STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PEGGY STERLING, )

)

Petitioner, )

)

vs. ) CASE NO. 95-5974

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on February 22, 1996, in West Palm Beach, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Peggy Sterling

1626 West 17th Street

Riviera Beach, Florida 33404

For Respondent: Karen M. Miller, Esquire

Department of Health and Rehabilitative Services

111 South Sapodilla Avenue

West Palm Beach, Florida 33401 STATEMENT OF THE ISSUE

Whether Petitioner's and her husband's application for renewal of their family foster home license should be denied on the grounds set forth in the agency's letter to Petitioner advising her of the agency's intention to deny the application?

PRELIMINARY STATEMENT

By letter, the Department of Health and Rehabilitative Services (hereinafter referred to as the "Department") advised Petitioner of its intention to deny Petitioner's and her husband's application for renewal of their family foster home license. The letter read as follows::

This letter is to advise you that the Department of Health [and] Rehabilitative Services will not be relicensing your home when [your family foster care license] expires on October 31, 1995. This decision has been made based on our inability to evaluate your physical capacity to care for foster children,

because you are unwilling to sign a medical release. Since you requested removal of all the children in June, 1995 due to your health problems, and because for several months prior to June you consistently had children removed shortly after placement, we need a professional medical opinion of your physical ability to

[be a] foster parent.

You are further advised that within 30 days of receipt of this letter you may contest the decision of this agency by requesting an[] administrative hearing, pursuant to the Administrative Procedure Act, Chapter 120, Florida Statutes. Your request for an administrative hearing should be made b[]y sending a written request to:

Karen M. Miller District Legal Counsel

111 South Sapodilla Avenue, Third Floor West Palm Beach, Florida 33401

You have the right at any administrative proceeding to be represented by counsel and to have supporting information [presented] on your behalf. You may request a formal or

an informal proceeding. An informal proceeding will be held unless your request for an administrative hearing includes information evidencing a disputed issue of material fact.

Petitioner subsequently requested a formal hearing on the Department's proposed action. On December 7, 1995, the Department referred the matter to the Division of Administrative Hearings (hereinafter referred to as the "Division") for the assignment of a Division hearing officer to conduct the formal hearing Petitioner had requested. During the evidentiary portion of the final hearing in the instant case (which, as noted above, was held on February 22, 1996), the Department presented the testimony of four witnesses: Mary Bosco, a children and families counselor supervisor with the Department; Jo Ann Weisiger, a foster care licensing counselor with the Department; Laura Williams, a foster parent liaison with the Department; and Larry Garrett, a foster care supervisor with the Department. In addition to the testimony of these four witnesses, the Department offered, and the Hearing Officer received, seven exhibits (Respondent's Exhibits 1 through 7) into evidence. Petitioner testified on her own behalf and offered into evidence one exhibit (Petitioner's Exhibit 1), which was received by the Hearing Officer. She presented no other evidence.

At the conclusion of the evidentiary portion of the final hearing, the Hearing Officer, on the record, advised the parties of their right to file post- hearing submittals and established a deadline (fifteen days following the Hearing Officer's receipt of the transcript of the final hearing) for the filing of post-hearing submittals. The Hearing Officer received the transcript of the final hearing on March 8, 1996. On March 27, 1996, the Department filed a proposed recommended order containing, among other things, proposed findings of fact. The Hearing Officer has carefully considered the Department's proposed

recommended order. The findings of fact the Department has proposed are specifically addressed in the Appendix to this Recommended Order. To date, Petitioner has not filed any post-hearing submittal.

FINDINGS OF FACT

Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made:

1. The Department is a state government licensing and regulatory agency.

   
   

2. At all times material to the instant case, Petitioner and her husband, Keith Sterling, were licensed to operate a family foster home at their residence in Palm Beach County, Florida.

   
   

3. On September 1, 1994, as part of the licensing process, the Sterlings signed an "Agreement to Provide Substitute Care for Dependent Children" (hereinafter referred to as the "Agreement").

   
   

4. In so doing, they agreed that they would, as licensed foster parents, among other things, "comply with all requirements for a licensed substitute care home as prescribed by the [D]epartment" and, "whenever possible, give the [D]epartment at least two weeks notice," if they wanted the Department to "remove a child from [their] home."

   
   

5. In the spring of 1995, the Sterlings, on a fairly regular basis, "returned" foster children to the Department only a day or two after the children had been placed in their home without giving the Department the "two weeks notice" required by the Agreement.

   
   

6. The Sterlings' actions created a further disruption in the lives of these foster children and ran counter to the Department's goal of providing foster children with a relatively "stable setting" until they are adopted or reunited with their birth family.

   
   

7. Jo Ann Weisiger, a foster care licensing counselor working in the Department's District 9 foster care licensing and adoption office, visited the Sterlings' home in April of 1995 and expressed the Department's concerns about the Sterlings' practice of "returning" recently placed foster children to the Department.

   
   

8. After Weisiger's visit, the practice continued.

   
   

9. Weisiger therefore paid another visit to the Sterlings' home on May 15, 1995, to discuss the matter with the Sterlings.

   
   

10. During Weisiger's May 15, 1995, visit, Petitioner requested that the Department not place any foster children in her home for three months. She explained that she needed "a break due to her health."

    
    

11. The Department complied with Petitioner's request.

    
    

12. On September 11, 1995, Weisiger telephoned the Sterlings' residence to find out from Petitioner whether she and her husband wanted to renew their foster family home license (which was due to expire on October 31, 1995). Petitioner was not at home. Weisiger therefore left a message to have Petitioner return the telephone call.

13. The following morning (September 12, 1995), Weisiger received a telephone call from Petitioner. Petitioner told Weisiger that she and her husband wanted to renew their foster family home license, but she expressed an unwillingness to comply with Weisiger's request that she authorize the release of information and records concerning her medical condition. Weisiger advised Petitioner that the Department needed to have such medical information and records in order to determine whether to renew Petitioner's and her husband's license.

    
    

14. Weisiger followed up her September 12, 1995, telephone conversation with Petitioner by sending to Petitioner, on September 13, 1995, a letter, which read as follows:

    
    

    Pursuant to your request in June [sic] 1995, to remove the foster children due to your health concerns and personal reasons,

    we are requesting that you sign a medical release.

    We will need to contact your physician to obtain a professional opinion on your capacity to parent and meet the needs of our children. We are unable to contact a physician without your permission and without this information, we will not be able to evaluate your home for relicensing. We are enclosing a medical release for your signature. Please return this at your earliest convenience in the enclosed envelope, as your license expires

    on 10/31/95.

    
    

15. The "medical release" that Weisiger sent along with the letter "for [Petitioner's] signature" was the following "Authorization for Release of Health and Medical Information for Prospective Foster and Adoptive Parents" form (hereinafter referred to as the "Medical Release Form") that Weisiger's office uses in its efforts to obtain the necessary information to ascertain whether applicants seeking to become or remain foster or adoptive parents are able to care for children:

    1. I hereby request and Authorize (Name of Person)

       Health [and] Rehabilitative Services 1784 N. Congress Ave., Suite 102 West Palm Beach, FL 33409

       
       

    2. To obtain from:

       
       

       (Name of Person or Agency Holding the Information) Address: PHYSICIANS: Please provide complete information

       
       

    3. The following:

       All Medical Information, Reports, and Records, including diagnoses, subsequent courses of treatment, and prognoses pertaining to current and future physical and mental health status.

       All Medical Information, Reports and Records pertaining to health history during the past two years.

       
       

    4. From the medical record of :

       
       

       (Print or type name of client [and] birth date)

       
       

    5. For the purpose of assessing the health of the prospective caretaker as it relates to the applicant's ability to provide long-term care of a child/children, including economic support.

       
       

    6. I understand that my signature authorizes full disclosure of my medical and health condition and thereby, includes HIV test results.

       
       

    7. All information I hereby authorize to be obtained from this agency will be held strictly confidential and cannot be released by the recipient without my written consent, except for the purpose of judicial review in adoption proceedings.

       
       

    8. I understand that I may withdraw my consent at any time, but to do so will stop further consideration of myself as an adoptive or foster parent.

       
       

       Date Signature of Applicant

       
       

       
       

    9. USE THIS SPACE ONLY IF APPLICANT WITHDRAWS CONSENT

       
       

       Date consent Signature of Applicant revoked by

       applicant

       
       

16. On September 15, 1995, Petitioner telephoned Weisiger and informed Weisiger that she was not going to sign the Medical Release Form Weisiger had sent her inasmuch as, in her opinion, her "health was none of [the Department's] business."

    
    

17. As of the date of the final hearing in this case, Petitioner had not signed the Medical Release Form.

    
    

18. She did produce at the final hearing, a letter from her gynecologist, Stephen H. Livingston, M.D., dated October 13, 1995, which read as follows::

    
    

    Peggy Sterling has been under my care since April 24, 1995. On April 27, 1995, she had a vaginal hysterectomy. She has been cleared to return to work.

    While Dr. Livingston's letter provides some information regarding Petitioner's health, the information is insufficient to enable the Department to determine whether Petitioner has any health-related problems that would impair her ability to care for, or would otherwise be injurious to, foster children placed in her and her husband's home.

    
    

19. On October 31, 1995, the Department "closed" the Sterlings' family foster home "due to [the Department's] inability to determine capability of [the] foster mother [Petitioner] to parent, due to her recent physical problems."

    
    

20. By letter dated November 2, 1995, the Department notified the Sterlings that "[s]ince [it had] failed to receive the Authorization for Medical Release [it had] requested from [Petitioner] several weeks [prior thereto], [the Sterlings'] Foster Home license expired on 10/31/95."

    
    

    CONCLUSIONS OF LAW

    
    

21. With certain exceptions not applicable to the instant case, "a . . . family foster home . . . shall not receive a child for continuing full-time care or custody unless such . . . home . . . has first procured a license from the [D]epartment to provide such care." Section 409.175(3)(a), Fla. Stat.

    
    

22. The Department may deny an application for an initial or renewal family foster home license, or it may suspend or revoke a family foster home license it has already issued, if the applicant or licensee has committed "[a] violation of [Section 409.175, Florida Statutes] or of the licensing rules promulgated pursuant to this section." Section 409.175(8)(b), Fla. Stat.

    
    

23. Rule 10M-6.025(8), Florida Administrative Code, which provides as follows, is among the "licensing rules promulgated pursuant to [Section 409.175, Florida Statutes]," the violation of which is a ground for denial, suspension, or revocation of a family foster home license:

    
    

    Health History. Applicants [for family foster care licenses] are required to share health history on each member of the household including physical, mental health and other treatments received which may impair their ability to care for children. If there is a question regarding the physical, mental or emotional health of any member of the house- hold and possible injurious effects on a child, the applicant, upon the department's request, must supply clinical reports and evaluations.

    
    

24. In the instant case, Petitioner and her husband are seeking the renewal of their family foster home license.

    
    

25. Petitioner, however, has refused to "share [her] health history" with the Department, which has reason to question, based upon what occurred in the spring of 1995 (i.e., Petitioner and her husband regularly "returning" foster children to the Department shortly after placement and, more significantly, Petitioner requesting that the Department not place any foster children in her and her husband's home for three months because, as she told Weisiger, she

    needed "a break due to her health"), whether Petitioner's health will permit her to properly carry out all of the duties and responsibilities of a foster parent.

    
    

26. Petitioner's refusal to "share [her] health history" with the Department under the circumstances of the instant case is in violation of the requirements of Rule 10M-6.025(8), Florida Administrative Code.

    
    

27. The violation of this "licensing rule promulgated [by the Department] pursuant to [Section 409.175, Florida Statutes,]" warrants the denial, pursuant to Section 409.175(8)(b), Florida Statutes, of Petitioner's and her husband's application for the renewal of their family foster home license.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED that the Department enter a final order denying Petitioner's and her husband's application for the renewal of their family foster home license, without prejudice to Petitioner and her husband applying for a new license if, in conjunction therewith, they take the necessary measures to "share [Petitioner's] health history" with the Department, as required by Rule 10M- 6.025(8), Florida Administrative Code.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 29th day of March, 1996.

STUART M. LERNER, 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 29th day of March, 1996.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 95-5974

The following are the Hearing Officer's specific rulings on the findings of facts proposed by the Department in its proposed recommended order:

1. Rejected because it lacks sufficient evidentiary/record support. 2-3. Accepted as true and incorporated in substance, although not

necessarily repeated verbatim, in this Recommended Order.

1. First sentence: Accepted as true and incorporated in substance;

   Second sentence: Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

2. First sentence: Rejected as a finding of fact because it is more in the nature of a statement of the law than a finding of fact; Second and third sentences: Accepted as true and incorporated in substance.

3. Accepted as true and incorporated in substance.

4. Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

5. First sentence: Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Second sentence: To the extent that this proposed finding states that Petitioner told Weisiger "that she was not going to sign the authorization to release any of her medical records to Dept. HRS," it has been accepted as true and incorporated in substance. Otherwise, it has not been incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer; Third sentence: Accepted as true and incorporated in substance.

6. To the extent that this proposed finding states that, during their September 15, 1995, telephone conversation, "Petitioner again refused to sign the authorization to release her medical records to the Dept. HRS," it has been accepted as true and incorporated in substance. Otherwise, it has not been incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

7. Accepted as true and incorporated in substance.

8. Not incorporated in this Recommended Order because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

COPIES FURNISHED:

Peggy Sterling

1626 West 17th Street

Riviera Beach, Florida 33404

Karen M. Miller, Esquire District Legal Counsel Department of Health and

Rehabilitative Services

111 South Sapodilla Avenue

West Palm Beach, Florida 33401

Richard Doran, General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Sandy Coulter, Acting Agency Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 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 of time 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.

Docket for Case No: 95-005974

Orders for Case No: 95-005974