STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF HEALTH AND )
REHABILITATIVE SERVICES, )
)
Petitioner, )
)
vs. ) CASE NO. 96-0393
)
NEW HOPE YOUTH HOMES, INC., )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a formal hearing was held in this case on May 9, 1996, in Sarasota, Florida, before Carolyn S. Holifield, Hearing Officer, Division of Administrative Hearings.
APPEARANCES
For Petitioner: Eugenie G. Rehak, Esquire
Department of Health and Rehabilitative Services
Post Office Box 60085
Fort Myers, Florida 33906
For Respondent: Al Pompey, Pro Se
Executive Director
New Hope Youth Homes, Inc. 2395 North Tuttle Avenue Sarasota, Florida 34234
STATEMENT OF THE ISSUE
Whether New Hope Youth Home, Inc., failed to comply with applicable rules as alleged by Petitioner and, if so, whether Respondent's Provisional Certificate of Child Care should be revoked.
PRELIMINARY STATEMENT
By letter dated December 14, 1995, Petitioner, the Department of Health and Rehabilitative Services (Department), notified Respondent, New Hope Youth Homes, Inc., that it was revoking the Provisional Certificate of Child Care Agency License No. 10951906 issued on October 20, 1995. The letter stated that the revocation was based on Respondent's failure to adhere to the requirements of Section 409.175, Florida Statutes, and Rule Chapter 10M-9, Florida Administrative Code.
Specifically, the revocation was based on allegations that Respondent failed to do the following: (1) provide timely notification of incidents affecting the health, welfare, and safety of children in Respondent's care; (2)
provide basic and enhanced services; (3) provide adequate twenty-four hour supervision to children in care; (4) provide correct and/or adequate documentation of services and service related activities; (5) comply with requirements for background screening; (6) provide evidence of financial ability to provide care for children; and (7) comply with all applicable health standards.
Respondent denied the allegations and timely requested a formal hearing.
On January 23, 1996, Petitioner referred the matter to the Division of Administrative Hearings to conduct a formal proceeding. The case was initially assigned to Arnold H. Pollock, but prior to final hearing was transferred to the undersigned.
At the formal hearing, the Department presented the testimony of six witnesses and had sixteen exhibits admitted into evidence. Respondent presented the testimony of four witnesses and had five exhibits admitted into evidence. A transcript of the formal hearing was not requested by either party. The Department timely filed its Proposed Findings of Fact and Conclusions of Law.
Respondent did not file a proposed recommended order.
Explicit rulings on Petitioner's Proposed Findings of Fact may be found in the attached Appendix to Recommended Order, Case No. 96-0393.
FINDINGS OF FACT
New Hope Youth Homes, Incorporated (New Hope), is a residential group care facility designed for long-term placement of dependent delinquent male teenagers, a group which is particularly difficult to place. The total capacity for the facility is six placements.
New Hope was initially issued Provisional Child Care Agency License No. 1094-43-06 by the Department to operate the residential group care facility.
The effective period of the license was October 19, 1994 through October 18, 1995.
Consistent with applicable rules governing child care licensing, New Hope was issued a provisional license because the Department believed the facility met all safety standards and had reasonable assurance that the facility could come within compliance during the licensure period.
In a letter dated August 9, 1994, to the bank providing New Hope with a line of credit, the contract manager for the Department stated that the Department intended to contract with New Hope once the facility received its license. The letter further indicated that a rate agreement had been developed, which would pay New Hope $1,650.00 monthly for each child in care. According to the correspondence, for the first two months of the contract period, the Department would advance funds to New Hope, based on anticipated cash needs.
The amount of each advance payment to New Hope would be approximately $9,500.00, "totaling an advance of approximately $19,000.00." The Department stated that New Hope "can expect to receive their advance within three weeks of contract execution." There was no mention in the letter that these funds had to be repaid by New Hope. A copy of the letter was provided to Al Pompey, Executive Director of New Hope.
Notwithstanding the representations made in the August 9, 1994 letter, after New Hope was licensed in October 1994, the agreement was disapproved by the State Comptroller's Office and, consequently, was never implemented. In
light of its prior agreement with New Hope, the Department made a special effort to develop another contract that would allow New Hope to open and operate as planned. Eventually, another contract was developed. This contract was executed in December 1994 or January 1995.
Under the contract that was subsequently executed, the Department was authorized to provide New Hope with three advance payments of $10,230.00 each. The first advance payment was received by New Hope in January or February 1995. By letter dated January 27, 1995, the Department notified New Hope that all advance payments made to the facility would have to be repaid by June 30, 1995, the end of the fiscal year. Repayment would be made by the Department reducing the biweekly increments paid to New Hope. If the entire $30,069.00 were advanced to New Hope, the repayment schedule would require that $3,069.00 be deducted from each of the biweekly invoices submitted to the Department between February and June 1995, inclusive. Based on the average biweekly invoice for New Hope of $4,125.00, the $3,069.00 deduction for repayment of advances would reduce the Department's biweekly payments to New Hope from $4,125.00 to
$1,056.00. The estimate of $4,125.00 represents the Department allocation for providing services to five residents for sixteen days.
Prior to receiving the letter from the Department regarding repayment of all funds advanced, Mr. Pompey did not know that these advances had to be repaid. Once Mr. Pompey was notified that repayment was required, he found it necessary to significantly reduce the staff and services at New Hope.
The $1,650.00 per month per child rate paid to New Hope was one of the highest rates paid by the Department to child-caring agencies in Sarasota. However, in order for New Hope to survive, it was anticipated and necessary that the agency would develop other sources of revenue. Although New Hope projected that it would generate $25,000.00 from outside sources, efforts in this regard was unsuccessful.
Between October 1994 and October 1995, the Department performed approximately eight operational reviews of New Hope. Of these, four visits were made between August and October 1995, in order to determine whether a license should be issued to New Hope upon expiration of its current one.
During the operational reviews, the Department's licensing specialist noted that New Hope did not have a system in place to assure accurate documentation of the activities and record-keeping required by Chapter 10M-9, Administrative Code. In an effort to bring New Hope into compliance, the Department provided technical assistance to New Hope throughout the period between October 1994 and October 1995. This assistance consisted of making recommendations regarding completion of required documentation and, in some instances, providing sample forms that could be used. Specific documentation which was required included placement documents, service plans, service review plans, bedcheck logs, and fire drill logs. Also, documentation of screening for employees and volunteers was required.
Often suggestions made by the Department specialist involved simply pointing out changes necessary because of technical requirements of rules and did not involve serious infractions. For example, during one operational review, the specialist observed that, based on the meal that was being served to the children, there was a deviation from the posted menu. The specialist used this opportunity to point out that any changes to the menu should be noted so that the menu accurately reflected what is actually being served. Once this was
discussed, there is no indication that New Hope failed to make such notations in the future.
Another example of New Hope's efforts to comply with Department recommendations involve the facility's need to work with a registered dietician. Initially, New Hope did not consult with professionally registered dietician or local health department. However, once informed of the need for such consultation, New Hope received services from a registered dietician at a local school.
Suggestions made by the Department specialist to Mr. Pompey were positively received. According to the specialist, Mr. Pompey was cooperative and expressed a willingness to implement the recommendations necessary to bring New Hope in compliance with Department rules. On follow-up visits there had usually been an attempt to comply with the recommendations. In some instances, the recommendations had been fully implemented. However, due to the staff shortage necessitated by the significant reduction in funds, some recommendations had been only partially implemented. Recommendations not fully implemented consistently involved the completion of the paperwork for the children in care.
On April 20, 1995, Rosemary Nardi, an internal auditor, with the Department performed a fiscal review of New Hope. At the time of the visit, Ms. Nardi requested a copy of the New Hope's books. In response to this request, Ms. Nardi expected to review a general ledger and documents such as cash receipts. In fact, New Hope provided Ms. Nardi with only a checkbook indicating the facility's expenditures. Based on Ms. Nardi's review, she found that cash was overdrawn in a small amount and that New Hope had exhausted its line of credit. After sending New Hope a corrective plan, Ms. Nardi visited the facility again on June 15, 1995. During the subsequent visit, Ms. Nardi met with New Hope's certified public accountant (CPA), who assured her that the corrections would be made. There is no indication that New hope failed to taken the recommended corrective action.
Except for one unfortunate incident in June 1995, there was never a concern from the Department about the care of children placed at New Hope. This incident involved a child in care at New Hope who ran away from the facility and the next day was shot and killed. The child, described in the Department's Relicensing Narrative as "one of the facility's more ungovernable youth," had a history of running away from facilities to which he had been assigned. Prior to June 1995, Mr. Pompey requested that the Department remove the youth from New Hope because of the serious problems he was having. The Department requested that New Hope keep the child until May 1995, and assured
Mr. Pompey that the child would then be removed from the facility. However, the child remained assigned to New Hope until June 1995.
New Hope staff did not report this incident to the Department or police. However, no evidence was presented regarding how much time had lapsed between New Hope discovering that the child had run away and the time of the shooting incident. As a result of this episode, the Department issued no citations against New Hope, but used the incident to point out to Mr. Pompey the need for New Hope to provide twenty-four hour awake supervision.
During the initial contract period, New Hope provided group counseling and individual counseling to residents of the facility. These services were documented in quarterly summaries completed by Dr. Ford, the person providing the services.
New Hope also provided tutoring to children residing at the facility. At one time Mr. Pompey had inquired about the tutoring services available through the North County Educational Assistance Program, but services through this program were never provided to the youth at New Hope. Rather, due to fund shortages, tutoring was provided by Mr. Pompey,(who holds a bachelor's degree and a master's degree), and by volunteers, some of whom were students from the University of South Florida.
Despite the fiscal problems experienced by New Hope in the initial contract and license period, and its failure to adequately document all services, the facility provided adequate services for the children in its care. Both the counseling and tutoring services provided by New Hope were commended by the Department In its October 18, 1995, Relicensing Narrative, the Department stated the following:
Significant improvements have been noted regarding each youth's academic performance
and several of the resident's behavioral deficits.
It is noteworthy that each resident in the program graduated from middle school to high school; this speaks very well for the tutoring program in place during the 1994-95 school year, as well as the supportive components of therapy
and the creative use of the "community role model" speaking program.
The Department initiated the relicensing review process for New Hope in August 1995. This review included a fiscal review and monitoring of compliance with programmatic requirements.
During the relicensing review, Rosemary Nardi again met with the CPA for New Hope. The financial situation of New Hope had not significantly improved since Ms. Nardi's earlier visits. In assessing New Hope's situation, Ms. Nardi determined that the residence occupied by New Hope was owned by and previously had been the home of Mr. Pompey's sister. New Hope had paid the owner of the property an initial relocation fee of $8,000.00 and was making monthly lease payments of $1,200.00. Ms. Nardi believed that the relocation payment was a significant amount of New Hope's overall budget and may have contributed to some of the agency's fiscal problems. However, Ms. Nardi conceded that payment of the relocation fee by New Hope was not illegal. New Hope believed the payment was justified based on the difficulty of locating acceptable and appropriate housing for its facility.
Also, during the review of the renewal application, the Department made visits to New Hope on August 18, 1995, August 29, 1995, September 29, 1995, and October 12, 1995. The Relicensing Narrative prepared by the Department summarized the Department's findings and specific areas in which New Hope remained out of compliance.
According to the narrative, New Hope needed to resolve the following deficiencies and provide the listed information:
An official list of the provider of all of employees and volunteers and their qualifications (due no later than 10/31/95);
a list of training provided staff during
the past year (due no later than 10/31/95);
the annual budget (due by 11/15/95);
an annual audit due by (12/31/95);
an approved sanitation inspection (due prior to relicensure on 10/19/95);
an approved final fire inspection (due prior to relicensure on 10/19/95);
development and use of placement agreements, service plans, service review forms which conform to 10M-9 requirements (due by 11/30/95);
corrections regarding screening and file maintenance for employees and volunteers (due by 10/31/95);
employment of hired staff to insure licensing and contract compliance (several employee positions are filled by screened volunteers) (due by 11/30/95);
finalization of policy and procedural manuals (due within sixty days after the delivery of the recommended changes by a specialist).
Notwithstanding the deficiencies, the Department believed that New Hope had made acceptable progress and issued a second Provisional License No. 10951906to the agency, subject to compliance with the requirements detailed in the Relicensing Narrative. In recommending New Hope for a second provisional license, the specialist who had worked with New Hope during its initial licensure period stated that
This agency has come a long way toward becoming a provider to which the Department can have faith that effective services and proper supervision is provided to difficult-to-manage teenage males.
The agency has a strong network of committed individuals whom are deeply concerned about the state of youth in Sarasota and the surrounding communities. The Sarasota operational unit indicates a continuing need for this provider's services.
It is therefore recommended that New Hope Youth Homes, Inc., located at 2395 North Tuttle Avenue, Sarasota, Florida, be granted a one year provi- sional Child Caring Agency license, to provide residential group care to six youths from 10-19-95 to 10-19-96, pending resolution of the. . . deficiencies by the due date listed.
Of the ten deficiencies listed in Relicensing Narrative, only two required compliance prior to issuance of the second provisional child care agency license. Prior to receiving its second license, New Hope was required to provide the Department with an approved sanitation inspection report and an approved final fire inspection report. This information was provided to the Department on or before the time designated in the Relicensure Narrative.
New Hope attempted to resolve the remaining deficiencies by the designated dates, but was successful in complying with only some of the
requirements noted in the Relicensure Narrative. Other than the sanitation and fire inspection reports, documentation requested by the Department and which was timely submitted by New Hope included an official list of New Hope's employees and volunteers and their qualifications; a list of training provided to staff during the past year; and corrections regarding screening and file maintenance. With regard to screening of employees and volunteers, the Department determined that these individuals had been fingerprinted, but not screened.
In two areas in which there were noted deficiencies, New Hope failed to submit documentation that it had taken the appropriate corrective action. First, New Hope did not develop and use placement agreements, service plans, and service plan review forms which comply with applicable rules. More importantly, when used, the documents did not contain some of the required information. Second, New Hope had not employed "staff to assure licensing and contract compliance," by November 30, 1995.
The other three items requiring action involved New Hope's annual budget, annual audit, and policy and procedure manuals. In regard to the annual budget , it is unclear whether this was prepared and provided to the Department by the designated due date, November 15, 1995. The annual audit was to be submitted to the Department by December 31, 1995. Since this due date was after the New Hope's contract with the Department was terminated and its license was revoked, there was no need or expectation that New Hope would provide the Department with an annual audit. The final version of the policy and procedural manuals was due "within 60 days after delivery of recommended changes" by the Department. The Department specialist anticipated that this review would be complete by November 15, 1995. However, no evidence was presented as to whether this target date was met. Nevertheless, even assuming that the Department review of the manuals was completed as planned, New Hope would have had until January 1996, to submit its policy and procedures manuals to the Department. Because New Hope's contract was terminated and its license revoked in early December 1995, there was no reason or opportunity for New Hope to comply with this directive.
Several weeks after New Hope received a second provisional license, the District Eight Health and Human Services Board (Board), directed the Department to investigate New Hope. The Board resolution directing this investigation was, at least in part, the result of a published newspaper article concerning the backgrounds of several individuals connected with New Hope. As a result of the Board directive, Department staff undertook an additional and extensive review of New Hope in November 1995.
As a part of the investigation requested by the Board, a third fiscal monitoring visit was made by Rosemary Nardi on November 20, 1995. The audit revealed that New Hope had failed to pay payroll taxes for 1995, and that a balance of approximately of $5,700.00, was still due to the Internal Revenue Service. The audit also revealed that New Hope began its operation using a bank line of credit. Even though New Hope had paid the loan off, it had subsequently drawn on the line of credit and currently owed the bank $4,600.00. Ms. Nardi's report noted that while New Hope had a shortage of funds, there had been no misappropriation of funds. In a memorandum prepared by Ms. Nardi after the audit, she summarized her findings and concluded that New Hope was not a financially viable concern. The memo stated that:
The financial stability at best under the present circumstances is limited. Without additional and other sources, I fail to see how
this can be a viable and on-going concern. The liabilities (re-payment of line of credit and payroll taxes) far exceed the cash available.
In addition there are additional expenses and overhead which need to be met
During November 1995 investigation, the Department became aware of a situation involving a child in which appropriate notification was not given to the Department by New Hope. A child assigned to New Hope became extremely emotional at school, and as a result was sent to the school office. School officials contacted Mr. Pompey, who immediately went to the school. Mr. Pompey and school officials agreed that the youth should be Baker Acted and sent to a crisis stabilization unit (CSU). Neither Mr. Pompey nor any other New Hope staff member reported this incident to the child's case worker. Mr. Pompey's failure to report this was based on his belief that this was not a serious incident. Also, Mr. Pompey believed that notification to the Department was unnecessary because, Wayne Wallace, liaison between New Hope and the Department, was aware of the episode, having gone to the CSU to calm the child down.
Another incident which came to light during the November 1995 investigation involved the detention on September 29, 1995, of three children residing at New Hope. These children were detained by the Sheriff's Department for possession of alcohol and petit theft, but were not arrested or taken into custody. Instead they were returned to New Hope and released into the custody of Mr. Pompey. The caseworker for two of the children was never informed of this incident by staff of New Hope, and learned about it on October 18, 1995, from a juvenile justice caseworker
During the November 1995 investigation, a visit to New Hope by a caseworker led the Department to conclude that New Hope was not properly supervising children in its care. One Sunday afternoon, in November 1995, while off duty, a caseworker assigned to two children residing at New Hope, passed by the facility. Upon observing the children on the porch, the case-worker stopped and asked the boys if anyone was at home.
The boys indicated that they did not know. Because in the past these children were sometimes reluctant to talk to Department staff, it is unknown whether the boys were answering truthfully or were being uncooperative. Given the boys' response, the case worker knocked on the door. Although no one answered the door, several minutes later, Gwen Whitaker, a staff member of New Hope, drove up and stated that she had been on an errand, but that her mother, Donnie Whitaker was at home. Donnie Whitaker is always at home on Sundays, except between 11:00 a.m. and 2:00 p.m. when she attends church. The time of the case worker's visit was not established, therefore, it cannot be clearly determined whether there was anyone supervising the children at New Hope.
As a result of the November 1995, investigation, the Department also concluded that New Hope had violated numerous health standards. This conclusion was based on problems associated with New Hope's septic system. While investigating New Hope, the Department learned about an August 1995, road improvement project on the street abutting the New Hope facility. Apparently, at or near the time of that project, a pipe attached to the septic system at the New Hope facility was discharging raw sewage onto the adjacent property. The Sarasota County Public Health Unit (CPHU) attempted to contact the owner or occupants of the property. No evidence was presented to establish that this was actually accomplished. A crisis situation developed on November 20, 1995 when a road construction crew again uncovered a pipe discharging raw sewage from the
New Hope facility. The pipe was capped at the direction of the CPHU, but the cap was removed from the pipe on or about November 22, 1995. No evidence was presented as to who removed the cap. A CPHU supervisor went to the New Hope facility on November 27, 1995, and informed the "person on duty" at New Hope that the sewage had to be pumped out of the hole immediately and that the pipe had to be recapped.
Shortly after the CPHU supervisor visited the New Hope facility to notify the occupants of the sewage discharge, pump outs were arranged. No evidence was presented as to who arranged for the pump outs, but under New Hope's lease, the landlord was responsible for maintenance of "the sewer, water pipes, and other matters related to plumbing."
Although there was no mention in the Relicensing Narrative that enhanced and basic services were not being provided by New Hope, the Department determined during the November 1995 investigation that these services were not being provided. The Department did not specify the particular services that were required, but not being provided by New Hope. With regard to enhanced services, the Relicensing Narrative noted only that there was "very little documentation in the client files regarding enhanced services". However, the Relicensing Narrative further stated that the contract "itself did not specify enhanced service requirements beyond the general guidelines".
Finally, during the November 1995 investigation, the Department determined that the individual providing counseling at New Hope was unlicensed and, therefore unqualified to provide services to the children residing at New Hope. The precise nature and basis of this determination is unclear It appears that during this investigation, the Department concluded that the children required therapy by a psychologist or a psychiatrist. However, no evidence was presented to establish that such therapy, in lieu of the counseling being provided, was either required by the contract or recommended by a qualified mental health professional. Prior to this investigation, the Department had not indicated that the counseling services being provided were inappropriate or that the person providing the was unlicensed. In fact, the Department had commented positively on the quality of counseling services being provided.
The Department terminated its contract with New Hope in early December 1995. On December 4, 1995, after terminating the contract, the Department removed the children from New Hope. Ten days later, New Hope was notified by the Department that its license was being revoked.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes.
The Department is the licensing agency for family foster homes, residential child-caring agencies, and child-placing agencies pursuant to the authority of Chapter 409, Florida Statutes.
Section 409.175(8), Florida Statutes, authorizes the Department to deny, suspend, or revoke an agency's license if the agency violates any provision of this section or licensing rules promulgated thereunder.
The Department is required and authorized to adopt and amend rules for the licensure and operation of family foster homes, child-caring agencies and
child-placing agency. Section 409.175(4)(a), Florida Statutes. Pursuant to this authority, the Department has promulgated Chapter 10M-9, Florida Administrative Code.
In the notice of revocation, the Department alleges that New Hope violated Section 409.175, Florida Statutes, and rules promulgated thereunder, specifically Chapter 10M-9, Florida Administrative Code. The Department also alleges that New Hope violated Chapter 10D-6, Florida Administrative Code.
In these proceedings, the Department has the burden to prove the grounds for revocation by clear and convincing evidence. Ferris v. Turlington,
510 So.2d 292 (Fla. 1987). Clear and convincing evidence means:
. . . that the evidence must be found to be credible; the acts to which the witnesses testify must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction without hesitancy, as to the truth of the allegations sought to be established
Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983).
The Department first charges that New Hope failed to provide timely notification to the Department of incidents affecting the health, welfare, and safety of children in care. The pertinent rules, Rules 10M-9.023(5) and 10M- 9.025, Florida Administrative Code, provide the following:
10M-9.023 Health Services.
* * *
(5) The facility shall immediately notify the child's parent or guardians, the placing agency or the department of any serious illness, any incident involving bodily injury or any severe psychiatric episode requiring the hospitalization of a child.
10M-9.025 Incident Notification Procedures
(1) Notification shall be made by the program director or other staff as designated by the program director to the following persons in the following circumstances:
(1). . .If the child who is placed by the department runs away or becomes injured or ill, the child's counselor or supervisor shall be notified. . . .
With regard to the first charge, the Department has sustained its burden of proof. The evidence demonstrated that after experiencing extreme emotional problems at school, a child assigned to New Hope was Baker Acted. Notwithstanding the emergency nature of this action, Mr. Pompey failed to notify the child's case worker of the episode and, therefore, violated Rule 10M-9.023, Florida Administrative Code.
As to the charge that Respondent violated Rule 10M-9.025, Florida Administrative Code, Petitioner has failed to meet its burden. According to the Department's own witness, the only incident involving a client at New Hope running away from the facility occurred in June 1995, and was not the basis for the revocation of the child care agency license. The incident was used to point out the need for twenty four hour awake supervision. There was no evidence presented showing that after this incident, any other child ran away from New Hope and was not immediately reported to appropriate Department officials.
The second charge alleges that Respondent failed to provide basic and enhanced services required by rule. The Department alleges that in this regard, New Hope violated Rules 10M-9.022, 10M-9.046, 10M-9.053, and 10M-9.057(5), Florida Administrative Code.
Rules 10M-9.022 and 10M-9.053, Florida Administrative Code, establish requirements involving food and nutrition. The former rule requires that facilities retain their menus for a six month period. The Department interprets this to also require that posted menus accurately reflect what is being served to the children. Rule 10M-9.053, Florida Administrative Code, provides in pertinent part the following:
The facility shall assign a staff member to the overall management of food service. If this person is not a professionally registered dietitian, consultation or menu planning shall be obtained at least quarterly from a profes- sionally registered dietician or the local health department. . . .
The Department did not prove that Respondent failed to retain menus for a six month period as required by Rule 10M-9.022, Florida Administrative Code. Also, it was not proven that the printed menus deviated from what was actually being served. Although this happened on at least one occasion, it was immediately corrected. Having timely corrected the problem, New Hope cannot be disciplined for this technical violation. Likewise, the Department failed to prove that New Hope violated Rule 9M-9.053, Florida Administrative Code by not consulting with a professionally registered dietician on at least a quarterly basis. Credible evidence was presented that after this concern was brought to its attention by the Department, New Hope consulted with a professionally registered dietician at a local school.
Petitioner's second charge further alleges that New Hope violated Rules 10M-9.046 and 10M-9.057(5), Florida Administrative Code which provide in relevant part:
10M-9.046 Program Services for Children. Care Service Plan.
The facility shall develop a written service plan or obtain a copy of the child's
performance agreement within 30 days of placement for each child admitted into care. The service plan shall integrate the provisions of the performance agreement or the permanent placement plan.
10M-9.057 Job Functions and Staff Qualifications
* * *
(5) The facility shall obtain the services of licensed persons to provide necessary psychological, psychiatric, medical, and dental services and consultations.
The Department proved by clear and convincing evidence that New Hope failed to develop service plans thereby violating Rule 10M-9.046, Florida Administrative Code. However, the Department did not sustain its burden regarding the charge that New Hope violated Rule 10M-9.057, Florida Administrative Code.
The Department alleges in the third charge that New Hope failed to provide adequate twenty-four hour supervision of children in its care, contrary to Rule 10M-9.034, Florida Administrative Code. The Department failed to prove by clear and convincing evidence that New Hope failed to provide adequate staff coverage and designate a staff member to be in charge at times when the children are present.
The fourth charge alleges that New Hope failed to provide correct and/or adequate documentation of services and service related activities. According to the revocation notice, the specific rules violated were Rules 10M- 9.020(4), 10M-9.022, 10M-9.034, 10M-9.035(3), 10M-9.042, 10M-9.045, 10M-9.046, and 10M-9.047, Florida Administrative Code.
Rule 10M-9.020(4), Florida Administrative Code, requires that fire drills be held monthly and that reports of such fire drills be kept on file. Rule 10M-9.022, Florida Administrative Code, provides that facilities retain their menus for a six month period and that the menus be available for review by the Department.
According to Rule 10M-9.034, Florida Administrative Code, the facility is required to develop and follow a written staff to child ratio formula and to have and follow a written plan to provide additional emergency staff.
Rule 10M-9.035(4), Florida Administrative Code, provides that the facility maintain records on the hours and activities of volunteers.
The Department failed to prove by clear and convincing evidence that New Hope violated Rules 10M-9.020, 10M-9.022, 10M-9.034, and 10M.035, Florida Administrative Code.
The remaining rules which the Department alleges were violated by New Hope pertain to the records of children assigned to the facility. Rule 10M- 9.042, Florida Administrative Code, requires that facilities obtain complete medical information and consents prior to the child being admitted to the facility.
Rule 10M-9.045, Florida Administrative Code, provides that the facility shall have a placement agreement for each child at the facility. The placement agreement is a written agreement with the child, parent, guardian, the Department or the licensed child placing agency which describes the following:
The frequency of contacts with child's family or staff from the agency.
A plan for sharing information about child with parent, guardian, and the department as appropriate.
The facility's participation in the ongoing evaluation of the child.
The designation of responsibility for working with child's parent, guardian, or agency . . .
Visitation plans for the child's parent, guardian, agency or the department.
The provisions for a service plan review.
The financial plan for payment. . .
The conditions under which the child will be released form the program.
A designation of responsibility for aftercare services.
(2) The plan shall be kept in the child's file and shall be available for review by the department.
Pursuant to Rule 10M-9.046(1), Florida Administrative Code, New Hope was to develop a written service plan or obtain a copy of the child's performance agreement within thirty days of placement for each child admitted into care. The rule further provides that:
The service plan shall include the following:
An assessment of the child's and family's needs strengths, weaknesses, and problems;
An assessment of the child's educational, vocational, recreational and medical needs; a
plan for meeting them; and daily living activities;
Arrangements for individual or group counseling, as needed to resolve emotional conflicts or improve self esteem to help the child deal with personal problems, develop satisfying relationships and grow toward maturity;
A projection in regard to the child's length of stay and conditions under which the family will be reunited or other appropriate plan will be made;
A plan for agency contact with the child's parent or guardian to work toward reunification and resolution of the problems which lead to placement.
Finally, the Department alleges in its fourth charge that New Hope violated Rule 10M-0.047, Florida Administrative Code, by failing to properly document the review of the service plan. That rule states:
At the time of the review, the service plan which integrates the current performance agreement or permanent placement plan shall be revised to include the following:
Progress made toward achieving goals established in the previous service plan.
Any changes in the service plan.
A projected date for the child's release from care.
The Department proved by clear and convincing evidence that New Hope failed to maintain required records on the children in its care and, therefore,
has violated Rules 10M-9.042, 10M-9.045, 10M-9.046, and 10M-9.047, Florida Administrative Code.
In the fifth charge, the Department alleges that New Hope failed to comply with the requirements for screening and background checks of staff members and volunteers in violation of Rules 10M-9.033 and 10M-9.035, Florida Administrative Code, which in relevant part the following:
10M-9.033 Staff Qualifications.
* * *
The facility shall perform screening and background checks which shall include, but not be limited to. . .an abuse registry clearance, a local criminal records check and a state and federal criminal records check. The state and federal criminal records check requires the submission of fingerprints in accordance with Section 409.175, Florida Statutes. Screening and background checks are to be completed on
all personnel having direct contact with children in compliance with Section 409.175, Florida Statutes.
* * *
(5) The facility shall have a personnel file for each employee which shall include, but not be limited to the following:
* * *
Verification of an Abuse Registry clearance and criminal records check, including fingerprint clearance, through the Florida Department of Law
Enforcement and the Federal Bureau of Investigation; 10M-9.035 Volunteers.
A facility which utilizes volunteers to work directly with children on an intermittent basis for more than 40 hours per month must be screened in the same manner as the employees of the facility. . . .
While the failure to comply with screening requirements is a basis for revocation of a child-care agency license, in the instant case, it is inappropriate to use this as a basis for disciplinary action. The evidence presented demonstrated that the Department cited New Hope for this violation, but allowed the agency time to correct it. The violation was corrected by New Hope within the time frame established by the Department.
The sixth charge against New Hope is that it failed to provide satisfactory evidence of financial ability to care for children in its care, contrary to Rule 10M-9.036, Florida Administrative Code, which provides in material part
Funding: The agency shall provide written documentation that it has sufficient funds to meet all requirements for licensure. Facilities beginning operation shall provide evidence of sufficient funding for operation of the program for at least 6 months.
(4) Audit: The agency shall have financial records audited annually.
The Department proved by clear and convincing evidence that New Hope failed to provide written documentation that it had sufficient funds to meet the requirements of licensure. Also, New Hope did not provide evidence of sufficient funding for operation of the program for at least six months. New Hope's failure to provide such evidence violated Rule 10M-9.036 (21, Florida Administrative Code). This violation would have also been a sufficient reason to deny a child caring agency license to New Hope in October 1995.
The Department failed to sustain its burden regarding the allegation that New Hope violated Rule 10M-9.036(4), Florida Administrative Code. This rule requires that agencies have their financial records audited annually. In this instance, the Department notified New Hope that it must comply with this provision and established a date for such compliance. Under the Department's deadline, the audit was due on December 31, 1995, after New Hope's license was revoked. Obviously, compliance prior to that date was not required and failure to do so cannot be the basis for disciplinary action
Finally, the Department alleges in the seventh charge that New Hope failed to comply with "all applicable health standards due to failure to properly maintain the septic system. . .contrary to. . .Rule 10D-6, Florida Administrative Code". The chapter cited contains more than twenty rules and provides standards for sewage treatment and disposal systems. Even if it is assumed that each and every rule contained in Chapter 10D-6, Florida Administrative Code, applies to the septic system at the New Hope facility, the Department failed to establish who was responsible for taking care of the septic system problems. The uncontroverted evidence at hearing was that any such problem was the responsibility of the landlord. Thus, the Department failed to prove that New Hope violated Chapter 10D-6, Florida Administrative Code.
Obviously, the rule violations in this case would normally constitute grounds for revocation of a child-caring agency license. However, here there are facts which appear to make revocation an inappropriate course of action.
It is well established that an agency has no powers except those granted to it by the legislature. Schiffman v. Department of Professional Regulation, Board of Pharmacy, 581 So. 2d 375, (Fla. 1st DCA 1991).
This case involves the issuance and revocation of a provisional license to a child-caring agency. While clearly the Department is authorized to issue licenses to child-caring agencies, this authority is not without limits. Section 409.175(6), Florida Statutes, which governs the issuance of provisional licenses, provides the following:
(6)(a) The department may issue a provisional license to an applicant who is unable to conform to the licensing requirements at the time of the study, but who is believed able to meet the licensing requirements within the time allowed by the provisional license. The issuance of a provisional license shall be contingent upon the submission to the department of an acceptable written plan to overcome the deficiency by the expiration date of the provisional license.
A provisional license may be issued when
the applicant fails to meet licensing requirements in matters that are not of immediate danger to the children and the agency has submitted a corrective action plan which is approved by the department.
A provisional license may be issued if the screen- ing material has been timely submitted; however, a provisional license may not be issued unless the applicant is in compliance with the requirements in this section for screening of personnel.
[A provisional license shall not be issued for a period in excess of 1 year and shall not be subject to renewal]; and it may be suspended if periodic inspection by the department indicates that insufficient progress has been made toward compliance with the requirements.
[Emphasis supplied.]
According to this provision, the Department is authorized to issue a provisional license under the specified conditions. However, the provisional license may not be issued for a period in excess of one year and shall "not be subject to renewal." Section 409.175(6)(c), Florida Statutes. Unless there is an express exemption to this provision, the Department was without authority to issue the second provisional license. Thus, the Department should rescind its action issuing the second provisional license, thereby making such license null and void.
Nothing herein prevents New Hope from applying for a regular child- caring agency license, approval of which is contingent on the agency's complying with all applied laws and rules.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that:
Petitioner, Department of Health and Rehabilitative Services, rescind its action issuing the second provisional license to New Hope Youth Homes, Inc.
The Provisional License No. 10951906 issued to Respondent, New Hope Youth Homes, Inc., with effective dates of October 19, 1995 through October 19, 1996, be considered null and void.
DONE and ENTERED this 1st day of July, 1996, in Tallahassee, Florida.
CAROLYN S. HOLIFIELD
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 1st day of July, 1996.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 96-0393
To comply with the requirements of Section 120.59(2), Florida Statutes, the following rulings are made on the parties' proposed findings of fact:
Petitioner's Proposed Findings of Fact.
1.-5 Accepted and incorporated, except to the extent not subordinate or unnecessary.
Accepted, except in some instances, recommendations had been implemented.
Accepted and incorporated to the extent not subordinate or unnecessary.
Second, third, and fourth sentences accepted and incorporated except to extent subordinate or unnecessary. First sentence rejected as to characterization of policies and procedures. Last two sentences rejected as not supported by the record. As to what was reviewed with Respondent after this incident, the record shows that Petitioner used this as justification for
twenty-four hour awake supervision.
Accepted and incorporated except to the extent not subordinate or unnecessary.
Accepted and incorporated to the extent not subordinate and unnecessary. Second sentence rejected as not supported by the record.
Accepted and incorporated, except statement that items (d) and (e) were not resolved is rejected as not supported by the record.
13.-15 Accepted and incorporated except to the extent not subordinate or unnecessary.
First three sentences accepted and incorporated except to the extent not subordinate or unnecessary. The remaining part of paragraph is rejected as not supported by the record.
Accepted and incorporated except to the extent not subordinate or unnecessary.
First three sentences accepted. The last sentence is rejected as not supported by the evidence.
Accepted and incorporated except to the extent not subordinate or unnecessary. Statement in last sentence that earlier statement is "contrary to Gwen Whitaker's representation" is rejected as argument.
Accepted and incorporated except to the extent not subordinate or unnecessary. Second sentence rejected as not supported by the record.
Accepted and incorporated except to the extent not unnecessary, irrelevant, or immaterial.
Accepted and incorporated, except some deficiencies were noted during operational reviews.
Accepted and incorporated.
COPIES FURNISHED:
Eugenie G. Rehak, Esquire Department of Health and
Rehabilitative Services Post Office Box 60085
Fort Myers, Florida 33906
Al Pompey, Pro Se Executive Director
New Hope Youth Homes, Inc. 2395 North Tuttle Avenue Sarasota, Florida 34234
Gregory D. Venz Agency Clerk
Department of Health and Rehabilitative Services
Building One, Suite 204 F 1323 Winewood Boulevard
Tallahassee, Florida 32399-0700
Richard Doran General Counsel
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 the 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 consult with the agency that will issue the Final Order in this case concerning their 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 |
|---|---|
| Oct. 04, 1996 | Final Order filed. |
| Jul. 01, 1996 | Recommended Order sent out. CASE CLOSED. Hearing held 5/9/96. |
| May 17, 1996 | Proposed Findings of Fact Conclusions of Law, and Final Argument (Petitioner`s) filed. |
| May 09, 1996 | CASE STATUS: Hearing Held. |
| Apr. 08, 1996 | (Petitioner) Request for Official Recognition filed. |
| Feb. 13, 1996 | Notice of Hearing and Order Reversing Parties sent out. (hearing set for May 9-10, 1996; 9:30am; Sarasota) |
| Feb. 12, 1996 | (Respondent) Joint Response to Initial Order filed. |
| Jan. 29, 1996 | Initial Order issued. |
| Jan. 23, 1996 | Notice; Agency Action Letter; Request for Formal Administrative Hearing, letter form filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Oct. 01, 1996 | Agency Final Order | |
| Jul. 01, 1996 | Recommended Order | HRS without authority to renew provisional license. Renewal should be rescinded. At time of renewal, Respondent ineligible for regular child caring license. |
VISION YOUTH SERVICES OF FLORIDA, INC. vs DEPARTMENT OF CHILDREN AND FAMILIES, 96-000393 (1996)
ANGEL CHILD HOME CARE CORPORATION, INC. vs AGENCY FOR PERSONS WITH DISABILITIES, 96-000393 (1996)
PATRICIA ROVAI vs DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, 96-000393 (1996)
MICHAEL GARY AND PAMELA GARY vs DEPARTMENT OF CHILDREN AND FAMILY SERVICES, 96-000393 (1996)
