Has 3 years passed?
I have received a number of inquiries since the beginning of the year from people who were denied an Exemption from Disqualification because the Agency for Health Care Administration (AHCA) or the Department of Health (DOH), deemed that they had not completed their criminal sentence or penalties as required. The problem arises because of AHCA & DOH’s reading of the statutes (which, by the way is correct generally) involving whether 3 years has passed since the applicant has completed his or her sentence or sanction.
The statute in question reads:
435.07 Exemptions from disqualification.—Unless otherwise provided by law, the provisions of this section apply to exemptions from disqualification for disqualifying 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) The head of the appropriate agency may grant to any employee otherwise disqualified from employment an exemption from disqualification for:
(a) 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 sanction for the disqualifying felony;
(b) 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 sanction;
(c) Offenses that were felonies when committed but that are now misdemeanors and for which the applicant for the exemption has completed or been lawfully released from confinement, supervision, or sanction; or
(d) Findings of delinquency. For offenses that would be felonies if committed by an adult and the record has not been sealed or expunged, the exemption may not be granted until at least 3 years have elapsed since the applicant for the exemption has completed or been lawfully released from confinement, supervision, or sanction for the disqualifying offense.
The problem that some people have encountered is when they have felonies on their record but 3 years have not passed since they completed ALL of their sentence then AHCA or DOH denies their request for an exemption. This means they can’t work in Florida. Some health care professionals have told me their probation or confinement ended more than 3 years ago, but later find out that they forgot to pay fines or monetary penalties that were a part of the original sentence. Hypothetically, a person who enters school to be a nurse only to find a criminal matter came up on his background check from back in the 1990’s. He insists he served all the terms of his sentence. However, as a part of the application process to get an Exemption from AHCA or DOH you have to submit documentation from the Court showing that your case was “closed” or “disposed of.” As it turns out many times, there is an unpaid fine or penalty that the person forgot to pay. So if you go pay it now, then 3 years has to pass until you can be considered for an exemption.
Why is this? Because AHCA and to some extent DOH construes the word “sanction” in Section 435.07, Florida Statutes, (cited above) to include fines and money penalties that were ordered as a part of the original criminal case. This would include fines and criminal money penalties ordered by the Judge as a part of the sentence.
What can you do? Get documents from the Clerk of the Court where the criminal case was decided. Obtain documents showing that you paid all of the fines and what date they were fully paid. Hopefully, it’s more than 3 years ago. Also, try to obtain documents from the Clerk of Court showing which amounts you paid were actual “fines” as opposed to “court costs.” Although I have not encountered it in my practice yet, there may be an argument that “court costs” are not “fines.”
When you are denied the right to work and notified by the State you are usually advised of your rights by DOH or AHCA to challenge the denial. It is best to always consult an experienced health care attorneyimmediately after receiving notice that you have been denied. The State has important time deadlines that must be met or you lose your right to challenge the denial.
To set up a free no obligation consultation call 850-877-7776.