STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
MILDRED COFFEY, )
)
Petitioner, )
)
vs. ) CASE NO. 79-1841
)
DEPARTMENT OF HEALTH AND )
REHABILITATIVE SERVICES, )
)
Respondent. )
)
RECOMMENDED ORDER
A hearing was held in the above captioned matter, after due notice, at Orlando, Florida, on November 28-29, 1979, and January 11, 1980, before Thomas
Oldham, Hearing Officer.
APPEARANCES
For Petitioner: Dennis L. Salvagio, Esquire
22 East Pine Street Orlando, Florida 32801
For Respondent: Douglas E. Whitney, Esquire
Department of Health and Rehabilitative Services
District VII Counsel
Room 912, 400 West Robinson Street
Orlando, Florida 32001 ISSUE
Whether Petitioner's application for license for a group home facility pursuant to Section 393.067, Florida Statutes, should be approved.
FINDINGS OF FACT
In May, 1979, Petitioner submitted to Respondent an application for a license to operate a retardation group home facility at 4134 San Seviera Lane, Orlando, Florida. By letter of July 27, 1979, Respondent's District VII Administrator, Lucy D. Hadi, advised Petitioner of the denial of her application due to her "inability to comply with the standards as set forth in 10F-6.10, Florida Administrative Code." The letter further advised Petitioner of her right to a hearing under Chapter 120, Florida Statutes and Petitioner thereafter appealed the decision and requested a hearing in the matter. (Petitioner's Exhibits 5-6)
Prior to filing her application for licensure, Petitioner had operated a retardation facility at her residence for more than three years. The facility was originally operated under the supervision of an organization called the
Children's Home Society, but in January 1977 the home came under the supervision of Respondent. For a five-year period prior to operation of the residential facility, Petitioner was employed at a Sunland Training Center in Orlando where she served as a supervising aide in charge of a ward for mentally retarded children. (Testimony of Petitioner, Petitioner's Exhibit 5)
During the period 1977-1979, Petitioner had operated as an "approved" residential facility under contract with Respondent, and was subject to standards set forth in the agency's written policy concerning the community residential placement program. In 1977, Chapter 393, Florida Statutes, was amended to require licensure of such facilities, thus prompting Petitioner's application. New standards for licensure and operation of residential facilities were promulgated by the Respondent in 1978 in Chapter 10F-6, Florida Administrative Code. Although the new operating standards did not vary substantially from the existing policy guidelines, Respondent held several training sessions in February, 1979, to acquaint operators of currently approved facilities with the new provisions which would govern them when they became licensed under the new law. Petitioner attended these training sessions at which time the revised standards were explained, including a new requirement that agency approval had to be obtained prior to the acceptance of a private client by a residential facility. At that time, Respondent's policy standards related only to clients referred by tile agency and not to "private clients" who might reside in the facility under separate agreements with the parents. (Testimony of Petitioner, Hadi, Porta, Petitioner's Exhibit 4)
On May 3, 1979, one of Respondent's supervisory employees conducted a pre-licensure inspection of Petitioner's home. Petitioner then had seven agency clients and two private clients residing in the facility. Respondent's inspector advised her that agency approval would be required to accept private clients after receiving a license. Petitioner acknowledged this requirement and told the inspector that she would not take such clients without the approval of the HRS program supervisor. The inspector found several minor deficiencies including insufficient square footage and baths for the number of individuals residing in the home. However, Petitioner was in the process of building an addition to the home at that time which would meet the program requirements as to physical facilities. The new agency rules also required that a prospective licensee have sufficient available financial capital or income to operate the facility for a sixty-day period without depending upon agency client fees or payments. Although Petitioner signed a form statement attached to her application stating that she had sufficient capital for the required sixty-day period, she did not complete the various items showing expenses and income as required in the form. She did, however, enclose a separate budget showing various expenses of operating the facility which were not later challenged by the agency. In addition, the reverse of the application form reflected that proof of financial ability to operate the facility could include such a budget showing that anticipated expenses did not exceed reimbursement, and also providing that sufficient capital could include any credit available to the applicant. Petitioner owns her home which presently has a market value of
$52,000, with an outstanding mortgage of$16,000. (Testimony of Petitioner, Porta, Petitioner's Exhibit 5)
On July 9, 1979, while her application was pending, petitioner accepted a private client, Curtis Duncan, for a brief period while his parents were on vacation. Curtis was a six year old hyperactive child with cerebral palsy. He was unable to walk and had limited control of head movement. Petitioner did not advise Respondent's personnel of his presence in her home because she viewed it as merely a temporary "baby sitting" job which did not involve an agency client.
On Tuesday, July 10, she sent the child-to his regular school for the profoundly handicapped. That evening, while Petitioner was feeding him, he grabbed her arm and, as Petitioner pulled her arm free, his head struck the flat edge of the round table. The blow caused a knot to rise in the middle of his forehead and Petitioner applied an ice pack to reduce the swelling. The boy seemed to have no after effects from the injury. Petitioner sent the child to school the next day. Her mother, a staff member of the group facility, advised the school nurse about the incident and the nurse indicated that the child appeared at school frequently with bruises. Although it was discovered at school that he had a 102 temperature, school authorities were not alarmed because he had a history of frequently having high temperatures. Petitioner took the child's temperature again when he returned from school and found it to be normal. She kept him home from school on Thursday in order to observe him. In the afternoon while Curtis was in the home's multipurpose room in his chair, Petitioner heard him making noises and saw another child leaving the room. Petitioner observed that Curtis's eye had been lacerated and that a hair brush was on the floor. She concluded that the other client must have hit Curtis with the brush because he had done so before to other children. Curtis, however, seemed to have no after effects from the injury and had a good appetite that evening. On Friday, July 13, Petitioner planned to send the boy to school. While her daughter and mother were feeding Curtis that morning, the boy jerked his head back and appeared to have trouble breathing The daughter informed Petitioner who was talking to a visitor in another room in the house. When Petitioner entered the other room, she observed Curtis on his back on the foam rubber mattress on the floor where he slept. He had food in his mouth and she at first believed that he had choked on it. She immediately began administering standard resuscitation methods and had her mother call the emergency rescue unit. It arrived a few minutes later and after paramedics had manipulated the boy by hitting him on the back and tossing him in order to dislodge a supposed object in his throat, and after further resuscitation efforts, he was taken to Orlando General Hospital and thereafter transferred to the Orlando Regional Medical Center. Petitioner had advised the child's grandmother the previous day concerning the bruise received on Tuesday because she did not know where the parents were located at the time. After Curtis was taken to the hospital, Petitioner picked up the grandmother and took her to the hospital. On July 14, 1979, the child died at the hospital.
The death certificate showed the immediate cause of death as bilateral subdural hematoma due to or as a consequence of blunt head trauma, and the death was categorized on the death certificate by the Associate Medical Examiner of Orange County, as a probable homicide. On July 17, 1979, Respondent's personnel removed the other children from Petitioner's facility and transferred them to other residences pending investigation of the death by its personnel and by Orange County law enforcement authorities. (Testimony of Petitioner, Weir, Kessler, Respondent's Exhibits 1-4)
The medical examiner who determined the cause of death had conducted an autopsy of the deceased child on July 15, 1979. Although he found a number of specific areas of trauma consisting of contusions, lacerations and abrasions on the body, he is of the opinion that death could have resulted only from either of two contusions on the forehead or one which encircled the right eye. He estimated that each of the three injuries had been inflicted within five days prior to date of death. At the hearing, the medical examiner testified that manifestations of the death inducing trauma from subdural hematoma were fever, headaches, sensitivity to light, irritability, nausea, lethargy, and inability to swallow. He was of the opinion that the contusions on the forehead probably were not Self-inflicted because they were in the frontal rather than the occipital area. He further questioned whether the wound on the right eye could have been caused by a hair brush and was also of the opinion that the contusions
on the forehead would have required the head to have hit a flat table top twice, but were not consistent with blows on a table edge. He acknowledged that the head of pediatrics at Orange Memorial Hospital had-seen the child when brought to the hospital and had been of the opinion that there had been no child abuse. (Testimony of Kessler, Respondent's Exhibits 1-4)
The Orange County Sheriff's Department and the Office of the State Attorney of Orange County investigated the circumstances surrounding the death of Curtis Duncan in view of the stated probable cause of death in the death certificate as homicide. No charges have been filed however, and the case is listed as "open" in the files of the state attorney. (Testimony of Jaeger)
Subsequent to the death of the child, three of Respondent's District VII personnel were appointed to conduct an administrative inquiry. On July 24, 1979, they interviewed Petitioner and her mother at their home. Based on these interviews, and information derived from various files of the Respondent concerning members of Petitioner's family, the committee prepared a "social summary" or report concerning the background of Petitioner and various members of her family. Petitioner, who was born in 1930, together with her mother and sister, had been subject to abuse in her childhood by her father who had been a heavy drinker. Petitioner had been sexually abused by her father and, at an early age, she contracted a venereal disease from an intoxicated physician whom the father had brought home to treat the two girls when they were ill. After this incident, Petitioner and her sister lived in a children's home for three years. The mother then moved with the girls from Arkansas to Florida in 1944 or 1945. Petitioner was married twice and her second husband was physically abusive to her and her children. She divorced him in 1970 or 1971 at which time she commenced employment at Sunland. During one period of her first marriage, Petitioner's father had come to Florida to live with her, but was abusive toward her children, thereby causing her husband to insist that he leave. Petitioner told the interviewers that on one occasion when she was a child, she attacked her father with a poker after becoming angry about his mistreatment of her mother.
A "district intake specialist" in Respondent's District VII Children's Youth Program Office was qualified as an expert at the hearing to testify concerning the sociological of concept known "abuse syndrome" which draws aspects a as upon a body of information developed through research projects concerning various aspects of child abuse. This term is defined as an evolutionary process by which adults who were denied "positive developmental experience" as children, are inclined to compulsively apply negative experiences in the form of mental, physical, or sexual abuse to their children or to children in their care. It proceeds under the theory that parents who were abused as children are not always able to control their emotions and sometimes react to frustrations incident to child rearing by violent acts directed to the child. These individuals are said to have a history of marital problems and generally seek a spouse who is violent. Such individuals do not know how to handle minor crises involving children and are apt to react excessively in minor incidents. This course of conduct can be of a continuing or latent nature.
Many abused children are those with special needs such as the emotionally or physically handicapped who need special attention. There is a pattern of formerly abused individuals to seek foster children or employment in daycare centers in an effort to assist them and compensate for their own problems.
Therapy administered by social or mental health workers in the form of counseling is generally required to alleviate the underlying problems of those subject to the syndrome. Respondent's expert is of the opinion that Petitioner's family and social background presents a typical abuse syndrome
situation. Respondent's District VII Protective Services supervisor who deals on a constant basis with child abuse and neglect cases has found that some 90 to
95 percent of her cases show the existence of the abuse syndrome. However, no statistics were offered into evidence as to the number or percentage of persons who were abused as a child who later inflicted abuse themselves. (Testimony of Ivancevich, Haase, Brewer, Respondent's Exhibit 4)
Respondent's denial of Petitioner's application for license on July 27, 1979, was based in part upon the recommendations of Respondent's Developmental Services supervisor who had served on the committee of inquiry.
He recommended denial solely because of the Duncan incident. Specifically he found that the child had not received HRS permission to be in Petitioner's home, and that Petitioner had improperly handled the "emergency" situation by not obtaining medical treatment at the outset Of the child's injuries. The overriding factor in his recommendation, however, was that the circumstances of the child's death had not been fully ascertained and that therefore, in the interest of protecting child welfare, it would be unwise to approve Petitioner's application until such time as a final determination is made. He conceded that Petitioner's background had played a part in his recommendation. He also acknowledged that permission was routinely granted by the agency for a facility to take in private clients if it did not interfere with the adequacy of the facilities or the capabilities of the staff.
Respondent's District VII administrator, who made the final decision of license denial, acknowledged that Petitioner had had a good record as a facility operator prior to the Duncan incident with no complaints or indications of abuse or neglect of her clients. She based her decision on the staff reports received concerning the Duncan incident and the manner in which it was handled by Petitioner. She was unaware however, that the school nurse had been notified of the child's initial injury on Tuesday, July 10 and conceded that although she believed Petitioner should have called a physician concerning the matter, admitted that the nurse should have done so also. She was also concerned that Petitioner had not resorted the boy's injuries or removal to the hospital to the agency. She was of the opinion that the fact of an unsolved homicide reflected unfavorably upon the character of Petitioner and thus the suitability of her home for client placement. Although certain questions were raised concerning Petitioner's financial ability to operate a home for the required sixty-day period, the district administrator acknowledged that she was unaware of the extent of Petitioner's financial resources. (Testimony of Brewer, Hadi, Petitioner's Exhibit 6)
The principal of the school which Curtis Duncan had attended since 1976 observed that he exhibited self-destructive behavior and would frequently bite his shoulder, index finger, and thumb. He would grab at things and sling his head back and forth in all directions. On occasion, he would strike his head against an object. In one instance he had pulled his chair on top of him which struck his head. He also would lunge forward while being fed. His parents had reported to the principal that he had displayed this type of behavior at home also. He had exhibited bruises at school in the past. The chair in which he sat had a harness and, if it was not secure, he could throw himself out of the chair. On Wednesday, July 11, while at school, the principal observed that Curtis ate in a normal manner and apparently had no discomfort from the injury he had received on the prior evening. (Testimony of Weir)
A pediatrician who had treated Petitioner's clients for various ailments for about three years never observed any indication of abuse or neglect of the children. Petitioner's supervisor at Sunland for a period of two years
considered that Petitioner was extremely responsible and provided excellent care for the children at that facility. She found Petitioner to be quite capable in handling emergencies and never exposed any child to injury. The supervisor gave Petitioner outstanding performance evaluations during this period and attested at the hearing to her good character. Similarly, several operators of residential facilities in the Orlando area testified at the hearing as to their knowledge of Petitioner and as to her excellent qualifications and reputation in the community. The mothers of two handicapped children who have lived in Petitioner's facility both as HRS and private clients, and who are very difficult to handle, testified concerning their extreme satisfaction with Petitioner's care and ability to manage the children in a highly successful manner. Respondent's facility has been the subject of unannounced inspections by Respondent's personnel in the past and it was always found that the children were receiving excellent care and supervision. (Testimony of Cuevas, Brainerd, Oliver, Marini, Willett, Hopkins, Goins, Petitioner's Exhibit 3)
CONCLUSIONS OF LAW
Petitioner seeks a license for a group home facility pursuant to Chapter 393, Florida Statutes. Section 393.067 provides for the filing of license applications, sets forth required contents of same, and mandates that Respondent promulgate rules establishing "minimum standards for licensure for residential facilities, including minimum standards of quality and adequacy of care."
Pursuant to the above stated statutory requirement, Petitioner published its rules in 1978 which are set forth in Chapter 10F-6, Florida Administrative Code. Rule 10F-6.01 provides that a Prospective licensee and the facility must meet the applicable minimum standards for residential facilities as set forth in Chapter 10F-6 in order to qualify for a license. These standards are enumerated in Rule 10P-6.10 for group home facilities. Rule 10F-6.06 provides that a facility serving clients of the agency prior to the effective date of the rules is considered to be in compliance with Chapter 10F-6 if its contract is subject to then existing facility standards, but that it must obtain a license under the said chapter within a year of its effective date. It also provides that a licensee must comply with the standards of Chapter 10F-6 "as of the effective date of any license issued under this chapter."
The parties stipulated at the hearing that only the following provisions of Rule 10F-6.10 are in issue:
10F-6.10 Group home facility standards.
(2) Budget and finance.
Proprietorship and partnership facilities shall verify by signed statement that the program can be maintained without dependence on reimbursement for at least sixty (60) days from the date of opening.
(5) Personnel qualifications, requirements and responsibilities.
(c) Staff shall be . capable of handling
an emergency situation promptly and intelligently; and be willing to cooperate with the supervisory staff.
The administrator of a group home facility shall be a person of responsible
character and integrity, qualified by education, training, and/or experience to effective manage the facility....
(15) Discipline and abuse.
(b) The facility shall take all reasonable precautions to assure that no client is exposed to, or instigates, such behavior as might be physically or emotionally injurious to him/ herself, or to another person.
Intake and placement procedures.
Intake:
3. A group home facility serving clients shall not provide residential service to any private
client or Department client other than a Retardation Program client whose physical or mental condition might adversely effect the welfare and development of the client(s) accepted by the facility. The group home shall have prior approval of the District retardation staff of its intent to accept other
than Retardation Program clients.
(23) Emergencies:
(c) Serious illness, accident, injury, death, assault, and missing clients should be handled as an emergency.
The staff should meet the immediate needs of the client and then report the incident by telephone to the District office as instructed by the social worker serving the facility. In base of suspected abuse, the incident
shall also be reported to the Abuse Registry.
As to the above stated financial responsibility requirement, Petitioner has provided the required signed statement that she can maintain the program without dependence on reimbursement for a period of at least sixty (60) days from the date of opening. The evidence shows that she has indeed operated the facility without financial difficulty for a period of over three years and has adequate assets to draw upon if necessary pending receipt of reimbursement from Respondent for care of clients. Accordingly, it is concluded that Petitioner has met the required standard of Rule 10F-6.10 (2)(b)
Respondent points to the Duncan incident as showing that Petitioner would not be capable of meeting emergencies involving clients as set forth in Rule 10F-6.10(5)(c) and (23)(c). Agency Personnel are of the belief that Petitioner demonstrated her inadequacy in this regard in the Duncan situation by failing to call upon a physician for treatment for the child and for failure to report his injuries to their district Personnel. The evidence however shows that the child's Bruises arising from the Tuesday incident, his fever the next day, and the injury received on Thursday, July 12, appeared to be of a relatively minor nature with no apparent complications. The school nurse was informed promptly of the initial incident and the child was kept at home under observation on Thursday of the week in question. At no time did the boy appear to be uncomfortable nor did he exhibit any of the various manifestations described by the medical examiner as indicating the presence of a more serious problem such as internal bleeding. The child had had a fever on Wednesday of
that week, but it was normal at the end of the day. Although the injury which the child received on Thursday causing contusions around the right eye and a small laceration might well have promoted one to use caution and seek the advice of a physician, it is noteworthy that he did not appear to suffer after effects from the injury and it was described in the autopsy report as a superficial wound. When viewed in connection with her many years of experience and acknowledged qualifications in child care, it does not appear that Petitioner would have failed to seek professional help if she reasonably had been aware that the injuries were of a serious nature and constituted an emergency situation. Indeed, the following day when the child obviously had need of emergency care, Petitioner took immediate steps to administer emergency resuscitation and promptly obtained the services of emergency rescue personnel.
Finally, in view of the fact that the standards under which Petitioner was operating at the time of the Duncan incident did not govern private clients in a facility, Petitioner was not required to obtain prior departmental approval for taking the child in her care or in notifying agency personnel of his injuries or subsequent transport to the hospital, as would be required if she had been licensed under Chapter 10F-6, pursuant to Rule 10F-6.10 (23)(c)
Respondent's reluctance to approve Petitioner's license application as long as the circumstances of Curtis Duncan's death have not been fully resolved by state law enforcement authorities is perhaps understandable, but cannot serve as a basis for license denial indefinitely. Petitioner adequately established her general qualifications for licensure at the hearing and, in light of the evidence presented at such hearing, the fact that a child died after receiving injuries while under her care can only be viewed as an isolated and unfortunate incident which should not bar licensure. It is therefore concluded that Petitioner's application should be approved.
That Petitioner's license application for a group home facility pursuant to Chapter 393, Florida Statutes, be approved.
DONE and ENTERED this 5th day of February, 1980, in Tallahassee, Florida.
THOMAS C. OLDHAM
Hearing Officer
Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301
(904) 488-9675
COPIES FURNISHED:
Department of Health and Rehabilitative Services
Attn: George Waas, Esquire 1317 Winewood Boulevard
Tallahassee, Florida 32301
Dennis L. Salvagio, Esquire
22 East Pine Street Orlando, Florida 32801
Douglas E. Whitney, Esquire Department of HRS
District VII Counsel
Room 912 - 400 West Robinson Street Orlando, Florida 32801
| Issue Date | Proceedings |
|---|---|
| Mar. 26, 1980 | Final Order filed. |
| Feb. 05, 1980 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Mar. 21, 1980 | Agency Final Order | |
| Feb. 05, 1980 | Recommended Order | Respondent didn't show why death of child under Petitioner's care, which was not due to abuse, should result in denial of license. |
