STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
STATE OF FLORIDA, DEPARTMENT OF ) HEALTH AND REHABILITATIVE SERVICES, )
)
Petitioner, )
vs. ) CASE NO. 95-3741
)
JEANETTE T. LINTON, )
)
Respondent. )
)
RECOMMENDED ORDER
Notice was provided and on October 25, 1995 and January 16, 1996, a formal hearing was held in this case. Authority for conducting the hearing is set forth in Section 120.57(1), Florida Statutes. The hearing location was Ocala, Florida. The hearing officer was Charles C. Adams.
APPEARANCES
For Petitioner: Ralph J. McMurphy, Esquire
District 13 Legal Office
1601 West Gulf-Atlantic Highway Wildwood, Florida 34785
For Respondent: Fredrick E. Landt, III, Esquire
Landt, Wiechens, Trow and LaPeer Post Office Box 2045
Ocala, Florida 34478-2045 STATEMENT OF ISSUES
Is Respondent entitled to renew her license to operate a group home for developmentally disabled children?
PRELIMINARY STATEMENT
On June 29, 1995, Petitioner notified Respondent that her license for the group home would not be renewed. The basis for license denial concerned alleged violations of Sections 393.0655 and 393.067, Florida Statutes and associated rules. More particularly Petitioner alleged that Respondent had allowed her husband to have access to the children living in the group home without submitting the husband's fingerprints and other information necessary to check his background. In addition it was alleged that the Respondent had employed Michael Ivey without complying with requirements for background screening for new employees.
In turn Petitioner received a request from Respondent seeking a formal hearing to contest the allegations. That request for hearing was timely filed.
Subsequently the case was referred to the Division of Administrative Hearings on July 26, 1995, for conduct of a formal hearing. The hearing was held on the aforementioned dates.
At hearing Petitioner presented Pat Joyner, Hilda Spotts and Carole Perez as witnesses. Petitioner's Exhibits 1 and 2 were admitted. Respondent testified and presented the witnesses Rachel Wimberly, Gary Hause, Kathy Tuggerson, Brenda Wilson and Tara Donley. Respondent's Exhibits 1 through 8 were admitted.
The parties stipulated that the basis for not renewing the license was unrelated to issues of the quality of care received by the clients in the group home.
Official recognition was made of Chapter 10F-6, Florida Administrative Code.
The parties timely submitted proposed recommended orders. The fact findings in those proposals have been considered and are commented on in an appendix to the recommended order.
FINDINGS OF FACT
In April, 1993, Respondent took over operation of a residential facility known as the Linton Group Home. From that date until May 31, 1995, Respondent and her staff cared for developmentally disabled children in that facility on a permanent basis.
The facility was located in Marion County, Florida.
The facility operated in accordance with Chapter 393, Florida Statutes and in Chapter 10F-6, Florida Administrative Code.
Historically, Respondent had assisted her mother in running the group home in the years 1987 and 1988 on a part-time basis. Respondent's involvement with the group home became permanent in 1989.
The group home was opened by Respondent's mother in 1985. Respondent began operating the group home when her mother died. Respondent and two or three employees routinely worked at the group home.
Respondent's principle income in the time period at issue was derived from the operation of the group home facility.
Following a facility inspection by Petitioner's employee conducted on May 8, 1995, to consider license renewal, the group home was granted a conditional license for the period June 1, 1995 through June 30, 1995. The license was not renewed beyond June 30 based upon the allegations previously described.
The decision not to renew the facility license for the annual period was made on June 29, 1995 and notice was provided to Respondent.
As of June 30, 1995, seven boys were in residence in the group home ages 13 to 18, with varying levels of disability concerning their level of function both physically and mentally. The clients residing in the facility required and had been given constant supervision. However, they were not a threat to run away from the home.
At relevant times, in the event that a client was home from school someone was available to supervise the client.
At relevant times Respondent's personal residence was one and a half miles from the group home. Respondent lived there with her children and husband, Willie Smith. The children were not those of Respondent and Mr. Smith.
When Respondent took over ownership and operation of the group home she and other existing employees at the facility had been qualified to provide direct services to the clients through a background screening process.
To successfully complete the background screening a prospective direct service provider must submit a fingerprint card, and affidavit on good moral character, undergo screening by local law enforcement, the Florida Department of Law Enforcement, and the FBI through use of the fingerprint card and prior to October 1, 1995 scrutiny by the Petitioner concerning the State child abuse registry.
At relevant times Respondent understood that she was responsible for securing all the necessary information to do a background screening. She further understood that she had seven days from the time at which a person was employed at the group home to submit the background screening information for assessment. For a time she did not realize that the operator was responsible for paying a fee for processing the fingerprint card. When the May 8, 1995 inspection was made Respondent became aware that a fee was assessed for that process.
At relevant times Respondent was aware that appropriate background screening was necessary to maintain the group home license to operate the facility in Florida. Respondent understood that if background screening information was not submitted that an existing license to operate the facility could be revoked or the license could be denied upon the annual request for renewal.
In relevant times to the proceeding Hilda Spotts worked in the Petitioner's Developmental Services Program Office. That office serves developmentally disabled children ages 3 to adult and is involved with group homes in which those children reside. Ms. Spotts was involved with the licensure of group homes in District 13, to include Respondent's group home.
In June, 1994, Respondent called Ms. Spotts to inform Ms. Spotts that Respondent had married Mr. Smith. In that conversation Ms. Spotts asked Respondent for information to perform a background assessment on the husband to include a fingerprint card and a completed HRS Form 1651 which is associated with the screening process.
Ms. Spotts did not receive the information to perform the background screening in 1994. Instead, there was a second conversation in which Respondent told Ms. Spotts that the husband would not be involved in the daily activities of the group home as an employee of the home. On that occasion Ms. Spotts gave a packet to the Respondent that would be needed to perform the background
assessment. However, Ms. Spotts told the Respondent that Ms. Spotts would check with another employee of Petitioner to see if the husband needed to complete those forms. The conversation was concluded on the basis that Ms. Spotts would inform the Respondent concerning the necessity for Mr. Smith to undergo background screening.
Within the first six months of the marriage between Respondent and Mr. Smith, the husband did not work at the group home. His employment began before the May 8, 1995 survey at which the Respondent stated that the husband was doing lawn work and maintenance at the group home. At that time Respondent held to the opinion that the situation with her husband was no different than other maintenance people who worked at the group home and who were not required to have background screening conducted.
Later Ms. Spotts called the Respondent to tell her that the husband did not need screening but Ms. Spotts reminded the Respondent that the husband needed to be listed for purposes of the annual license review. The next annual review beyond that point in time was performed on May 8, 1995.
Ms. Spotts had made the determination that the husband did not need screening at that time based upon her analysis and conversations with personnel at Petitioner's District 3 office in Gainesville, Florida.
Ms. Spotts had further stated that if the husband began working in the home he would need to be screened.
Respondent added Mr. Smith to the list of employee names on Form 1651 in the annual renewal application dated April 20, 1995 and signed by Respondent. This was consistent with the request by Ms. Spotts that Respondent report Mr. Smith's name on the annual renewal request.
Beyond those persons who were working at the group home when Respondent became the owner/operator, Respondent submitted three additional names for background screening. Among the persons who were screened was Brenda Wilson whose screening information was submitted to Pat Joyner an employee of Petitioner at District 3 who is responsible for background screening compliance in that district and District 13. Ms. Wilson was qualified and there exists no dispute concerning her background.
Ms. Joyner performs background screens based upon the availability of the person's name, date of birth, social security number and fingerprints.
Another employee for whom Respondent submitted background screening information was Sam Graham. This information was sent to Ms. Spotts. Mr. Graham worked for only one week at the facility. No response was received concerning his background screening.
Before information was submitted for background screening on Mr. Graham Respondent was told by Ms. Spotts that the Petitioner's Districts had been separated. That referred to Districts 3 and 13.
In fact in approximately the spring of 1994 five counties were separated from District 3 and placed within District 13. Marion County was among those counties.
After the District separation, Ms. Spotts told Respondent that in the future that the Linton Group Home would not have any dealings with District 3
and that Respondent should deal with District 13. At that time Ms. Spotts did not tell the Respondent where to send screening requests. Respondent assumed that the screening requests should be forwarded through Ms. Spotts in that Ms. Spotts, had provided Respondent with forms needed to perform the background screening.
Another employee for whom information on background screening was submitted was Michael Ivey. The information for Michael Ivey was sent to District 13. Before that information was sent Respondent did not call Ms. Spotts to ask where to send the information. Respondent again operated on the assumption that the Linton Group Home was no longer under the regulatory auspices of District 3 in Gainesville as Ms. Spotts had indicated. Therefore Respondent thought that the information for Mr. Ivey should be sent to Ms. Spotts in Belleview, Florida, where Ms. Spotts had her office. Ms. Spotts has no record of receiving the background screening information on Mr. Ivey, nor does the Petitioner.
Prior to the submission in the Ivey case requests for background screening had been sent to the District 3 office in Gainesville, Florida, responsible for background screening.
Mr. Ivey worked at the Linton Group Home as a direct service provider from late December, 1994 until mid May, 1995.
The record of submission of materials to perform the background screening on Mr. Ivey are as reflected in the files maintained by the group home and examined by Ms. Spotts in the May 8, 1995 inspection for license renewal.
In that file there is a copy of a document referred to as a law enforcement check which establishes that Mr. Ivey's record was cleared by the Alachua County Sheriff's Office.
Mr. Ivey had also executed an affidavit contained in his personnel file at the group home related to his good moral character.
In the group home the files is a copy of the Form 1651 shows that Michael Ivey signed as a applicant for the background screening check and included his name, date of birth and social security number together with his present address.
The second part of Form 1651 that is "to be completed by employer, HRS representative or facility requesting background check" and characterizes the nature of the employment was not executed nor signed. Moreover, the requestors name, telephone number, street address, county in which the requester is located and the date upon which the applicant had been employed was not executed.
There are occasions in which Petitioner's employees and counselors submit requests for background screens as opposed to that information being requested by the employer.
However, it was necessary for Respondent to execute the Ivey documents as the requesting employer in that no prior arrangement had been made to have Ms. Spotts or some other employee for the Petitioner execute the form as a requesting entity. Although it may have been appropriate to assume that the proper place to transmit the request for background screening for Mr. Ivey was through Ms. Spotts, it would be inappropriate to assume that Ms. Spotts would
understand or be expected to complete Form 1651 to include information as the requestor for background screening.
The practice of not executing Part II to Form 1651 which calls for the employer or an HRS representative or the facility to request the background screening check and sign that request was a practice that Respondent had learned from her mother who formerly operated the Linton Group Home. That practice was carried forward in the submission of the Ivey request for background screening. Respondent did not believe that she needed to indicate that she was requesting the background screening for Mr. Ivey by indicating that Respondent was the employer.
Notwithstanding the fact that Part II to Form 1651 was not routinely executed, it was the custom by the Linton Group Home to send other information with the request for background screening to indicate that the screening request related to employment with the Linton Group Home. Related to the request for background screening Respondent acknowledges that the expectation was that information would be returned from Petitioner indicating whether the employee had cleared screening.
Within the group home files inspected on May 8, 1995, was found a copy of Mr. Ivey's fingerprints.
The law enforcement check made by Alachua County bore an address for Petitioner in Wildwood, Florida. The fingerprint card bore an address for Petitioner in Gainesville, Florida. Both addresses were affixed to forms provided by Petitioner.
Although information for Mr. Ivey's background screening had Petitioner's address at Wildwood, Florida, and Gainesville, Florida, on the forms provided by the Petitioner, Respondent recognized that the information for background screening on Mr. Ivey was to be sent to one location. She chose to send it to Ms. Spotts.
Respondent was aware that compliance information concerning the background screening request was customarily received from the background agencies notifying the Respondent whether an employee had a "cleared" background. Nonetheless, Respondent did not receive information concerning clearance for Mr. Ivey beyond the clearance by the Alachua County Sheriff's Office which was received on December 7, 1994, the same date that the law enforcement check form provided to that department was signed by Mr. Ivey.
In the May 8, 1995 inspection the information that was found concerning background screening for Mr. Ivey did not indicate that he had been cleared by appropriate authorities by placing a stamp on all pertinent requests with the word "clear". The exception being the return from Alachua County Sheriff's Office.
When Ms. Spotts conducted the May 1995 inspection at the group home, she asked Respondent about the person or persons who was responsible for conducting repair work at the home. Respondent answered that her husband performed those duties. Respondent indicated that her husband worked both inside and outside the group home, to which Ms. Spotts responded that the husband needed to be screened during this relicensure.
Respondent told Ms. Spotts that the husband cut grass at the group home.
Respondent told Ms. Spotts that Respondent's husband was repairing walls and halls inside the house.
In discussion concerning the need to do a background check for the husband the Respondent told Ms. Spotts that the husband did work at the home when the children were not there. In response Ms. Spotts told the Respondent that children might come back from school while the husband was there. Following this conversation about the need to have the husband checked for his background Ms. Spotts was persuaded that the Respondent had agreed to those arrangements.
Those remarks were followed by correspondence dated May 16, 1995, in which Ms. Spotts informed Respondent that the Respondent needed to have a complete background screening check performed on the husband. With this correspondence Ms. Spotts enclosed a local law enforcement check form and advised the Respondent to sign the background check form and have her husband sign and return the executed information within ten days with an appropriate fee of $32.00 for processing the fingerprint card. The correspondence reminded the Respondent that the issue of background screening for the husband was important and needed prompt attention. Respondent received the correspondence.
Respondent did not send Ms. Spotts the background screening information as requested.
Ms. Spotts had in mind promptly processing the information on the husband to facilitate granting the Respondent a 90-day license pending the processing of information about the husband's background.
When Ms. Spotts conducted her inspection Mr. Ivey was present on that day. After Ms. Spotts had examined the information in the personnel file for Mr. Ivey that has been described she asked the Respondent about Mr. Ivey's employment status. Respondent indicated that Mr. Ivey had been employed since January, 1995.
Ms. Spotts noted that there was no abuse registry clearance information or local information other than Alachua County Sheriff's Office information or FBI information concerning clearance of Mr. Ivey available in the records at the group home.
The group home is expected to maintain clearance information. Petitioner does not maintain clearance information concerning group home employees.
In response to Ms. Spotts' questions about Mr. Ivey's status Respondent told Ms. Spotts that Respondent had sent the clearance request forms to Ms. Spotts.
The information sent by Respondent to Ms. Spotts when seeking background screening for Mr. Ivey included an application form provided by HRS, an affidavit of good moral character, a Sheriff's statement, a fingerprint card, HRS Form 1651 and information concerning rules of the Linton Group Home.
On May 8, 1995, when Ms. Spotts informed Respondent that the information related to Michael Ivey's background screening was incomplete this was the first time that Respondent realized the deficiency.
Ms. Spotts' view is that information concerning background screening and clearance for employees in a group home is sent to Ms. Joyner in District 3, whereas information concerning the owner/operator clearance goes to Ms. Spotts at District 13. It is not clear that Respondent understood this distinction.
It is not clear whether the Ms. Spotts eventual instruction to Respondent to send background information to screen employees to Ms. Joyner occurred before or after information was sent to Ms. Spotts related to screening for Mr. Ivey.
Notwithstanding the special disposition of the background screening for the husband which was requested in May, 1995, to be processed through Ms. Spotts to accommodate the issuance of a 90-day license to the Respondent, earlier in 1995 Ms. Spotts had told the Respondent that the background screening for employees at the group home should be processed through Ms. Joyner. Ms. Spotts was not sure what the Respondent's understanding of the appropriate place to send background screening information for employees prior to this 1995 conversation.
Not finding sufficient information concerning Mr. Ivey, Ms. Spotts asked the Respondent to re-submit the request for clearance for that employee. As with the information pertaining to the husband, Respondent was instructed to send the information to Ms. Spotts to accommodate the issuance of a 90-day license pending the processing of information about Mr. Ivey's background.
Respondent did not re-submit information for background screening for Mr. Ivey.
Ms. Spotts provided Respondent with necessary forms to submit for background screening for employees.
At the end of May, 1995, Ms. Spotts called Respondent to inquire concerning the submission of background screening information for the husband and Mr. Ivey. Respondent told Ms. Spotts that the husband had gone to Nevada around May 19, 1995, and that Mr. Ivey had quit on that date.
During this conversation at the end of May, Respondent told Ms. Spotts that Respondent was not sure when the husband would return from Nevada.
In fact, Respondent knew that her husband was in jail based upon the domestic violence complaint that Respondent had placed against her husband.
In this conversation Respondent did not wish to talk with Ms. Spotts because Respondent had visitors in her home. She did not tell Ms. Spotts about the husband's incarceration in this conversation because she did not want the people who were visiting and standing in the room where she was on the phone to hear that her husband was in jail.
In the conversation in late May, 1995, Ms. Spotts told Respondent that Respondent had 30 days to "rectify the problem" or loose the license for the group home. This is taken to mean obtaining background information for the husband and Mr. Ivey.
In a subsequent conversation around June 7, 1995, the Respondent told Ms. Spotts that the husband had been in jail and was no longer living in the family home. Respondent also told Ms. Spotts that the Respondent was involved with paying for a motel in Ocala, Florida, for the husband's residence.
In this conversation, Respondent informed Ms. Spotts that her husband had been in jail because of a domestic dispute. Respondent also told Ms. Spotts that she did not know when she could get the necessary information from the husband to process the background screening requested by Ms. Spotts.
The problem which Respondent explained to Ms. Spotts concerning the background screening for the husband was the inability to get a copy of the husband's fingerprints.
Respondent remarked in that conversation that the husband had been doing a little work around the house and working in the yard. Respondent also remarked that she did not think that it was necessary to have background screening but she would have it done when her husband was released from jail. Respondent made no mention concerning the possibility that her husband would return to work at the group home.
The husband was released from incarceration on June 8, 1995 and returned to jail on June 13, 1995 and was released again on August 25, 1995.
In the June 7, 1995 conversation, Respondent asked if Elsa Alvarez from the Petitioner agency had contacted Ms. Spotts about the pending investigation of Respondent and her children associated with the domestic violence case. In the conversation the Respondent told Ms. Spotts that the Respondent had a restraining order against her husband but that the restraining order did not pertain to the husband and his ability to access the group home. Ms. Spotts suggested that the restraining order be modified to place the additional prohibition on the husband. Respondent indicated that she would pursue this suggestion with her lawyer. The restraining order was never modified to prohibit the husband from having access to the group home.
Once Ms. Spotts found out that the Respondent had acted to restrain or enjoin the husband from acts directed to the Respondent she asked that a copy of the injunction be posted at the group home. Respondent complied with that request.
In addition to placing the May 31, 1995 restraining order on a bulletin board at the group home, Respondent told the staff members that her husband was not to "come around".
Given the pendency of the background screening for the husband, a conditional license was issued to the group home effective June 1, 1995, with a 30-day license period. The basis for this decision was premised upon Ms. Spotts' belief that the husband would return from his trip to Nevada and be employed at the group home.
On June 5, 1995, Ms. Spotts sent Respondent correspondence indicating that the license for the group had been renewed for the 30-day period pending completion of the background information on Respondent's husband. That correspondence indicated that a meeting would be held with the Respondent on June 13, 1995, to discuss the future licensing of the group home beyond the expiration of the conditional license. Respondent received this correspondence. The correspondence was sent before Ms. Spotts became aware that Respondent's husband had been placed in jail.
Ms. Spotts continued to insist on a background check on Mr. Smith because she was persuaded by the June 7, 1995 conversation with the Respondent that the Respondent and the husband would reconcile their differences.
Throughout the licensing process Ms. Spotts is without knowledge concerning the husband staying in the group home or serving or supervising the clients at that home.
Ms. Spotts is not aware of any complaints about Mr. Ivey while he served as a provider at the group home.
Respondent's husband never stayed at the group home or had any direct contact with the residents clients. In addition to the work previously described, the work that he did at the group home included changing air- conditioning vents, and light bulbs and one plumbing repair. The husband also moved a bed at the group home while the Respondent was in attendance.
On June 13, 1995, Ms. Spotts was informed that the Respondent was getting a dissolution of the marriage to Mr. Smith. In that conversation Respondent told Ms. Spotts that the Respondent did not want the husband around her daughters in their family home.
In that connection, the husband's background had been checked in association with the domestic violence situation in the Respondent's home, during which it was discovered that the husband was on the child abuse registry for sexual abuse. Before that time Respondent was unaware that her husband had been named in the abuse registry. That discovery contributed to the decision by the Respondent to seek dissolution of their marriage.
Ms. Spotts in conjunction with Carole Perez, Program Administrator for Developmental Services at District 13, decided to not hold the June 13, 1995 meeting to discuss further licensure in view of problems perceived with the background screening related to Mr. Ivey and Respondent's husband, having in mind the high level of dependency by the clients that were served by the group home, some of whom were unable to communicate. In their opinion those circumstances demanded providers who met all necessary requirements to include background screening.
In determining to deny license renewal Ms. Spotts and her supervisor Carol Perez were concerned about Respondent's honesty in cooperating with Petitioner in having a background screen performed on the husband, and whether the cooperation was not forthcoming as a means by Respondent to avoid the possibility that the husband would not be cleared and the possibility that Respondent's husband would have continuing contact with the group home.
The Petitioner in the person of Ms. Spotts and Ms. Perez decided to cancel the June 13, 1995 meeting to consider license renewal after consultation with representatives of the children and families program who were conducting an investigation about the group home. Respondent was notified of the cancellation.
The children were removed from the home and placed in other licensed facilities or returned to their respective homes on June 20, 1995.
At hearing Respondent admitted that there was a possibility that the husband would have returned to her personal home following his incarceration. That possibility ended when the Respondent learned for the first time that her
husband was a confirmed child abuser as recognized by the child abuse registry in Florida. This knowledge came about based upon an investigation into the domestic violence situation that has been described.
Respondent's husband had been incarcerated based upon the alleged domestic violence against Respondent. That circumstances arose in May, 1995, before Respondent's husband was served with an injunction for protection. The service was made on May 22, 1995.
On May 31, 1995, an injunction order for protection was entered in the Circuit Court, Fifth Judicial Circuit in and for Marion County, Florida. In operative terms the injunction enjoined and restrained the husband from threatening, assaulting, harassing or otherwise physically or mentally abusing the Petitioner. The order was not intended to enjoin the Respondent's husband from contact with her. The order describes that those parties (husband and wife) could have peaceful, non-threatening, nonviolent contact. The court had entered a preliminary injunction on May 20, 1995, as modified by the May 31, 1995 order.
On June 19, 1995, Respondent petitioned for dissolution of marriage from Mr. Smith. On August 14, 1995, the final judgement of dissolution was entered.
The final order dissolving the marriage kept in place the injunction entered on May 31, 1995, and awarded exclusive possession of the personal residence to Respondent and enjoined her former husband from coming to that premises.
Respondent assumed that the necessity to obtain background information ended when the Respondent made the decision to seek dissolution of the marriage.
At present Respondent does not have the Linton Group Home in her control.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this proceeding in accordance with Section 120.57(1), Florida Statutes.
Petitioner bears the burden to establish the basis for denying the license associated with alleged violations of allowing Respondent's husband to have access to the children in the group home without submitting fingerprints and other required information for background screening and that Respondent employed Mr. Ivey without complying with background screening requirements for that new employee. See Florida Department of Transportation v. J.W.C. Co. Inc., 396 So.2d 778 (Fla. 1DCA 1981).
Section 393.0655(1), Florida Statutes, makes it incumbent upon Petitioner to require employment screening in accordance with Chapter 435, Florida Statutes, for direct service providers who are unrelated to their clients. This requirement pertains to group homes such as the Linton Group Home.
Section 393.063(14), Florida Statutes, defines "direct service provider" as:
. . . a person 18 years of age or older who has direct contact with individuals with developmental disabilities and is un-
related to the individuals with developmental disabilities.
Rule 10-20.002(6), Florida Administrative Code, defines direct contact by the service provider as:
Direct contact means the performance of
a face-to-face client service in which direct responsibility for a client's health, welfare, or other benefit is involved. Direct contact excludes personnel specified by the Department rule, policy, or procedure, whose access to clients, or being in their physical presence is incidental to other duties or activities and not necessary for them to perform their assigned responsibilities. . . .
Section 393.0655(3), Florida Statutes, makes the Respondent responsible for paying the cost of processing fingerprints and the state criminal records checks required for Mr. Ivey and her husband in the event that they are found to be direct service providers to the clients at the group home. In the absence of payment by the employee or individual who is being screened, in this case there was no arrangement for Mr. Ivey or the husband to pay for the screening, any required background screening must have been paid for by the Respondent.
Rule 10-20.005(2)(b), Florida Administrative Code, provides that:
Unless specifically provided otherwise, all fingerprint cards submitted to the Department shall be accompanied by a check or money order payable to the Department to cover FBI and FDLE processing costs.
Section 393.0655(4)(a), Florida Statutes, instructs Petitioner to deny a license to the group home operator for failure to comply with the screening requirements set forth in Section 393.0655, Florida Statutes.
In addition to the opportunity to deny renewal of Respondent's license to operate the group home, Section 393.0655(4)(a), Florida Statutes, allows Petitioner to pursue other remedies in accordance with Sections 393.0673, 393.0675 and 393.0678 or to act in lieu of the denial of the renewal through imposition of remedies set forth in the aforementioned sections.
Section 393.0655(4)(b), Florida Statutes, makes it incumbent upon the Department when it has reasonable cause to believe the grounds for denial or termination of employment for direct service providers based upon results of employment screening, shall notify the employer in writing and the direct service provider affected giving reasons for the noncompliance with the standards for screening.
Section 393.0655(4)(d), Florida Statutes, creates an automatic denial of a license to operate a group home if Respondent refuses to dismiss a direct
service provider who has been found to be not in compliance with the requirements for background screening.
Section 393.0657(1), Florida Statutes, calls upon the Petitioner through its licensing authority to establish a system of provider qualifications and for the monitoring of residential facilities such as Respondent's group home.
Section 393.0657(5), Florida Statutes, allows for the issuance of a license to a group home if all the screening materials have been timely submitted. The license may not be renewed if any of the direct service providers have failed the screening required by Section 393.0655, Florida Statutes.
Section 393.067(5)(a)1, Florida Statutes, requires that a group home when applying for license renewal to submit Petitioner a list of direct service providers who worked on a continuous basis at the facility since submitting fingerprints to the Department, distinguishing between those direct service providers for whom written assurance of compliance with screening have been provided by the Petitioner and those who are awaiting the results of the required fingerprint check.
Rule 10F-6.010(5)(b), Florida Administrative Code, makes it incumbent upon Respondent to maintain written evidence of the qualifications of the direct care staff at the group home. This would include evidence that the direct service providers have passed the background screening contemplated by Section 393.0655, Florida Statutes.
Michael Ivey was a direct service provider who was required to undergo screening before working at the group home.
Respondent was responsible for complying with the requirement to have Mr. Ivey screened. This included the necessity to make certain that Mr. Ivey had cleared background screening. Respondent made no attempt to assure herself that Mr. Ivey had been cleared between the time of his employment in December, 1994 and the discovery that his background screening had not been cleared when the inspection was performed on May 8, 1995. For this reason the Respondent is subject to the denial of the license to operate the group home and/or subject to the imposition of remedies provided in Sections 393.0673, 393.0675 or 393.0678, Florida Statutes. Under the circumstances the appropriate remedy would be in accordance with Section 393.0673, Florida Statutes, through imposition of a fine in the amount of $750.00.
Mr. Smith was not a direct service provider in that he was not directly responsible for a client's health, welfare or other benefit. The work which he did at the group home does not coincide with being directly responsible for the client's health, welfare or other benefit. He was responsible for indirectly contributing to those factors. Consequently, it was not necessary for Mr. Smith to undergo background screening.
Assuming that there was a necessity for the husband to undergo background screening following the inspection on May 8, 1995, that necessity ended when the relationship between Respondent and Mr. Smith no longer existed. Respondent should not be punished for the time that transpired between the notification that she should obtain background screening for Mr. Smith and the end of the relationship.
Upon consideration of the facts found and the conclusions of law reached, it is,
RECOMMENDED:
That a Final Order be entered which grants Respondent permission to renew the group home license upon the payment of a $750.00 fine.
DONE and ENTERED this 14th day of February, 1996, in Tallahassee, Florida.
CHARLES C. ADAMS, 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 14th day of February, 1996.
APPENDIX CASE NO. 95-3741
The following discussion is given concerning the proposed findings of fact by the parties:
Petitioner's Facts:
Paragraph 1 is acknowledged in the preliminary statement to the recommend order.
Paragraph 2 is subordinate to facts found.
Paragraph 3 is subordinate to facts found with the exception of the sentence pertaining to the affidavit of good moral character. The affidavit was available.
Paragraphs 4 through the first two sentences in Paragraph 16 are
subordinate to facts found. The last sentence in Paragraph 16 is not necessary to the resolution of the dispute.
Paragraphs 17 through 23 are subordinate to facts found. Respondent's Facts:
Paragraphs 1 through 9 are subordinate to facts found. Paragraph 10 is not necessary to the resolution of the dispute. Paragraphs 11 through 25 are subordinate to facts found.
COPIES FURNISHED:
Ralph J. McMurphy, Esquire HRS District 13 Legal Office
1601 West Gulf-Atlantic Highway Wildwood, FL 34785
Frederick E. Landt, III, Esquire
445 NE 8th Avenue Post Office Box 2045 Ocala, FL 34478
Sandy Coulter, Acting Agency Clerk Department of Health and
Rehabilitative Services 1323 Winewood Boulevard
Tallahassee, FL 32399-0700
Kim Tucker, General Counsel Department of Health and
Rehabilitative Services 1323 Winewood Boulevard
Tallahassee, FL 32399-0700
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
| Issue Date | Proceedings |
|---|---|
| Jul. 11, 1996 | Final Order filed. |
| May 07, 1996 | Letter to Hearing Officer from F. Landt Re: Final Order filed. |
| Feb. 14, 1996 | Recommended Order sent out. CASE CLOSED. Hearing held 10/25/95 & 01/16/96. |
| Jan. 31, 1996 | (Frederick E. Landt, III) Page 10 of Proposed Recommended Order w/cover sheet filed. |
| Jan. 26, 1996 | Petitioner's Proposed Recommended Order filed. |
| Jan. 26, 1996 | (Respondent) Proposed Recommended Order filed. |
| Jan. 16, 1996 | CASE STATUS: Hearing Held. |
| Nov. 13, 1995 | Order Rescheduling Hearing sent out. (hearing set for 01/16/96; 10:00 a.m.; Ocala) |
| Nov. 09, 1995 | Letter to Hearing Officer from Frederick E. Landt, III Re: Dates available for hearing filed. |
| Nov. 06, 1995 | Letter to Hearing Officer from Frederick E. Landt, III Re: Dates available for hearing filed. |
| Oct. 25, 1995 | CASE STATUS DOCKETED: Hearing Partially Held, continued to date not certain. |
| Oct. 12, 1995 | Letter to CCA from Frederick Landt (RE: request for subpoenas) filed. |
| Aug. 22, 1995 | Notice of Hearing sent out. (hearing set for 10/25/95; 10:00am; Ocala) |
| Aug. 09, 1995 | Notice of Appearance and Respondent's Response to Initial Order w/cover letter filed. |
| Aug. 02, 1995 | Petitioner's Response to Initial Order filed. |
| Jul. 28, 1995 | Initial Order issued. |
| Jul. 26, 1995 | Notice; Request for Administrative Hearing, letter form (2); Agency Action letter filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Jul. 09, 1996 | Agency Final Order | |
| Feb. 14, 1996 | Recommended Order | Operator's husband at group home did not provide direct care. No requirement for background screening. Fine for failure to screen another employee. |
