goff that seeing

Dr. Spero has been an amazing help for her to understand how to deal with

the trauma that has gone on in her life. Petitioner specified that in addition

to her brother dying from the accident, and the p atient dying in her arms , she

had seven losses in ten years , including her mother who had died two and

one - half years ago from suicide. She explained in the interview that she had

never stopped going to counseling with Dr. Spero and was still currently in

counseling because it “helps me.”

22. Petitioner also told Goff how she had started a women’s support group,

which focused on postpartum depression. She explained that the group meets on third Thursdays to discuss issues and listen, so the women will not f eel

alone.

23. After the telephonic interview and discussion, AHCA denied

Petitioner's request for an exemption by letter dated December 20, 2019. The

letter provided the following grounds for the denial:

[ Agency ] has conside red the following factors

inclu ding 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;

a history of the employee since the in cident; and

any other evidence or circumstances indicating

that the employee will not present a danger if continued employment is allowed; and found that

you have not provided clear and convincing

evidence of your rehabilitation as required by Florida Law.

24. Although Heyn, AHCA’s unit manager for the Background Screening

Unit, played no role in reviewing Petitioner’s application, the interview,

recommending or making the decision to deny Petitioner’s exemption, Heyn

signed the form denial letter and sent it to Garcia at the direction of AHCA’s

s ecretary. AHCA’s s ecretary also did not make the decision to deny

Petitioner’s exemption.

25. Subsequently, on February 11, 2020, Petitioner requested an

administrative hearing contesting her denial.

H EARING

26. At hearing, Dr. Laviniu Anghel (“ Dr. Anghel”) testified that Petitioner

has been employed with him as a mid - wife since 2016. He credibly explained

that Petitioner is one of his best employees and that he had no concerns regarding her work performance. Dr. An ghel pointed out that Petitioner is

even one of the most highly rated providers in his practice on social media.

Dr. Anghel testified that he retained Petitioner at his office as an employee

even though she is unable to treat Medicaid patients because of h er

disqualification.

27. Dr. Anghel stated that Petitioner told him about her 2018 arrest, and

he was surprised because he did n o t expect her to steal out of a store. He also

testified Petitioner has access to all types of things with his two practices, bu t

she has never stolen from him and he trusts her like a sister. Dr. Anghel

further testified that Petitioner told him she regretted stealing.

28. At hearing, Jeremy Kroll (“Kroll”), Petitioner’s criminal defense

attorney , also testified. He explained tha t he initially represented her on the

notice t o appear case , but there was an ongoing investigation regarding

Petitioner’s incident on May 7, 2018, and he ended up representing her on

both cases. He explained that the notice to appear , C ase 2018 - 1031M030A ,

was a municipal case brought by the Town of Davie , charging Petitioner with

a misdemeanor of petit theft for stealing four pairs of shorts, two pairs of

shoes, and some t - shirts from Costco, to which all the items were recovered.

Kroll told how the Town o f Davie ’s prosecutor dropped the municipal case on

July 16, 2018, after Petitioner successfully completed the terms of her pre -

trial diversion program that required Petitioner to pay a $350.00 fine and

continue ongoing treatment with Dr. Spero.

29. Kroll a lso testified about Petitioner’s disqualifying offense case he

handled. He affirmed Petitioner’s interview explanation with Goff , and Kroll

testified that when Petitioner received the notice t o appear for the municipal

case, Costco went back through store footage from May 7, 2018, and

discovered Petitioner stole two laptops. Petitioner was arrested and turned herself in on May 22, 2018, for the third - degree felony grand theft charge.

Kroll confirmed Petitioner’s interview that Petitioner pled to a lesser of fense

of misdemeanor theft, was placed on 12 months of probation, paid the restitution for the two laptops, and continued her psychotherapy with Dr.

Spero. Kroll testified that Petitioner immersed herself in therapy with Dr.

Spero and received support from Erik Stuehrenberg (“Stuehrenberg”) and his

wife . She was also remorseful from day one and took full responsibility for

her actions. He described Garcia as having a “true desire to avoid any sort of

future conduct even remotely close to [the thefts].”

30. Kroll credibly acknowledged that significant trauma in Petitioner’s

background played a role in her actions as she had explained in her

interview. Kroll detailed some of the traumatic incidents , such as the

accident where she broke 21 bones in her back , an d had to learn to walk

again , and her pregnancy loss in 2013 as a result of domestic violence. He

further explained that he provided a letter to the prosecutor from Dr. Spero

with Petitioner’s forensic evaluation. Kroll stated he believed that “the State

A ttorney’s Office, to their credit, recognized as sort of a trigger, she los t as

part of her job as a midwife, she los t one of the mothers that delivered and

then los t her own mother almost one after another” and that the theft was a

cry for help.

31. Kroll also testified , as Petitioner had explained to Goff in her

interview , that “there was a period of time where Garcia was so committed to

her patients and to her livelihood that she wasn’t as committed to keeping

herself healthy as she should have, and I th ink she regained that balance as

part of this whole process.”

32. At hearing, Stuehrenberg , a Davie police officer , testified that he

helped Petitioner through the criminal process after she told him about the 2018 theft. He testified that he was shocked b y her arrest. However,

Petitioner was remorseful, admitted she made a mistake, and asked for help.

33. Stuehrenberg made clear that Petitioner noticed things were going on

in her life that triggered her, and she took the necessary steps to address her

pro blems. Stuehrenberg explained that he sent her to Dr. Spero to talk about

the things going on in her life because he knew the doctor would help her sort

things out since he was familiar with Dr. Spero’s capabilities, and since he

had visited him on occasio n for help. He also explained how he and his wife

served as a support system to help Petitioner.

34. Goff also testified at the hearing that she has no formal training

processing applications but has processed numerous applications over the

years that her supervisors had reviewed and approved. Goff explained that

she was assigned Petitioner’s application and she follows the statutes and

rules when processing an application. Goff also explained that an application

starts the review process for an exemption.

35. Goff testified about Petitioner’s interview and reviewed the limited

handwritten notes she had taken from the 33 - minute interview. Goff testified

that the only thing in Petitioner’s background that might have concerned her

is the 2018 arrest , but “it ’s not up to me to make that decision.” She testified

that Mary Mayhew, AHCA’s s ecretary, decides the exemptions.

36. Goff also addressed her Exemption Decision Summary (“summary”)

that she created after the interview and it became part of Petitioner’s

app lication file that was forwarded for review when determining Petitioner’s

exemption application. Goff testified that when addressing Petitioner’s

criminal offenses, she summarized the three offenses.

37. The summary contained errors, lacked details, and p age 1 contained

identical answers to the Exemption Decision Summary dated October 15, 2019, when Petitioner’s first case was closed.

2

38. Goff admitted at hearing that she failed to specify on the summary

that the 2004 arrest was neither a disqualifying o ffense nor that the May 19,

2018, municipal charge was dismissed. Goff also testified that she failed to note that Petitioner was currently employed, had healthcare training, or was

licensed on page 1 of the summary , even though Petitioner had provided the

correct information on her application regarding her employment with First

Class OBGYN, training, and licensure status as a certified nurse midwife.

39. At hearing , Dr. Spero testified about Petitioner’s care, diagnosis, and

treatment. He credibly discus sed Petitioner’s p sychological e valuation.

3

Dr. Spero explained that he began treating Petitioner on June 18, 2018. He

acknowledged she had informed him about two thefts within a 12 - day period

in May 2018 . Even though Dr. Spero could not remember specifica lly what

2 Resp . ’s Ex . 2.

3 Pet . ’s Ex . 11.

was stolen, he testified that the other theft was “also from Costco involving

two laptop computers.”

40. Dr. Spero explained , as part of his psychology practice , he evaluates

individuals to determine whether they have been rehabilitated. Dr. Sper o

testified that he performed a lot of psychological testing to gain insight and

direction for Petitioner’s treatment. He determined she was depressed,

anxious , had suffered post - traumatic stress disorder several times , and had

emotional issues. Dr. Spero summarized some of Petitioner’s events that led

to her trauma , including an abusive relationship and numerous losses

including a brother, mother, grandmother, stepsister, best friend, and

boyfriend. He also concluded that Petitioner’s level of stress exace rbated when she los t a patient because of an embolism and Petitioner’s actions of

stealing during the 12 - day period were isolated incidents of behavior , out of

her character , based on triggered events. Dr. Spero testified that he tested

Petitioner multiple times and she does not have a propensity to steal, but the

level of stress of loss , including her mother , who committed suicide ;

grandmother ; her stepsister , who o verdos ed ; and the loss of a patient

traumatized her and caused the behavior .

41. Dr. Spero a lso credibly confirmed that Petitioner was still in treatment

with him at the time of the hearing and he believes that she is “without any

hesitation 100 percent rehabilitated” because he has taught her to deal with

her trauma and stress.

42. Petitioner al so testified at hearing and explained that she worked at

First Class OBGYN full time since 2018 , and was a licensed healthcare

worker , as she had put on her application. She explained that she had

worked at Bethesda Memorial East , but stopped working there after she was

disqualified from working with Medicaid patients.

43. At hearing , Petitioner admitted getting caught leaving the Costco after

she stole shorts, shirts, and shoes in May 2018, as she had told Goff during

the interview. Petitioner credibly exp lained that while being questioned by

the Costco employee that apprehended her, she confessed to also previously

stealing laptops, scallops, steak , and a rain jacket, which she was later

arrested for and charged with a felony. She testified that she was ne ver charged for taking all the items like the scallops and steak and verified that

she turned herself in on the felony charge and spent a night in jail, which she

felt was eye awakening and not a “life that I could ever, ever want to live.”

44. Petitioner credibly and persuasively explained that 2018 was a

traumatic year for her after she los t her first patient. She testified about how

she felt guilt about the patient’s death and grieved after her death. Petitioner

conceded that she was not in a good place mentally after the death.

45. Petitioner further testified that she contacted Stuehrenberg and told

him what she had done, and he told her to go to Dr. Spero, a licensed

professional , for help. Petitioner described how she started seeing Dr. Spero

in June 2018 and was still having individual counseling with him as of the

date of the hearing. Petitioner pays for each visit. She elaborated how Dr. Spero has helped her tremendously and she has been able to forgive

herself, gotten better, and found methods to deal w it h stress.

46. Petitioner also testified that she started a women’s postpartum

depression group as she had discussed in her interview with Goff. She explained that women need someone to talk to and by her being in a domestic

altercation when she was pregnant and losing her son at 15 weeks after being

hurt badly, she understood the group’s needs and thought she could help them. She founded the women’s group to provide an outlet for release for women who might need it.

47. Petitioner also credibly test ified that she has volunteered for about

five years with Power Buddies, an organization that helps disabled

individuals compete in marathons by pushing them in strollers. She

explained that she could relate to the kids because she was hit by a drunk

driver and fractured 21 bones, had a head injury, and had to learn to walk

again , so it is rewarding to her when she pushes the competitors over the

finish line in their strollers.

F INDINGS OF U LTIMATE F ACT

48. Upon careful consideration of the entire record, it is determined that

Petitioner has demonstrated by clear and convincing evidence that she is

rehabilitated from her misdemeanor disqualifying offense of petit theft and

that she will not present a danger to the Medicaid patients with whom she would have co ntact with as a certified nurse midwife.

49. Petitioner has shown that she is a responsible individual by

successfully holding jobs in the health care field as a certified midwife

handling prenatal visits, gynecological visits, labor , and postpartum care a nd

treatment for more than seven years without incident , and as a nurse prior to

that. All her employment has been in positions where she cared for patients ,

and no evidence was presented that Petitioner was a danger while doing so.

50. Petitioner’s curren t supervisor, Dr. Anghel , corroborated Petitioner’s

exemplary work record. Also, the compelling letters

4 show , by all accounts ,

Petitioner is well - respected, knowledgeable, caring, the best caretaker, an

asset, excellent, and skilled in her field.

51. Peti tioner was honest and forthright at hearing. Petitioner

demonstrated by credible and compelling evidence that she had a traumatic ten years comprised of, among other events , the following: an accident where

she had to learn to walk again; and seven close d eaths , including her brother

who died in a fatal car accident where Petitioner was charged with the offense, her mother who committed suicide, grandmother, stepsister who

overdosed, and the death of her first patient , who died while in her care .

Petitioner was not able to hold it together any longer after her first patient

died in her arms in 2018 , and Petitioner’s trauma caused her to function in

an unhealthy mental state.

4 Resp .’ s Ex . 7.

52. Petitioner’s traumatic state triggered out - of - character behaviors ,

including st ealing out of Costco twice during a 12 - day period in May 2018.

Those who knew Petitioner well , such as Stuehrenberg and Dr. Anghel , were

shocked and surprised by Petitioner’s actions. Petitioner was immediately

remorseful by her behavior and sought help fr om Dr. Spero in June 2018.

53. Petitioner’s municipal ordinance case was dismissed, and her sole

disqualifying offense of larceny was reduced to a misdemeanor petit theft

after the prosecutor was provided Dr. Spero’s letter documenting Petitioner’s

trauma. Petitioner successfully completed her 12 - month probation early by

paying restitution and complying with the terms.

54. After evaluating Petitioner, Dr. Spero taught Petitioner how to deal

with trauma and stress at the one - on - one counseling sessions. Even after

Petitioner’s criminal case was over and prior to applying for an exemption,

Petitioner continued to pay and voluntarily attend counseling with Dr. Spero

because she recognized the benefits of the treatment. Petitioner has worked

hard to address her i ssues and get her mental health together. Petitioner has

complied with her psychological treatment, adhered to the recommendations

of Dr. Spero, and continued to obtain psychotherapy through the date of the

hearing, which comprised a period of over two yea rs. Petitioner has

demonstrated a genuine commitment to improving her life and that she has

been rehabilitated.

55. Additionally, Petitioner’s application package that was forwarded to

the decision - maker to make a determination on her exemption request was

not completely accurate. The summary contained errors and lacked complete

details such as: Petitioner ’ s lengthy successful professional career in the

health care field was left off page 1 of the summary , which states “No

Employment History”; the summary fa iled to identify Petitioner’s sole

disqualifying offense, a misdemeanor petit theft; lists the municipal charge

on page 1 without indicating a dismissal disposition; page 2 of the summary

fails to distinguish disqualifying and non - disqualifying offenses; a nd neither

the permitting unauthorized person to drive offense nor the municipal

ordinance offense are identified as non - disqualifying offenses.

56. Petitioner is also active in her community with the wom e n ’s support

group she founded and Power Buddies.

5 7. For these reasons, it is determined that no reasonable individual, upon

fully considering the record in this proceeding , could find that Petitioner is

not rehabilitated.

C ONCLUSIONS OF L AW

58 . DOAH has jurisdiction over the subject matter and the part ies to this

action in accordance with sections 120.569 and 120.57, Florida Statutes.

59. Because Petitioner pled to a misdemeanor petit theft, which was

reduced from a felony larceny, she is disqualified from employment as a

Medicaid provider unless grante d an exemption by AHCA pursuant to section

435.07.

60. Section 435.07 provides, in pertinent part:

Exemptions from disqualification. — Unless otherwise

provided by law, the provisions of this section apply to

exemptions from disqualification for disqualifyi ng

offenses 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 disqualified from employment an exemption from disqualification for:

* * *

2. Misdemeanors prohibited under any of the

statutes cited in this chapter or under similar

statutes of other jurisdictions for which the

applicant for the exemption has completed or been lawfully released from confinement, supervision, or nonmonetary condition imposed by the court;

3. Offenses that were felonies when committed but

that are now misdemeanors and for which the

applicant for the exemption has completed or be en

lawfully released from confinement, supervision, or nonmonetary condition imposed by the court;

* * *

(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 eviden ce that

the employee should not be disqualified from

employment. Employees seeking an exemption

have the burden of setting forth clear and convincing evidence of rehabilitation, including, but not limited to, the circumstances surrounding the criminal inci dent 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 employee’s rehabilitation the

fact that the employee has, subsequent to the

conviction for the disqualifying offe nse for which

the exemption is being sought, been arrested for or convicted of another 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 procedu res set forth in chapter 120. The

standard of review by the administrative law judge is whether the agency’s intended action is an abuse of discretion.

61. Pursuant to this statute, Petitioner, as an applicant for an exemption,

must demonstrate her rehab ilitation by clear and convincing evidence . J.D. v.

Dep’t of Child. & Fams. , 114 So. 3d 1127, 1131 (Fla. 1st DCA 2013) (“ [T] he

ultimate issue of fact to be determined in a proceeding under section 435.07

is whether the applicant has demonstrated rehabilita tion by clear and

convincing evidence.”).

62. The clear and convincing standard of proof is a heightened standard

and has been described by the Florida Supreme Court as follows:

Clear and convincing evidence requires that

evidence must be found to be cred ible; 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 the facts in issue. The evidence

must be of such weight that it produces in the mi nd

of the trier - of - fact a firm belief or conviction,

without hesitancy, as to the truth of the allegations

sought to be established.

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

429 So. 2d 797, 800 (Fla. 4th DCA 1983)); see a lso In re Henson , 913 So. 2d

579, 590 (Fla. 2005).

63. When Petitioner demonstrate s rehabilitation, then it must be

determined whether the agency abused its discretion when it initially

determined it would deny the exemption. The abuse of discretion standa rd of

review set forth in section 435.07(3)(c) has been described 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 discret ion. The discretionary ruling of

the trial judge should be disturbed 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 “whether any reasonable person” could take

the position under review).

64. In determining whether the Agency’s intended action is an abuse of

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

[ A ] lthough the ultimate legal issue 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 “abuse of discretion,” the

ALJ is to evaluate that question based on the f acts

determined from the evidence presented at a de novo chapter 120 hearing.

J.D ., 114 So. 3d at 1132. As a result, the agency’s initial decision is viewed in

light of evidence that the agency did not have the benefit of considering.

65. For the reason s discussed above in the Findings of Fact, the evidence

shows Petitioner met her burden and proved her rehabilitation, clearly and

convincingly, with substantial evidence that was not available to AHCA when formulating its intended action to deny Petitione r’s exemption request.

66. Notably, the concerns expressed by AHCA in the December 20, 2019,

denial letter are put to rest by the credible, clear, and convincing live

testimony of Petitioner, Dr. Spero, Kroll, and Dr. Anghel that the

undersigned heard at hearing to which AHCA was not privy. Dr. Spero ’s

candid and persuasive testimony and Petitioner’s Exhibit 11 clarified the

circumstances of Petitioner’s trauma and level of stress that caused

Petitioner to act out and steal. Dr. Spero also provided details of Petitioner’s

treatment, described her remorse, explained her rehabilitated state, and

opined she would not steal again. Kroll candidly disclosed that Costco was

the victim of Petitioner’s offense , not a person , and that Petitioner made full

restitution early for the offense. Additionally, Dr. Anghel credibly confirmed

that Petitioner is competent in the health field and he has allowed her to successfully perform her certified nurse midwife duties on non - Medicaid

patients in his practice without incident or posing a threat since she has been

disqualified. Furthermore, the credible testimony at hearing also refuted the

inaccurate errors and lack of details in the summary. With the benefit of

Petitioner’s Exhibit 11 and all the hearing testimony , much of wh ich was not

available to the decision - maker when the original decision was made , it

would be an abuse of discretion u nder the specific circumstances of this case

to deny Petitioner the exemption from disqualification that she seeks .

R ECOMMENDATION

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

R ECOMMENDED that Respondent, Agency for Health Care Administration,

enter a final order granting Petitioner, Jennifer Garcia’s, request for an

exemption from disqualification as a Medicaid pro vider.

D ONE A ND E NTERED this 1 4 th day of August , 2020 , in Tallahassee, Leon

County, Florida.

J UNE C. M CKINNEY

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 1 4 th day of August , 2020 .

C OPIES F URNISHED :

Ginger Barry Boyd, Esquire

Nelson Mullins Broad and Cassel

215 South Monroe Stree t , Suite 400

Tallahassee, Florida 32301

(eServed)

Jamie B. Gelfman, Esquire

Nelson Mullins Broad and Cassel

1 Financial Plaza, Suite 2700

Fort Lauderdale, Florida 33394

Susan Sapoznikoff, Esquire

Agency for Health Care Administration

2727 Mahan Drive , Mail Stop 3

Tallahassee, Florida 32308

(eServed)

Shena L. Grantham, Esquire

Agency for Health Care Administration

Building 3, Room 3407B

2727 Mahan Drive

Tallahassee, Florida 32308

(eServed)

Thomas M. Hoeler, Esquire

Agency for Health Care Administrat ion

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 Car e Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

Richard J. Shoop, Agency Clerk

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 XCE PTIONS

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.