Licensing Loophole: How a CNA accused of inappropriate behavior was allowed to keep working

While researching a story about a certified nursing assistant accused of inappropriately touching patients for years, 10 Investigates uncovered a legal loophole that allowed him to continue getting jobs at different care centers.

He also pleaded no contest to battery of a patient and worked three more jobs before being arrested again in September of 2019 for touching patients inappropriately and in several different facilities dating back to 2016.

Rep. Sprowls, who represents the 65th District -- where the CNA was working -- pushed to get last-minute amendments added into a bill. The goal was to change the way healthcare employees were screened, so multiple families weren't repeatedly victimized by a worker who had previously been accused of crimes at another care facility.

“There should never be an instance where someone like this who’s hurt someone else in a setting, like this in a hospital, is then able to go and work in a nursing home and have a potential for other victims. It’s appalling that it was able to happen,” Sprowls told 10 Investigates during the reporting for our series.

The bill passed unanimously in the Florida House and Senate.

In the playlist below, you can watch the four installments in our Licensing Loophole reporting.

WATCH: Investigation | Progress | Action | Next steps

RELATED: 'Licensing loophole' bill to protect patients passes unanimously

Licensing Loophole: He was accused of inappropriately touching patients at nursing homes, but he continued to work

Ashley says everything changed in an instant for her family after her mom, Deborah, had a stroke that left her in a coma.

When she awoke, Ashley searched for facilities that would be able to give her mother the around-the-clock care that she would need.

“The stroke left her paralyzed on the left side,” Ashley said.

Deborah was placed in two other nursing homes before landing at a facility in Clearwater, Florida.

“We thought she would be safe,” said Ashley.

She would check in with her mother several times a day.

She was fully aware mentally.

“We were talking, and she casually mentioned over the phone that someone touched her the wrong way,” Ashley explained.

She says that someone was Falo Kane, a certified nursing assistant at the facility.

“I said 'wait, what do you mean someone touched you?' She said he touched her in her private areas,” Ashley said.

Police were called out to the facility, and a rape test was taken.

Kane never stepped foot in her mother’s facility again.

A pattern of alleged abuse 

In September, news broke that CNA Falo Kane was arrested for sexually assaulting numerous patients in his care. One of those patients was Ashley’s mom, Deborah.

The other patients came from other facilities around Pinellas County.

This was the first time we had heard about Kane. 10 Investigates began looking into his background.

The first thing we did was pull up his license on the Florida Department of Health website. It showed no discipline and no complaints.

Click here to look up licenses yourself. 

But when we combed through the police reports on him we found this wasn’t the first time he had been arrested for having a sexual encounter with someone in his care.

We asked ourselves, “How could he still have a license and be allowed to care for patients”? “How is his license clean when he’s been arrested before?”

This is what we do here. We dive deep into our stories.

We found a police report from an arrest in 2018; and in the narrative we read: "due to the sexual nature of the crime, his previous arrest history, a pattern of current sexual behavior and his reluctance to admit to the crime he is not eligible for APAD."

Which is basically a diversion program.

This led us to ask for arrest records from other agencies -- because what is this history the investigator is noting?

We found there were several complaints made by patients against CNA Falo Kane, dating back to 2016.

Ashley’s mom was the first complaint filed against Kane that we could find.

“It’s heartbreaking to see her go through that. She is aware what is going on. She knew it was wrong. She just couldn’t stop it,” Ashley said.

RELATED: More charges added to man accused of sexually battering women at health care facilities

RELATED: Clearwater nursing assistant accused of sexually battering 4 elderly women in his care

There were complaints, but a clean record

Florida Law requires licensed health care practitioners to report sexual abuse allegations to the Department of Health.

FL Statute 456.063(3) - Licensed health care practitioners shall report allegations of sexual misconduct to the department, regardless of the practice setting in which the alleged sexual misconduct occurred.

An email from the Department of the Health’s spokesperson said that same statute where you’re required to report an allegation also states that if a complaint does not rise to a level of probable cause being found, then that complaint never becomes public record.

“I cannot say whether or not the Department receives a complaint or plans to take action against any practitioner until 10 days after probable cause is found. This is established by Florida Statute 456.073. If the Department receives a complaint and it rises to the level of probable cause being found, then I can provide that information. However, if the department receives a complaint and does not find sufficient information(probable cause) to further investigate the complaint, then the complaint would never be public record.”

His record showed no signs of wrongdoing because, although he was under investigation for multiple allegations: "An arrest or waiting for trial is not evidence of wrongdoing and our statues recognize this by providing that only a conviction or plea is actionable."

Kane's license was revoked by the board in December 2019 -- but not because of his most recent arrest. This is from the plea for the arrest that happened a year and a half before.

READ MORE: Click here to view Falo Kane's disciplinary form
READ MORE: Click here to see the public complaint against Falo Kane 

FDOH is not the only agency involved with certified nursing assistants

The Agency for Health Care Administration (AHCA) conducts background checks for CNAs in the state of Florida.

When we first reached out to Florida’s AHCA, asking about Kane and how he passed a background check — staff told us they only license facilities and to reach out to the Department of Health for our answer.

We knew that was not right. We asked again.

That’s when they told us they screened him every time for employment. So why didn’t his plea show up? They told us that because of the way Kane was charged in 2018.

He was charged under a certain section that would only flag him during a background check if the crime included a minor. If he had been charged under different sections that include a disabled adult, his plea would have been flagged.

A legal expert tells us this is a glitch in the law.

AHCA told us Kane had a total of 12 background screenings.

His initial primary screening took place on March 17, 2011, and he became ineligible for employment on Sept. 17, 2019. He was deemed ineligible for employment twice before -- once in June 2014, which coincides with a grand theft charge that was later reduced, and again in May 2018, coinciding with his arrest at Mease Countryside Hospital.

That charge was later changed to a misdemeanor – that didn’t include a minor.

Here’s a statement from Secretary Mary Mayhew:
“The Agency’s most fundamental commitment is protecting the health and well-being of patients and residents at health care facilities throughout Florida. Our background screening clearinghouse is a comprehensive tool used to ensure those applying for employment with a facility are eligible and meet all legal criteria prior to employment. When a screening is complete, providers receive a full criminal history of an individual, including all arrests. If an individual is deemed eligible, it is ultimately the responsibility of employers to take criminal records into account when making employment decisions in the best interest of those entrusted to their care.” 

The Department of Children and Families also investigated Kane

We reached out to the Florida Department of Children and Families since the people Kane is accused of abusing were either elderly and disabled.

DCF does not have any authority over CNAs or assisted living facilities.

The spokesperson provided this background information:

DCFs’ Adult Protective Services program is responsible for preventing further harm to vulnerable adults who are victims of abuse, neglect, exploitation or self-neglect. If at any time during a protective investigation the department has reasonable cause to believe that a vulnerable adult has been abused, neglected, or exploited by another person, the appropriate law enforcement agency is immediately notified. The agency may begin a criminal investigation concurrent with or independent of the protective investigation of the department.

The Department of Children and Families’ (DCF) Adult Protective Services program conducted the following investigations involving allegations of sexual abuse at the listed facilities:

9/18/19 – 9/24/19

Advanced Care Center

Allegation: Sexual Abuse

Finding: No Indicators

9/9/19 – 9/17/19

Advanced Health and Rehabilitation

Allegation: Sexual Abuse

Finding: Verified

6/29/19 – 7/23/19

Sabal Palms Health Care Center

Allegation: Inadequate Supervision; Finding: Verified

Allegation: Sexual Abuse; Finding: Not Substantiated

3/25/19 – 3/26/19

Glen Oaks Health Care

Allegation: Sexual Abuse

Finding: Not Substantiated

9/2/16 – 9/27/16

Clearwater Center Nursing Home

Allegation: Sexual Abuse

Finding: No Indicator

5/13/16 – 7/8/16

Comprehensive Healthcare of Clearwater

Allegation: Sexual Abuse

Finding: Not Substantiated

Key to understanding DCF findings:

• "No indicators": This finding is used when there is no credible evidence to support the allegations in the report. Subjects of the report, any witnesses and collateral documentation do not substantiate the allegations.
• "Not substantiated": This finding is used when there is credible evidence, which does not meet the standard of being a preponderance, to support that the specific injury or harm was the result of abuse, neglect, exploitation or self-neglect.
• "Verified": This finding is used when there is a preponderance of credible evidence that supports the maltreatments.

Kane admits what he did was wrong

In an interview with police, Kane told Clearwater detectives what he did was wrong.

“At the end of the day, I’m a health care worker. At the end of the day, that shouldn’t have occurred,” says Kane while speaking with police.

Kane described in intimate detail what occurred between him and some of the female patients at the facilities where he is being accused.

During the interview, police asked Kane if he would say he was guilty.

“I would say I am guilty for everything I did.“

Kane also wrote an apology letter to the woman he allegedly abused.

“If I could write a letter to every last one of them, if I could admit my wrongs and let them see it and read it, whatever the case maybe.”

"The red flags are waving everywhere."

We asked to sit down with the director of the Florida Department of Health to talk to us about the process and procedures for licensing CNAs in the state and Kane.

The Department denied our request.

But, Sen. Ed Hooper, who represents the 16th district which includes part of Pinellas County, agreed to sit down with us.

We showed him the allegations, the statutes, and a possible loophole that allowed Kane to work place to place.

“You’re innocent until proven guilty, but that’s a pretty good track record of allegations and arrests and a series that should be unacceptable. Fact it’s reoccurring and happening to many times.”

Sen. Hooper vowed to take our information and visit with the DOH to find out what we need to do to protect the frailest of our citizens.

“That’s unacceptable. Most important thing is to protect our citizens. One incident too many. This many incidents beyond a reasonable doubt.”

Ashley says she can only hope something changes.

“There should be a hit on a license. Maybe if that would’ve been done, he would’ve been under a microscope. Maybe would had been keeping a closer eye on him.”

She says after Kane left the facility, signs were posted around her mother’s room, saying no male contact. Her mom spent her life looking after her, now Ashley says it’s time to do whatever it takes to make sure her mom is not only looked after but also protected.

“It’s terrible. It makes you emotional. We spent so many hours and knowing what my mother had to deal with all this trauma,” said Locke. “It’s bad enough that someone must be in nursing home rest of their life to know that they had to go through this trauma of being scared of being in a facility like this, it’s completely heartbreaking.”

Kane denied all our requests to speak to him.

10 INVESTIGATES CARES: If you believe someone you know is being abused, report it. You can call Adult Protective Services at 1-800-962-2873 or click here to submit a report online. The Florida Abuse Hotline takes reports 24 hours a day. If you suspect someone you know is in immediate danger, call 911. 

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