STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANN MILLER, )

)

Petitioner, )

)

vs. ) CASE NO. 86-0230

) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for final bearing before Ella Jane P. Davis, a duly assigned Hearing Officer of the Division of Administrative Hearings, in Clearwater, Florida, on November 24 and 25, 1986.

APPEARANCES

For Petitioner: Elizabeth Anne Goodale, Esquire

1432 Indian Rocks Road Largo, Florida 33544

For Respondent: V. John Brook, Esquire

695 Central Avenue, Suite 213 St. Petersburg, Florida 33701

ISSUE

Whether Petitioner may be granted a Children, Youth and Families Special Home foster care license pursuant to Section 409.175, Florida Statutes, and Rule 10M-6.05, Florida Administrative Code.

BACKGROUND AND PROCEDURE

Pursuant to Chapter 415, Florida Statutes, and the confidentiality guidelines established in Department of Health and Rehabilitative Services v. Tallahassee Democrat, Inc., 481 So.2d 958 (Fla. 1st DCA 1986), initials in place of the names of certain children have been utilized throughout formal hearing and this Recommended Order.

At formal hearing, one Hearing Officer exhibit was admitted (Interlineated Amended Pre-Hearing Stipulation, HO-A). Petitioner presented the oral testimony of Petitioner Ann Marie Miller, Paula Margarita Maxwell, Gail Burt, Alice Norita Beale, Anne Smith, Betty Shannon, Mary Beth Shaughnessey, Rex R. Diem, Carol Jay Nofsinger, Dennis Dillon, Linda Lou Slater, Deborah Heaton, Lori Slater and Victoria Parrett (by deposition P-4) and had admitted 7 exhibits. I.D. P-8 was not admitted. Respondent presented the oral testimony of George H. Siebert, Cheri Klamm, Sue McLaughlin, Gail Vinson, Sandy Rounds, and Sue Vogt, and had admitted 10 exhibits. I.D. R-6 was not admitted.

Pursuant to stipulation of the parties, Petitioner was granted leave to take and file depositions of two witnesses who had failed to appear for formal hearing in response to validly served subpoenas. Provision was made for Respondent to file written objections to the after-filed depositions in the form of certified questions and to advise the undersigned if a transcript of the oral proceedings of November 24-25, 1986, would be filed. The depositions have been filed by Petitioner and no objections thereto have been filed by Respondent.

Accordingly, the depositions of Victoria Butler and James D. Grimshaw, D.O., are deemed admitted as Petitioner's Exhibits 9 and 10, respectively. The parties have also filed their proposed findings of fact and conclusions of law without the provision of any transcript and within the extended time-frame to which they stipulated at formal hearing. Accordingly, those proposals have been ruled upon pursuant to Section 120.59(2), Florida Statutes, in the appendix to this Recommended Order.

FINDINGS OF FACT

1. The Petitioner was previously licensed for an HRS Foster Home in 1970. In 1978 her licensing classification was changed to that of a Group Home for Developmental Services as provided for in Section 393.067, Florida Statutes, and 10F-6.10, Florida Administrative Code. At all times, her license number remained 0983-003-008. During that period of fourteen years, her license was never suspended, revoked, or otherwise disciplined by the Department of Health and Rehabilitative Services (HRS), nor has HRS ever sought prosecution of Petitioner by the State Attorney.

   
   

2. Group Homes for Developmental Services (DS) provide foster care for profoundly disabled persons, usually children developmentally handicapped by birth defects or catastrophic injury. On an average, infants in this category have a 1-2 year maximum life expectancy. The most common cause of death among these children is pneumonia. Of the 100-200 children in this category placed with Respondent over the last 6 years of her DS licensure, the most common types of disabilities were congenital deformities, mental retardation, brain damage, developmentally immature digestive systems, seizure activity, and respiratory ailments. Most of the children had special feeding requirements such as liquid diets and gastrointestinal feeding tubes and also had incontinency problems.

   Few were ambulatory. All required frequent prescription medications.

   
   

3. The Petitioner surrendered her DS license 0983-003-008 on April 1, 1984, in the wake of an investigation surrounding the death of the child, E. C., who had been placed in Petitioner's care.

   
   

4. Petitioner filed an application with HRS on September 3, 1985 for a Children, Youth, and Families (CYF) Special Home foster care license as provided for in Section 409.175, Florida Statutes, and 10M-6.05, Florida Administrative Code. A CYF Special Home license does not, in practice, address the same type of client as does the Group Home for Developmental Services license. Rather, according to HRS witness George Siebert, the type of children subject to placement under a CYF license would usually have no physical developmental disability or severe physical impairment. Although CYF children might have emotional, personality, and minor physical problems originating from child or sexual abuse, drugs, alcohol, or family displacement, they are almost always verbal, ambulatory, continent, and capable of regular school attendance at regular school. They do not, as a rule, require of the CYF licensee the 24- hour-per-day intensive nursing skills and administration of prescription medicines for the mere preservation of life that are required by children

   certified eligible for developmental services. Rule 10M-6.05(1)(j), Florida Administrative Code, permits mixing CF and DS programs in the same foster home but only by special agreement between the licensee and HRS.

   
   

5. Petitioner's application for a new CYF license was received in the HRS Licensure Office by Victoria Butler, Central Licensing Supervisor, on September 11, 1985. Victoria Butler, having knowledge of Petitioner's prior experiences with licensure as a Group Home for Developmental Services contacted the program office and was informed that a "staffing" would be held to determine the disposition of the Petitioner's pending CYF license application. The "staffing" was held October 10, 1985, and the application was ultimately rejected on the basis of HRS' prior experience with Petitioner while she held her DS license. Thereafter, HRS did not pursue all the remaining investigations, interviews, and inspections required by statute and rule to determine Petitioner's eligibility for the CYF license. Without further investigation, etc., Petitioner's application was preliminarily denied on October 21, 1985, and she was issued a formal denial dated November 26, 1985.

   
   

6. Mr. Siebert testified that Petitioner's application was denied solely upon authority and application of the criteria contained in Section 409.175, Florida Statutes, and Rule 10M-6.05(1)(c),(e), and (j) and Rule 10M-6.05(2)(g), (i), and (n), Florida Administrative Code. At formal hearing, HRS witnesses expressed no concerns with any other licensure standards provided by rule or statute.

   
   

7. The specifics of the November 26, 1985 denial due to past DS licensure performance were given as: misrepresentations of the number of clients in the home; concerns about the level of care provided by Petitioner including the consistency and quality of the medical care provided by the Petitioner; and nine complaints of neglect and abuse, three of which were listed as "indicated." The "indicated" complaints alleged by Respondent were: 01/05/84 - medical neglect, 03/28/84 - dangerous environment, and 06/05/84 - medical neglect. If these "indicated" complaints are contained in the HRS abuse registry and if they are "substantiated," "verified," or "established," they would be grounds to deny the CYF license. 1/

   
   

8. There has never been a judicial determination with regard to any of the complaints documented against Petitioner's DS license. Moreover, it is unclear whether the complaints listed as "indicated" in local HRS records were ever transmitted to the abuse registry.

9.a. With regard to the "indicated" reports, the burden of proof to substantiate same shifts within this administrative proceeding to the Respondent agency when Respondent seeks to use them for purposes of screening a license applicant, Anderson v. Department of Health and Rehabilitative Services, 485 So.2d 849 (Fla. 1st DCA 1986). Respondent has failed to substantiate, verify, or establish by direct, credible, competent and substantial evidence that Petitioner was guilty of abuse or neglect in the incidents of 01/05/84, 03/28/84, and 06/05/84.

1. The circumstances surrounding the 01/05/84, report are that E. C., a male Developmental Service infant in Petitioner's care, had been ill during the night of 12/09/83 with twelve loose stools and high temperature. Petitioner, a licensed practical nurse, had unsuccessfully used various methods throughout the night to reduce the fever. These methods had been successful in similar situations in the past. These methods included cool baths and doses of Tylenol. Excess administration of Tylenol was not established by competent testimony.

   The following morning, having an appointment for another child, D. P., Petitioner took E. C. to the hospital with her so that he might also be examined. While waiting at the hospital to be seen, E. C. worsened. It took over two hours of entreaties by Petitioner and Cheri Klamm, HRS foster care counselor, before they could persuade a hospital physician to examine E. C. on an emergency basis. This was because E. C. did not have an appointment, and because the hospital would not accept Petitioner's signature to secure treatment. Finally, Cheri Klamm reluctantly agreed to sign for E. C.'s admission. This chronology of events is concurred in by Petitioner, Cheri Klamm and Victoria Parrett. By the time he was finally diagnosed, E. C. was severely dehydrated and eventually a portion of his bowel had to be surgically removed as "dead." He expired during the night. E. C. was approximately 8 months old at date of death with a maximum two year life expectancy. Following interviews and investigations, the HRS report was concluded by the intake investigator as "no disposition" on the medical neglect allegation and on a concurrent "possible dangerous environment" allegation as "closed as unfounded." Upon the foregoing circumstances, Petitioner is determined not to have contributed willfully or neglectfully to the death of E. C.

   
   

2. The circumstances surrounding the 03/28/84 report are that as a result of the death of E. C., HRS personnel had recommended reducing the licensed number of DS children assigned to Petitioner from 7 to 2 or 3. As of 3/27/84 Petitioner had 5 children in her home which was then agreeable to the HRS Developmental Services Program Office personnel. D. P. was a "failure to thrive" female infant, missing half her brain and affected with several other congenital abnormalities. D. P. had been placed as a Developmental Services child with Petitioner soon after birth. Petitioner had "bonded" with D. P. and with her natural parents. In January, 1984, D. P. underwent surgery for insertion of a gastrointestinal feeding tube in her stomach. Thereafter, HRS insisted, contrary to the parents' wishes, on placing D. P. in a medical foster home. D. P. did very well there but D. P.'s mother wanted D. P. returned to Petitioner's home because she considered the care superior, cleaner and more loving. She approached Petitioner about taking D. P. in but HRS workers told Petitioner she was unauthorized to take D. P. back because to do so would put Petitioner over the recommended number of children for her DS license. HRS representatives also refused to replace D. P. with Petitioner in reliance on medical recommendations concerning D. P.'s medical conditions and the number of children already in the Petitioner's home. However, HRS representatives promised Petitioner they would try to get the move authorized and Petitioner agreed on 3/27/84 not to take D. P. back. Then D. P.'s mother, in a unilateral decision, took D. P. from the medical foster home and attempted to care for D.

   P. by herself. Within a day, the mother found she could not cope with the feeding tube. In distress, she brought D. P. to Petitioner. Petitioner relented and took D. P. into her home for special care despite her prior representations to HRS that she would not do so. HRS was notified the following day. With the addition of D. P. to the home there were 6 children full-time in the home. Petitioner voluntarily surrendered her license and HRS removed the DS children from the home. Four of the five families returned their children to the Petitioner's home. Petitioner and Cheri Klamm testified that the Circuit Court ordered that the children be permitted to stay. The Circuit Court Order was not admitted in evidence, but the foregoing fact is found upon corroborating testimony of two witnesses. In the course of its investigation of this incident, the HRS intake investigator became aware on 4/02/84 of the presence of daycare children in the home for part of the day. The intake counselor considered this as raising the number of children in the home to 12 and she found the complaint of "dangerous environment to be "indicated." HRS never prosecuted this matter through the State Attorney as it could have done if it

   considered it a serious problem. Under the foregoing circumstances, and upon the testimony set forth in Finding of Fact 10 infra, it is determined that no child was abused, neglected, or endangered by Petitioner's taking D. P. into her home, although there were technical rule violations both of mixing daycare clients and DS clients and of exceeding the agreed number of clients.

   
   

3. The circumstances surrounding the 06/05/84 report arose after Petitioner surrendered her DS license on April 1, 1984. D. P. had remained in Petitioner's home at the parents' expense. Petitioner had successfully nursed

D. P. through a respiratory illness a few weeks before 06/05/84. Dr. Grimshaw, an osteopathic physician specializing in pediatrics, had seen the child that time and was again consulted on 6/04/84 for the same type of ailment. Because of Petitioner's previous success with a similar infection, Dr. Grimshaw made the judgment call to allow Petitioner to keep D. P. at home instead of admitting her to the hospital. D. P. died suddenly overnight of pneumonia, the most common form of death in this type of child. D. P. was approximately 18 months old with a total life expectancy of less than 2 years. Allegations that D. P.'s formula was changed by Petitioner without a doctor's approval and that D. P. lost significant weight while in Petitioner's care are not supported by the greater weight of the direct credible evidence. According to Dr. Grimshaw, the weight stabilization of D. P. at approximately this time in her short life was reasonable in light of all developmental factors. Although the investigator's report was returned as "indicated," the foregoing circumstances do not establish that Petitioner contributed either willfully or neglectfully to D. P.'s death.

1. None of the other complaints noted by HRS in its denial of Petitioner's present CYF license application were found to be "indicated" by the HRS intake interviewers/investigators who handled them at the time they arose. Unfounded complaints are clearly not "verified," "established," or "substantiated" and ought not now to be resurrected to deny a new and different license.

   
   

   However, at formal hearing, Petitioner addressed these concerns as well and refuted them, Specifically, concerning an occasion when she briefly left her 15 year old daughter alone in the house with the DS patients and another occasion when she briefly left a pregnant adult retarded client in charge, HRS treated these as minimal administrative problems which were corrected upon being brought to Petitioner's attention.

   
   

   From 1980-1984, Petitioner also provided after school daycare for other "special" children who were not certified and supported by HRS as DS children. HRS personnel knew this. These included some learning disabled children, some retarded children, and some handicapped children. All but one was ambulatory. Usually they were picked up by working parents before the DS certified residents arrived home each afternoon from their special school. In late February or early March 1984, agency personnel advised Petitioner to discontinue the practice but did not insist that she discontinue it when Petitioner wanted to continue the daycare until the end of the school year because she felt obligated to the parents. Contrary to the conclusions reached by the intake investigator in the intake report for 3/28/84, Cheri Klamm testified at hearing that no children were endangered by this practice.

   
   

   HRS allegations of school complaints and complaints by the Maxwell Home against Petitioner and her home for dirty, unkempt children were not proven and are refuted by the testimony of Maxwell, Klamm, and Diem. HRS allegations of misuse of medicines and failure to keep adequate records thereof were not proven.

2. Petitioner had requested the removal of Cheri Klamm as her foster case worker. Almost all of the complaints against Petitioner originated in a personality conflict between these two.

   
   

3. Petitioner is devoutly religious and viewed her work as a DS foster parent as a "calling" to improve the quality of life of disadvantaged persons. As a single parent, she has adopted a Downs Syndrome child with impaired hearing and a mentally retarded hydrocephalic child. This child is one whose medical records were questioned and he is making substantial developmental progress. Petitioner has won church, private and community awards for her services to DS children. She seeks a CYF license to continue her calling but in a less demanding way.

   
   

   Petitioner has affirmatively demonstrated that her plan for a licensed CYF home is financially reasonable. By her testimony and that of her family, a school principal, parents, another DS foster parent, nurses, and an osteopathic physician, she has demonstrated that she is of good moral character and medically qualified as an LPN, and that through education, training, experience, and temperament, she is able to take on the care and nurture of the less demanding CYF foster children if a CYF license is granted. The oral testimony of witnesses in her behalf exceeds the three references required by statute.

   She has shown the home is sanitary and she successfully forced its sanitation inspection. She has passed the required criminal records check. The agency has failed to substantiate, verify, or establish its reports of abuse and neglect, and it is unclear if these ever were put in the central abuse registry at all.

   Petitioner has not been able to demonstrate approval of her home by the local fire department because HRS did not arrange such inspection and she has not passed a fingerprint check which has been legislatively mandated since this license application has been pending. However, she has demonstrated that the response to her house for the fire department and police department is approximately 10 minutes and that her house contains acceptable equipment in case of fire. She has attended all special training for CYF licensure as recommended by the Secretary of the Department of Health and Rehabilitative Services.

   
   

   Petitioner acknowledges that she may have been uncooperative in the past due to personal differences with the foster care counselor assigned her, but she has expressed an understanding of agency Rule 10M-6.05(2) requiring consistency in informing the foster care counselor of fluctuations in home population, of the need to limit the number of CYF clients to conform to that rule and of the need to eliminate any daycare clients. The agency has the authority to monitor any license issued and to discipline as necessary if Petitioner does not live up to the standards imposed by statute and rule.

   
   

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter of this cause pursuant to Section 120.57(1), Florida Statutes.

   
   

5. Petitioner's proposals assert that where the agency has failed to complete its procedure or improperly completes the licensing procedure in 45

   days past the time of the application, then a license mandatorily must issue. This position was not raised at formal hearing and Petitioner has cited no specific statutory or rule authority therefor. Section 120.60(2), Florida Statutes, provides in pertinent part that unless the time is shortened by agency rule,

   
   

   Every application for license shall be approved or denied within 90 days after receipt of the original application .

   Any application for license which is not approved or denied within the 90 day or shorter time period ... shall be deemed approved. [Emphasis supplied].

   
   

   Since there is no lesser period (i.e. 45 days) provided by rule, Section 120.60(2), Florida Statutes, is controlling. Respondent issued its denial within the 90 days specified. Petitioner's additional contention that because Respondent did not also ensure Health Department and Fire Department inspections, confirm the zoning classification of the home and interview Petitioner and her family, conduct a home study and obtain references, it is now required to automatically approve the application, is not supported in law.

   
   

6. As an applicant for a new license, Petitioner bears the initial burden of proof to establish that she meets the applicable statutory and rule requirements. The statute and rules to be applied to a new CYF license application are Section 409.175, Florida Statutes, and Rule 10M-6.05, Florida Administrative Code.

   
   

7. Except for the ministerial functions which only the agency can initiate (fire inspection and fingerprint check), Petitioner has clearly carried her initial affirmative burden to show CYF license eligibility within the statute and all of the rules which are applicable to new CYF license applications, and particularly those rules which were put in issue by the parties, Section 409.175, Florida Statutes, and Rules 10M-6.05(1)(c), (e), (j), (2)(g), (i), and (n). Other rules concerning alleged violations of the old DS license are not to be applied, although proof of violation of such rules may be peripherally instructive and insightful to predict how well Petitioner will comply with the Rule 10M-6.05 requirements if a CYF license is granted. Respondent has not argued, either at hearing or in its post-hearing proposals, the applicability of Rule 10M-6.05(2)(1) which provides in pertinent part, "The names of all foster parent applicants must be cleared through the Abuse Registry prior to the issuance of a license." However, Respondent's concerns about licensing may be distilled into three elements: the indicated reports, that Petitioner in the past accepted more children into her home than HRS personnel felt she was able to cope with due to the children's cumulative medical disabilities, and that HRS representatives anticipate a lack of cooperation by her with them in the future based on her past "track record." The indicated reports have not been substantiated, established, or verified. Anderson v. Department of Health and Rehabilitative Services, supra. Neither abuse nor medical neglect has been proved. Petitioner has now been made aware of the limitations on the number of children she may accept and that, absent a specific formal agreement with HRS pursuant to the rule, she may not combine daycare with CYF care. In the past, her daycare excess was more through inadvertence than lack of cooperation, and she has agreed to abide by the CYF restrictions now that they have been made known to her. CYF children will not present the cumulative medical disabilities the DS children did. Petitioner's previous lack of cooperation appears in large part to have arisen out of a personality

   conflict with a specific foster care counselor. This relationship is no longer in effect, and, in the event Petitioner does not cooperate, Respondent has recourse through rules providing for disciplinary sanctions, license revocation authority, and prosecution by the State Attorney.

   
   

8. In light of her 14 years of prior service and the circumstances of this case, Petitioner should be issued the CYF license.

RECOMMENDATION

Upon the foregoing Findings of Fact and Conclusions of Law, it is,

RECOMMENDED that Respondent grant Petitioner a CYF Special Home license provided she successfully passes the fire department inspection and fingerprint check.

DONE and RECOMMENDED this 16th day of February, 1987, at Tallahassee, Florida.

ELLA JANE P. DAVIS

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 16th day of February, 1987.

ENDNOTE

1/ The terms are used the same way in various portions of the applicable statute and rules.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-0230

The following rulings are made pursuant to Section 120.59(2), Florida Statutes, upon the parties' respective proposed findings of fact (FOF).

1. Covered in FOF 1.

2. Covered in FOF 1.

3. Covered in FOF 3 and 9.

4. Covered in FOF 4.

5. Covered in FOF 5.

6. Covered in FOF 1.

7a-g Accepted as covered in FOF 5; otherwise rejected as immaterial. Specifically, once HRS had made its decision to deny the application on the basis of prior experience and indicated abuse/neglect reports, it was deemed superfluous to pursue further interviews and ministerial safety checks. Petitioner was afforded a

point of entry for review as early as 10/21/86 clearly within the 90 days provided by Section 120.60(2), F.S. as discussed in the Conclusions of Law.

8a-c Covered in FOF 5-8; that which is not adopted is immaterial, subordinate and unnecessary to the facts as found.

9a-c Covered in FOF 6-9; that which is rejected is rejected in part as conclusionary and in part as not supported by the greater weight of the direct credible evidence admitted at hearing. See also conclusions of law.

10. Covered in FOF 8.

11-12a, b, c, d, Covered in FOF 9-11. Except as covered in FOF 9-11 the proposal is cumulative, redundant, subordinate, and unnecessary to the facts as found.

12e Covered in FOF 9-11. Except as covered, the proposal is cumulative and pure argument of counsel.

1. Accepted but not adopted, irrelevant and pure argument of counsel.

2. Covered in FOF 9. Except as covered in FOF 9 the proposed findings with regard to the complaint regarding E. C. are subordinate and unnecessary and the proposed findings with regard to alteration of items produced in discovery are not supported by the record as a whole.

3. Covered in FOF 10 and 12, otherwise immaterial.

4. Rejected as subordinate and unnecessary to the facts as found.

5. Rejected as irrelevant and not dispositive of any issue at bar.

6. Covered in FOF 9. Except as covered in FOF 9, the proposed findings are in part not supported by the record as a whole and are further speculative, conclusionary, and pure argument of counsel.

7. Rejected as irrelevant and not dispositive of any issue at bar except as covered in FOF 11.

8. Covered in FOF 9.

9. Rejected as irrelevant, conclusionary, not dispositive of any issue at bar and as constituting pure argument of counsel.

10. The proposal as stated in the first paragraph is rejected in part as not supported by the record as a whole and in part as immaterial. To the extent the subject matter of this proposal is addressed in the Recommended Order it will be found in FOF 9 and 10. The proposal in the second paragraph is covered in FOF

    3 and 9.

11. Covered in FOF 9; what is rejected is rejected as not supported by the record as a whole.

12. Rejected as subordinate and unnecessary; similar subject matter is addressed in FOF 10.

13. Rejected as cumulative in part (see FOF 2 and 9) and in part (specifically as to proposals concerning occurrences in the Maxwell and Capelli Homes) as irrelevant.

Respondent's Proposed Findings of Fact:

1. Covered in FOF 4-5.

2. Covered in FOF 3 & 5.

3. Covered in FOE 5.

4. Covered in FOF 6-7.

5a Rejected as not supported by the record as a whole. See FOF 9-11.

5b,c Accepted in substance but not adopted because it presents a selective picture of what actually appears from the record as a whole. See FOF 9-10.

5d,e Rejected as not supported by the record as a whole.

See FOF 9-10.

5f Rejected as covered in FOF 9.

5g Rejected as pure argument of counsel. Subject matter covered in FOF 9-10.

5h The sentence up to the word "and" is accepted and covered in FOF 2. The portion of the same sentence up to the first semicolon is rejected as it was insufficiently demonstrated on the record that Petitioner's sole or even prime motivation was financial. The proposal between the first two semi- colons is rejected as immaterial and subordinate to the facts as found; see FOF 9-11. The remainder of the proposal between the last two semicolons is rejected

as conclusionary and pure argument of counsel and to the extent any ultimate facts may be alleged therein the proposal is rejected because it is not supported by the greater weight of the evidence as whole.

5i Rejected as covered in FOF 9-10.

5j-l Rejected as covered in FOF 9. The proposals as stated are not supported by the greater weight of the evidence. The facts as found in the recommended order are based only upon the direct, credible, competent substantial evidence adduced at hearing and upon corroborated hearsay as permissible under s. 120.57(1). Respondent's proposals presume that simply because hearsay is repeated in enough reports of the agency it becomes corroborated; this is not so. By cross- examination of HRS witnesses and rebuttal witnesses of her own, Respondent has demonstrated the facts as found in the Recommended Order.

5m-t Rejected as not supported by the evidence as a whole as covered in FOF 9-10.

5u Rejected as not supported by the record as a whole. The record does show that on one occasion Petitioner was ordered by her doctor to have bed rest over a weekend. HRS accomplished this with respite care outside the home. HRS thereafter approved return of the children to Petitioner's home and care. Petitioner established by direct credible testimony that the

substitute caregiver had not complained as indicated in this proposed finding of fact. HRS was unsuccessful in presenting any complaints by anyone as set forth in this proposal except through reports or testimony encompassing unsubstantiated hearsay which will not support a finding of fact. That Petitioner expressed different opinions of her DS license situation to various social workers on different occasions and in

different circumstances is immaterial and not dispositive of any issue at bar.

5v Rejected as covered in FOF 10 and 11.

5w Rejected as not supported by the greater weight of the evidence. Petitioner has clearly demonstrated an excellent communication and rapport with parents of the severely disabled clients she previously served. See FOF 12. There has been no showing that Petitioner's communications with parents or visitors has been other than necessary for the quality of care of her clients.

5x Rejected. Respondent's proposal accurately relates the HRS witnesses' testimony concerning what they were told by R. P.'s father or what they read in a report about what R. P.'s father told another social worker but such testimony is hearsay and insufficient, without more, to support a finding of fact.

William Page, Secretary Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32301

Elizabeth Anne Goodale, Esquire 1432 Indian Rocks Road

Largo, Florida 33544

V. John Brook, Esquire

695 Central Avenue, Suite 213 St. Petersburg, Florida 33701

Docket for Case No: 86-000230

Orders for Case No: 86-000230