STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 90-2928

) BARBARA SUTTON GROUP HOME, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on August 16, 1990, at Lakeland, Florida.

APPEARANCES

For Petitioner: Edward Haman, Esquire

4000 West Martin Luther King Jr. Boulevard Tampa, Florida 33614

For Respondent: C. Nathaniel White, Esquire

Post Office Box 2624 Bartow, Florida 33830

STATEMENT OF THE ISSUES

Whether Respondent was wrongfully denied license renewal for a group home.

PRELIMINARY STATEMENT

Barbara Sutton's, Respondent herein, application for renewal of her license to operate a group home in Lakeland, Florida, was denied by the Department of Health and Rehabilitative Services' (DHRS), Petitioner herein, letter dated March 15, 1990. As grounds for denial, this letter noted " specific concerns include -- but are not limited to -- your failure to seek appropriate medical care for an injured client in your care, providing false information concerning consultation with a physician, and failure to carry out recommended and/or prescribed therapy."

At the expiration date of Respondent's license in 1989, Respondent's group home had been charged with neglecting clients at the home, and those charges were pending in DOAH Case No. 89-4478C. When Respondent inquired about renewing her' license, she was told the license would not be renewed while abuse or neglect charges were pending.

Following the hearing in DOAH Case No. 89-4478C, the hearing officer entered a Recommended Order finding Petitioner had failed to prove neglect. Respondent again inquired about license renewal and was advised no renewal would be issued until DHRS had entered a Final Order in DOAH Case No. 89-4478C.

When a Final Order was entered February 5, 1990 accepting the findings and conclusions of the hearing officer, Respondent reapplied for renewal and received the March 15, 1990 denial letter above referred to.

Upon receipt of this denial letter, Respondent requested an administrative hearing to challenge this decision, and these proceedings followed.

In April 1989, Petitioner removed all clients from Respondent's group home and put a moratorium on further admissions by Respondent.

At the hearing, Petitioner called 9 witnesses; Respondent called 13 witnesses, including Respondent; and 4 exhibits were offered into evidence. Objection to Exhibits 2 and 3 was sustained as hearsay uncorroborated by other admissible evidence.

Proposed findings have been submitted by the parties. Treatment accorded those proposed findings is shown in the Appendix attached hereto and made a part hereof.

FINDINGS OF FACT

1. Prior to April 1989, the Barbara Sutton Group Home was a group home facility licensed by the DHRS, Petitioner.

   
   

2. In April 1989, DHRS removed all clients from Respondent's facility and placed a moratorium on further admissions.

   
   

3. When Respondent's license came due for renewal, neglect charges were pending against Respondent, and Respondent was advised no renewal would be effected until the neglect charges were settled.

   
   

4. Following a Chapter 120 hearing on those charges, the hearing officer in DOAH Case No. 89-447C found the charges unfounded and recommended they be dismissed. DHRS entered a Final Order on February 5, 1990 expunging the confirmed report and reclassifying it as unfounded.

   
   

5. Thereafter Respondent again applied for renewal of license, and this application was denied. It is significant that grounds for denial of renewal of license include at least two of the grounds upon which the neglect charges were based and which were proven to be unfounded at the neglect hearing. No evidence was presented at this hearing on the charges of failure to seek medical care for an injured client and providing false information concerning consultation with a physician.

   
   

6. The other ground listed in the March 15, 1990 charging letter for denying the renewal of the license, viz., failure to carry out recommended and/or prescribed therapies was attempted to be proven only with hearsay evidence to which objection was sustained (Exhibits 2 and 3). These exhibits were offered into evidence by a DHRS employee witness who neither prepared the documents nor supervised their preparation. To the contrary, these documents were prepared by Winter Haven Physical Therapy and Rehabilitative Services, and no witness was produced to authenticate these documents. These documents are

   not "business records" of the activities of DHRS and do not constitute an exception to the hearsay rule, and thereby become admissible into evidence. Further, no admissible evidence was submitted to corroborate the hearsay contained in Exhibits 2 and 3, thereby allowing them into evidence pursuant to Section 120.58(1)(a), Florida Statutes.

   
   

7. The evidence presented in these proceedings involved other charges which were not contained in the charging letter, unless the phrase "but are not limited to" gives Petitioner wide latitude to bring up at heading charges of which Respondent was not made aware prior thereto

   
   

8. Absent specific allegations, it is often difficult to ascertain exactly what charges the evidence presented is intended to prove. With this caveat, it appears that the most serious allegations involve the treatment given to Adam B., a 16 year old cerebral palsy victim so inflicted since birth when half of his brain died. Adam requires total care in the activities of daily living. In addition to the frequent serious episodes endemic to cerebral palsy, Adam was formerly diagnosed as having diabetes insipitus.

   
   

9. In March 1989, Adam was admitted to Lakeland Regional Memorial Center with a high fever, 105 degrees Fahrenheit. He was transported from Barbara Sutton Group Home by paramedics at 2 a.m. on March 4, 1989. Upon arrival of the paramedics at the home, Adam was in severe respiratory distress, and the E.M.S. suctioned Adam and ended up intubating him with an endotracheal tube (Exhibit 1). Blood tests at the hospital revealed a severe electrolyte imbalance with sodium at the dangerous level of 184. When Adam was discharged from the hospital on March 8, 1989, he was sent home on oral antibiotics. He did not later return to the group home because DHRS had removed all DHRS sponsored clients from the home, presumably based largely on Adam's hospitalization.

   
   

10. The conclusion that Respondent was negligent in the treatment of Adam apparently stems from the fact that his temperature was 105 degrees Fahrenheit when the paramedics arrived. This leads to the assumption that inadequate supervision was involved; otherwise, the rising temperature would have been noted, and Adam would have been hospitalized sooner.

    
    

11. Both Adam's father and mother testified in these proceedings. They have taken care of Adam in their home for the major part of his life and have frequently noted that Adam can experience wide variations in temperature in a very short period as well as serious imbalances in his electrolytes. The only explanation for these rapid changes his parents have been able to glean from doctors treating Adam is that his condition is somehow related to the inactive left side of the brain which fails to call up defenses to these changes. They also testified that Adam's urinary output can increase dramatically without apparent reason, and in a short time he can become dehydrated. His diapers require changing up to 12 times per day.

    
    

12. Adam has been in other group homes, and his parents are firmly convinced that the best treatment he has been provided in any facility outside their home is in Barbara Sutton Group Home. They look forward to returning Adam to this group home when, and if, it is reopened. Before placing Adam at Respondent's home, Adam's parents inspected the facility, talked to Ms. Sutton, looked at the care given other children, demanded the right to visit the home at any time, and then decided to place Adam in this facility. As did all other witnesses, Adam's parents described the facility as very clean, well maintained,

    well staffed by people interested in taking care of severely handicapped children, and well set up to handle handicapped children. Respondent stipulated that the facility was neat, clean and well maintained.

    
    

13. Eric Olson, a Development Services Program Specialist at DHRS, has conducted annual surveys at the Sutton Group Home for the past four years. Ms. Sutton has corrected all minor deficiencies reported during the surveys of the home. At the June 1988 inspection, the home was found to be in 99 percent compliance, in 1987 it was found to be 91.5 percent in compliance, in 1986 it was found to be in 97 percent compliance, and in 1985 it was found to be in 92 percent compliance. These are high marks for a group home.

    
    

14. Following the 1989 hospitalization of Adam, Olson inquired further into the operation of the Sutton Home and found Respondent did not always keep doctor's appointments made for clients at the home; that she did not always promptly notify the contact person at Children's Medical Services (CMS), a portion of DHRS whose job is to provide medical care for children qualifying for such services, who need such information promptly to pay for the services; that she did not always promptly notify the appropriate party when emergency services were required for clients; that reports were received that clients at this home were not always receiving the physical therapy prescribed to be provided by attendants at the home; that there were some discrepancies in medication; and that prescribed feeding techniques were not always followed. Olson made the initial recommendation to deny license renewal to Respondent, although there are neither enough group homes available for qualified clients nor funds to provide for needed card.

    
    

15. Kendall Burnup is a teacher at Dora Sanders Learning Center, a part of the Polk County School System, which is a special school for children who are sufficiently handicapped they cannot be mainstreamed. He had difficulty feeding Rodney, a pupil of the school who resided at Barbara Sutton Group Home. Burnup sent several notes to Respondent inquiring about feeding Rodney and had an occupational therapist at the school prepare a feeding program for Rodney (Exhibit 4).

    
    

16. Rodney had been a resident of Respondent's group home for approximately five years and had never presented a particularly difficult feeding problem. However, Rodney liked his food warm and refused to eat it otherwise. When Burnup fed Rodney warm food, he found the feeding to be easier.

    
    

17. Respondent, as well as mothers of clients at the group home, testified that these handicapped children do not like changes and rebel at any attempt to change their routines, including feeding, to which they have become accustomed.

    
    

18. Faith Hennessee, a registered nurse assigned to Dora Sanders Learning Center, was made aware of Rodney's apparent weight loss, and she had some discussions with Respondent regarding Rodney's diet. She has no recollection that Respondent ever failed to follow her instructions regarding the clients. Ms. Hennessee did testify that she returned an empty prescribed medicine bottle for one of the clients of Respondent to refill, and Respondent returned the bottle with two medications (both pills or capsules) in the bottle. This violates statutes pertaining to dispensing medications. Respondent testified that Ms. Hennessee told her when she returned the empty prescription bottle that she was also low on the other medication which Respondent supplied in the returned bottle. Ms. Hennessee does not recall making such a request. Since the medications are easily identified from each other, no serious danger to the client was here involved.

19. The mother of Stevie Jo, a client at Respondent's home prior to April 1989, placed Stevie Jo in Respondent's home in 1984 when the home was first opened. Stevie Jo is fed with a gastrointestinal tube, is blind, mute, can't walk and needs assistance much the same as does a 2 to 4 months old infant. She takes medication for seizures, and as she gets older she needs arm braces to help control contractions. Stevie Jo was removed from Respondent's home in April 1989 when the moratorium was placed on the home, and her mother would very much like to return Stevie Jo to Respondent's home where Stevie Jo received more attention and better care than in other homes.

    
    

20. Connie Kalel is a registered nurse at (CMS) in Lakeland, makes doctor's appointments for children under CMS supervision and provides for certain medical supplies for these children. Ms. Kalel complained that Respondent was late picking up a purchase order for wrist braces for Stevie Jo that were ordered several months before finally being picked up. Respondent explained that part of this delay stemmed from an improper cast having been put on Stevie Jo's arm, which, when removed, caused injuries which, until healed, precluded use of these braces. Respondent further testified that the first time anyone had told her that she needed to notify CMS of all emergency medical treatment for her clients was at this hearing. Prior thereto she had believed she only needed to advise the DHRS case worker responsible for the child.

    
    

21. Wanda Gibson, DHRS Human Services Counselor III, was the case manager for Respondent home while it was operating and was supposed to visit the home monthly. Ms. Gibson testified that she visited the home monthly for a period of approximately one hour, arriving around 3 p.m., that she observed Respondent on one occasion feeding Rodney three spoonfuls of food in rapid succession without giving him time to swallow the first, and that the facility was understaffed. When asked by the hearing officer what the staffing requirements were for this group home, Ms. Gibson did not know. Respondent testified that Ms. Gibson did not visit the home every month, but often doubled up covering two months with one visit, that she remained no longer than 15 minutes at a visit, that she had never been at the home long enough to observe feeding, and that she avoided all close contact with the clients. Respondent's testimony is given more credence than that of Ms. Gibson.

    
    

22. Only one parent testified that she was not fully satisfied with the treatment received by her child while at Respondent's home. Sandra McClish's son Ricky was at Respondent's home some five years ago for a period of approximately four months. Ricky has cystic fibrosis and has always been underweight. Ricky has severe brain damage, is blind with sclerosis and cystic fibrosis. He needs a brace to sit up. Ms. McClish saw Ricky at school one day without his brace and noted he seemed to have lost weight. She never saw Ricky without his brace at Respondent's home. When she asked Respondent about the weight loss, Respondent told her Ricky was hard to feed. Shortly thereafter, Ricky was hospitalized for dehydration and abnormal glycerides. When released from the hospital, Ricky had a bed sore-type lesion, and he was put in another group home to have a gastrointestinal tube inserted. His mother had not seen a bed sore on Ricky before he was hospitalized and doesn't know if it originated in the group home or the hospital. Respondent contends Ricky was fine until it was time to give him medication before meals. The capsules would be opened and the contents mixed with apple sauce to get Ricky to swallow. He would chew the grains and break them which released something that burned his mouth. He would then not eat. Ricky was returned to Respondent's home for only a short period after the gastrointestinal tube was inserted before he was removed.

23. Deborah Mitchell, a LPN was sent by medical poll to work in Respondent's home for approximately 2 weeks in April 1989. She worked the 11

    p.m. to 7 a.m. shift and was present when the children were awakened, bathed, dressed and fed breakfast. She deemed the quality of care given the children as excellent, and Respondent knew everything about the children in the home.

    
    

24. Other parents testified to the excellent care their handicapped child received in Respondent's home in respite care (45 days per year) and for short periods for which the parents pay such as weekends, after school and two weeks vacation each year.

    
    

    CONCLUSIONS OF LAW

    
    

25. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

26. Section 393.0673, Florida Statutes, provides in pertinent part:

    
    

    1. The Department of Health and Rehabilitative Services may deny, revoke, or suspend a license ... for a violation of any provi-

       sion of s. 393.0655 or 393.067, or rules promulgated pursuant thereto.

       
       

27. Section 393.0655 establishes criteria for screening of caretakers at residential facilities. No issue was here raised that denial of this renewal was in any manner connected to the disqualification of any caretaker at the facility.

    
    

28. Section 393.067 provides generally for the licensure of residential facilities by establishing a system of provider qualifications, for periodic inspections of the facility, for the number and type of residents, for services to be provided, for financial capability of the licensee, for administration and management provisions for the facility, for safety and care of the residents and other provisions aimed at insuring quality care economically.

    
    

29. Rule 10F-6.003, Florida Administrative Code, provides in pertinent part that with respect to a residential facility:

    
    

    1. A license shall be revoked whenever an operator does not make his/her annual written application for license renewal.

    2. A license shall be revoked a any time, pursuant to Chapter 28-6, F.A.C., if the applicant fails to maintain applicable standards or to observe any limitation specified in the license.

    
    

30. Group home facility standards are contained in Rule 10F-6.010 which is broken down into 23 categories ranging from administration through personnel qualifications, feeding, training, medications and emergencies, to name a few. No specific violations of any of these standards have been alleged.

31. Section 120.60, Florida Statutes, provides in pertinent part:

    
    

    Each agency, upon issuing or denying a license, shall state with particularity the grounds or basis for the issuance or denial of the license, except where the issuance is a ministerial act.

    
    

32. The reissue of a license to a group home agency is not a ministerial function because the licensee must submit an application which, on its face, indicates compliance with Section 393.0655. Although no application form was presented at these proceedings, Section 393.067(3) requires the application for license to be made to DHRS on a form furnished by DHRS. Obviously, Respondent made such an application which, on its face, complied with statutory criteria, but was denied relicense by Petitioner. As noted above, Section 120.60 requires the grounds for denial of a license to be stated with particularity. Respondent's license was denied on three specific grounds -- none of which was proven in these proceedings. In fact, the first two grounds involved allegations which had been decided adverse to Petitioner in DOAH Case No. 89- 4478C, which was approved in toto in Final Order entered February 5, 1989, more than one month prior to the issuance of this letter of denial. No evidence was presented on those two grounds at the instant proceeding. This raises the specter of the award of attorney's fees pursuant to Section 120.57(1)(b)5. However, no other evidence was presented on this issue, and Respondent has recourse to Section 57.111.

    
    

33. On the charge of failure of Respondent to carry out recommended and/or prescribed therapies, the only evidence proffered was Exhibits 1 and 2, the objection to which was sustained. These are not "business records" to qualify as an exception to the hearsay rule. Section 90.803(6) is the evidence code hearsay exception for records of regularly conducted business activity. Section 90.803(6), provides in part:

    
    

    (a) A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinion, or diag- nosis, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity and it was the regular practice of that business activity to make such memorandum, report, record, or data

    compilation, all as shown by the testimony of the custodian or other qualified witness, unless the sources of information or other circumstances show lack of trustworthiness. The term "business" as used in this para- graph includes a business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit. (emphasis supplied).

34. Section 90.803 restated Section 92.36 which provided in part that:

    
    

    A record of an act, condition or event, includ- ing a record kept by means of electronic data processing, shall, insofar as relevant, be competent evidence if the custodian or other qualified witness testifies to its identity

    and the mode of its preparation, and if it was made in the regular course of business, at or near the time of the act, condition or event, and if, in the opinion of the court, the source of information, method and time of preparation were such as to justify its admission.

    
    

35. Here the witness tendering Exhibits 1 and, 2 was an employee of DHRS, the documents were prepared by Winter Haven Physical Therapy and Rehabilitative Services, and the witness could not testify to the identity and mode of preparation of the documents. In other words, he could not attest to the authenticity of these documents. This is a record prepared by an unidentified party which was received by, and later' extracted from, the files of DHRS. This is neither a business record of DHRS nor a public record for the purpose of qualifying as an exception to the hearsay rule.

    
    

36. No other specific reasons were given by Petitioner as grounds for denying the reissuance of a license to Respondent. Accordingly, all evidence admitted at this hearing was not relevant to the issue of Respondent's relicensing.

    
    

37. The essential elements of due process of law are notice and an opportunity to be heard and to defend in an orderly proceeding before a tribunal having jurisdiction of the cause. State ex rel. Munch v. Davis, 196 So.2d 491 (Fla. 1948). The charges in cases before boards or agencies reed not be stated with the technical nicety or formal exactness required of pleadings in the courts. In such proceedings, it is sufficient if the Respondent is informed with reasonable certainty of the nature and cause of the accusation against him, had reasonable opportunity to defend against attempted proof of such charges, and the proceedings are conducted in a fair and impartial manner, free from any just suspicion of prejudice, unfairness, fraud or oppression. Hadley v. Department of Administration, 411 So.2d 184 (Fla. 1982).

    
    

38. A finding of guilty of a charge not contained in the Administrative Complaint constitutes a denial of due process. Wray v. DPR, Board of Medicine, 435 So.2d 312 (Fla. 1st DCA 1983).

    
    

39. From the evidence presented, it appears that Respondent was aware (by deposing the witnesses or otherwise) of the evidence that would be presented by Petitioner and had the opportunity to rebut such evidence. This may comport with due process requirements, but does not conform to the requirement of Section 120.60(2) that the grounds for denial shall be stated with particularity.

    
    

40. If we assume, for the purpose of ruling on the evidence submitted, that this evidence was relevant, this evidence fails to show that the Respondent was negligent in the care of any of the patients regarding which testimony was presented. Further, the minor infractions such as failure to promptly notify

    specific people of emergencies at the home, of failure to promptly pick up splints for Stevie Jo, and mixing two medications in the same bottle, do not constitutes adequate grounds for denial of a license renewal.

    
    

41. From the foregoing, it is concluded that no evidence was presented to show that Respondent is not qualified for renewal of her license as a group home facility. Accordingly, it is,

RECOMMENDATION

That the license to operate a group home be issued to Barbara Sutton Hensley.

ENTERED this 30th day of August, 1990, in Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 30th day of August, 1990.

APPENDIX

Treatment accorded proposed findings submitted by Petitioner.

1 and 2. Accepted.

1. Rejected. Although Respondent missed some appointments, no "ongoing and consistent" pattern developed.

2. Accepted. However, see H.O. #

3. Rejected as irrelevant. Respondent had at least 4 renewals of her license since McClish was a client.

4. Last phrase of finding rejected.

7-13. Rejected as unsupported by credible evidence. Additionally, none of these deficiencies was contained in the charging letter thereby making these charges irrelevant.

Proposed findings submitted by Respondent are accepted. Those not included herein were deemed immaterial or unnecessary to the conclusions reached.

COPIES FURNISHED:

Edward Haman, Esquire Department of Health and Rehabilitative Services 4000 W. Martin Luther King, Jr., Boulevard

Tampa, FL 33614

C. Nathaniel White, Esquire Post Office Box 2624 Bartow, FL 33830

Sam Power Clerk

Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, FL 32399-0700

Linda Harris General Counsel

Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, FL 32399-0700

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES,

Petitioner,

CASE NO.: 90-2928

vs.

BARBARA SUTTON GROUP HOME,

Respondent.

/

FINAL ORDER

This cause came on before me for the purpose of issuing a final agency order. The Hearing Officer assigned by the Division of Administrative Hearings (DOAH) in the above- styled case submitted a Recommended Order to the Department of Health and Rehabilitative Services (HRS). A copy of that Recommended Order is attached hereto.

FINDINGS OF FACT

The department hereby adopts and incorporates by reference the findings of fact set forth in the Recommended Order.

CONCLUSIONS OF LAW

The department hereby adopts and incorporates by reference the conclusions of law set forth in the Recommended Order except where inconsistent with the following ruling on the exceptions:

The Hearing Officer's conclusion that the department's denial letter did not conform to the requirement of Section 120.60(2), Florida Statutes that the grounds for denial

be stated with particularity is rejected. The grounds stated in the denial letter, when considered in light of the liberal discovery rights and the right to file a motion for a more definite statement, gave adequate notice.

It is noted that the issue of the sufficiency of the denial notice was not raised by respondent and the Hearing Officer concluded that respondent was not prejudiced.

Based upon the foregoing, it is

ADJUDGED, that respondent's application for license renewal be APPROVED. DONE and ORDERED this 17th day of October 1990, in Tallahassee, Florida.

Gregory L. Coler Secretary

Department of Health and Rehabilitative Services

Deputy Secretary for Programs

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW WHICH SHALL-- BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF HRS, AND A SECOND COPY, ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED

Copies furnished to:

Paula Kandel, Esquire Office of Licensure 7827 North Dale Mabry Tampa, FL 33614

C. Nathaniel White, Esquire Post Office Box 2624 Bartow, FL 33830

K. N. Ayers Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing was sent to the above-named people by U.S. Mail this 18 day of October 1990.

R. S. Power, Agency Clerk Assistant General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407

Tallahassee, Florida 32399-0700 904/488-2381

Docket for Case No: 90-002928

Orders for Case No: 90-002928