DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
JENNIFER GARCIA,
Appellant,
v.
STATE OF FLORIDA, AGENCY FOR HEALTH CARE
ADMINISTRATION,
Appellee.
No. 4D20-2257
[October 27, 2021]
Appeal from the State of Florida, Agency for Health Care
Administration; L.T. Case No. 20-1337.
Ginger Barry Boyd of Nelson Mullins Broad and Cassel, Tallahassee,
for appellant.
Tracy Cooper George, Chief Appellate Counsel, and Nicholas A. Merlin,
Senior Attorney, Agency for Health Care Administration, for appellee.
GROSS, J.
Jennifer Garcia appeals a final order issued by the State of Florida,
Agency for Healthcare Administration (“the Agency”) denying her request
for an exemption from disqualification from employment as a Medicaid
provider. We reverse because the Agency’s refusal to allow an exemption
under the facts of this case constituted an abuse of discretion.
Garcia is a licensed advanced practice registered nurse and certified
nurse midwife who provided obstetric and gynecological care to Medicaid
patients in Broward County, Florida until she was disqualified from the
Medicaid program. She was disqualified because she entered a plea of no
contest to a misdemeanor theft charge arising from an incident at Costco.
This charge disqualified her from working as a Medicaid provider, unless
she received an exemption from disqualification from the Secretary of the
Agency pursuant to section 435.07, Florida Statutes (2019).
Garcia applied for an exemption from disqualification, but the Agency
denied her request. Garcia requested an administrative hearing to
challenge the Agency’s decision.
At the administrative hearing, the issues to be determined by the
administrative law judge (“ALJ”) were: (1) whether Garcia had provided
clear and convincing evidence of rehabilitation from her disqualifying
offense and, if so, (2) whether the Agency abused its discretion in denying
Garcia’s request for an exemption from disqualification from employment.
Garcia presented a powerful case that she had been rehabilitated.
The ALJ entered a thoughtful, detailed order, which recommended that
the Agency enter a final order granting Garcia’s request for an exemption
from disqualification as a Medicaid provider. In the “Findings of Ultimate
Fact” section of the order, the ALJ found that Garcia
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 contact with as
a certified nurse midwife.
The ALJ determined that “no reasonable individual, upon fully
considering the record in this proceeding, could find that [Garcia] is not
rehabilitated.”
The ALJ therefore concluded that “[w]ith the benefit of [Garcia]’s Exhibit
11 and all the hearing testimony, much of which was not available to the
decision-maker when the original decision was made, it would be an abuse
of discretion under the specific circumstances of this case to deny [Garcia]
the exemption from disqualification that she seeks.”
The Agency’s Final Order adopted all of the ALJ’s findings of fact and
conclusions of law except for the conclusion that it would be an abuse of
discretion to deny the request for an exemption. In denying Garcia’s
request for an exemption, the Agency pointed to (1) “the nature of [Garcia]’s
criminal offense”; (2) “the fact that it has only been 1 year since [Garcia]
completed her probation”; and (3) “the fact that [Garcia] is continuing to
undergo treatment for issues related to the criminal offense.”
“An agency’s decision to grant or deny an exemption is subject to the
deferential abuse of discretion standard of review.” A.P. v. Dep’t of Child.
& Families,
230 So. 3d 3, 6 (Fla. 4th DCA 2017). “Discretion . . . is abused
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when the . . . action is arbitrary, fanciful, or unreasonable . . . .”
Id.
(quoting Canakaris v. Canakaris,
382 So. 2d 1197, 1203 (Fla. 1980)). “If
reasonable men could differ as to the propriety 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.” J.D. v. Dep’t of Child. & Families,
114
So. 3d 1127, 1130 (Fla. 1st DCA 2013) (quoting Canakaris,
382 So. 2d at
1203).
An agency may not reject the ALJ’s factual findings unless they are not
supported by competent substantial evidence. § 120.57(1)(l), Fla. Stat.
(2019); Yerks v. Sch. Bd. of Broward Cnty.,
219 So. 3d 844, 848 (Fla. 4th
DCA 2017). To reject or modify the ALJ’s conclusion of law, “the agency
must state with particularity its reasons for rejecting or modifying such
conclusion of law . . . and must make a finding that its substituted
conclusion of law . . . is as or more reasonable than that which was rejected
or modified.” § 120.57(1)(l), Fla. Stat. (2019).
“The court shall remand a case to the agency for further proceedings
consistent with the court’s decision or set aside agency action, as
appropriate, when it finds that: . . . (b) The agency’s action depends on any
finding of fact that is not supported by competent, substantial evidence in
the record of a hearing conducted pursuant to ss. 120.569 and 120.57[.]”
§ 120.68(7), Fla. Stat. (2019). “[H]owever, the court shall not substitute
its judgment for that of the agency as to the weight of the evidence on any
disputed finding of fact[.]” § 120.68(7)(b), Fla. Stat. (2019); see also Phillips
v. Dep’t of Juv. Just.,
736 So. 2d 118, 119 (Fla. 4th DCA 1999) (“This court
may not substitute its judgment for that of the agency on an issue of
discretion.”).
In this proceeding for an exemption brought under section 435.07, the
“ultimate issue of fact to be determined” is “whether the applicant has
demonstrated rehabilitation by clear and convincing evidence.” J.D.,
114
So. 3d at 1131. “But even if rehabilitation is shown, the applicant is only
eligible for an exemption, not entitled to one.”
Id. “The agency head still
has the discretion to deny the exemption notwithstanding the showing of
rehabilitation, but he or she must articulate the rationale for doing so in
order to facilitate judicial review.”
Id.
“[A]n agency’s discretion is not unbridled; discretionary agency action
is subject to a review for reasonableness.” K.J.S. v. Dep’t of Child. & Family
Servs.,
974 So. 2d 1106, 1109 (Fla. 1st DCA 2007). Thus, even if the
Agency retains the discretion to deny an exemption and articulates its
reasons for doing so, that is not the end of the inquiry. Instead, a reviewing
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court will assess whether the Agency has abused its discretion in denying
the exemption. See J.D.,
114 So. 3d at 1134.
No evidence in the record supports the Agency’s stated reasons for
denying Garcia’s request for an exemption.
The misdemeanor offense was completely unrelated to Garcia’s work
with Medicaid patients or the Medicaid program. The ALJ specifically
found that, upon consideration of the entire record, Garcia “will not
present a danger to the Medicaid patients with whom she would have
contact with as a certified nurse midwife” and that “no evidence was
presented that [Garcia] was a danger while [caring for patients].” These
findings of fact were adopted by the Agency in its Final Order and the
Agency does not dispute there was competent substantial evidence to
support these findings.
Nothing in the record suggested that the one year since Garcia’s
successful completion of probation was inadequate to demonstrate
rehabilitation. In arguing that “so little time” has passed, the Agency is
essentially rejecting the ALJ’s finding of fact that Garcia has been
rehabilitated, which it is not permitted to do when such finding is
supported by competent substantial evidence. See § 120.57(1)(l), Fla. Stat.
(2019) (“The agency may not reject or modify the findings of fact unless the
agency first determines from a review of the entire record, and states with
particularity in the order, that the findings of fact were not based upon
competent substantial evidence . . . .”).
Nothing in the record indicates that Garcia’s continued pursuit of
counseling enhances her danger to Medicaid patients. In its answer brief,
the Agency explains that “the record testimony indicating that Ms. Garcia
needs to continue with therapy to keep her level and on the right path is
reasonably concerning to the Agency, given that her participation in
therapy is voluntary and she can cease the sessions at any time.”
However, these facts are not supported by record evidence.
There was no testimony or evidence to indicate that she is continuing
therapy “for issues related to the criminal offenses.” Likewise, there was
no testimony or evidence presented that Garcia “needs to continue with
therapy to keep her level and on the right path.”
Garcia’s psychologist did not testify that her prognosis was contingent
on her continuation in therapy. He opined “without any hesitation” that
Garcia has been “100 percent rehabilitated” and that there is “no
possibility” that Garcia will engage in any other criminal behavior again.
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We distinguish this case from Heburn v. Department of Children &
Families,
772 So. 2d 561 (Fla. 1st DCA 2000). That case involved
persistent criminal behavior and more serious disqualifying offenses than
the conduct at issue in this case.
Id. at 562–63. The Heburn appellant
had spent many years in a lifestyle of drugs and crime and was given many
opportunities to change before he was sentenced to nine years in prison.
Id. at 563. For this reason, the First District agreed with the Department’s
conclusion “that the length of time since [appellant’s] last incarceration is
not a sufficiently long period of time to grant an exemption, given the
severity of the offenses.”
We reverse the Agency’s final order and remand with directions to
approve the requested exemption.
MAY and DAMOORGIAN, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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