STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PATRICIA ROVAI, )

)

Petitioner, )

)

vs. ) Case No. 96-4345

)

DEPARTMENT OF CHILDREN )

AND FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this matter was heard before the Division of Administrative Hearings, by its duly designated Administrative Law Judge, Diane Cleavinger, on April 9, 1997, July 11, 1997, and on July 21, 1997, in Pensacola, Florida.

APPEARANCES

For Petitioner: Matthew D. Bordelon, Esquire

Bordelon and Bordelon, P.A. 2717 Gulf Breeze Parkway Gulf Breeze, Florida 32561

For Respondent: Rodney M. Johnson, Esquire

Department of Health

1295 West Fairfield Drive Pensacola, Florida 32501

and

Katie George, Esquire Department of Children

and Family Services Suite 601

160 Governmental Center Pensacola, Florida 32501

STATEMENT OF THE ISSUE

Whether the Petitioner's application for licensure as a Residential Foster Care Home should be granted.

PRELIMINARY STATEMENT

Around July 1996, Petitioner filed an application for licensure as a Developmental Services Foster Home. The Department of Health and Rehabilitative Services denied licensure to Petitioner as a Developmental Services Foster Home in a letter dated August 18, 1996. Petitioner filed a timely request for a hearing pursuant to Sections 120.570(1), Florida Statutes, and the matter was referred to the Division of Administrative Hearings.

At the hearing, Petitioner called seven witnesses:

Vernell Ray Martin Sr., Teacher, Oriole Beach Elementary School, Gulf Breeze, Florida; Dalene Thompson, Physical Therapy Assistant; Katherine Ann Pickman-Shields, Licensed Physical Therapist; Dr. Rex Northup, Medical Director, Medical Foster Care Program; Judith Benford, R.N., Medical Foster Care Nurse, Medical Foster Care Program; and Donna Mims, Programs Operations Administrator, District One. Fourteen exhibits were offered into evidence. Respondent called three witnesses: Haddie Grant;

Laura Edler, a coordinator for Medical Foster Care Program; and Glenda Thomas, Nurse Director, Department of Health/Childrens' Medical Services. Four exhibits were offered into evidence.

After the hearing Petitioner and Respondent filed Proposed Recommended Orders on September 4, 1997, and September 2, 1997, respectively.

FINDINGS OF FACT

1. Petitioner, Patricia Rovai, was first licensed by Respondent as a Developmental Services Residential Foster Care Home in 1989. Additionally, since 1975, Petitioner was and continues to be a Licensed Practical Nurse. Ms. Rovai specialized in providing foster care to children participating in the Medically Complex Children Foster Care Program.

2. On January 18, 1996, a meeting was held between Donna Mims, head of foster care licensing for Developmental

   Services, and Petitioner and her husband. The meeting was held in regards to the conditional license which had been issued to Petitioner and was due to expire on January 31, 1996. During the meeting, Ms. Mims informed Petitioner that she was qualified to receive an ordinary foster care license and could receive such a license. However, Children’s Medical Services was not willing to designate, certify, or endorse Petitioner for participation in the medical foster care program. She therefore, would not be able to provide foster care to a medically complex child. At the conclusion of the meeting and in part due to the fact that Petitioner was exhausted after living through two successive hurricanes, Petitioner chose to allow her license to expire.

   Respondent admits that, other than the allegations set forth in its 1996 licensure denial letter, Petitioner is qualified to be licensed as a developmental services foster home.

3. Around July 1996, Petitioner submitted an application for licensure as a developmental services foster home under Chapter 393, Florida Statutes, and Chapter 10F-6.009, Florida Administrative Code.

4. On August 21, 1996, Respondent notified Petitioner by letter that her application had been denied.

5. The letter denying a new license to Petitioner addresses several concerns of the Department based on Petitioner's past performance as a medical foster parent. The letter specifically referred to Petitioner's alleged problems with her foster child's school attendance, cooperation with Departmental staff or therapists assigned to her foster child, failure to utilize or inappropriate use of community resources and skilled nursing care, failure to encourage parental involvement or reunification, failure to encourage the child to achieve, and failure to share information regarding parental involvement with the Department. The letter cited Rule 10F-6.009, Florida Administrative Code, dealing with foster parent responsibility and training of the foster child.

6. In general, foster care providers are subject to the promulgated rules applicable to foster care facilities and caregivers contained in Chapter 10F-6.009, Florida Administrative Code. These are the only rules applicable to foster care licenses for developmental services foster care or medically complex foster care. Whether a licensee provides medically

   complex foster care seems to depend on whether the licensee is designated, endorsed, or certified by Children's Medical Services. Children's Medical Services was part of Respondent, but is now part of a different agency. The evidence was unclear on the exact legal process for becoming a medical foster care parent. Even the various agencies involved seemed confused regarding the licensure status of a medical foster care parent. The licensure requirements set forth in Chapter 10F-6.009, Florida Administrative Code, are separate from the Statewide Operation Plan, which is not a rule. In fact, the Statewide Operation Plan specifically states at Chapter 7, page 4 that "failure to meet the requirements for Medical Foster Care does not necessarily affect their license as a 'traditional' foster parent."

7. No administrative rules have been promulgated for the medical foster care designation. However, the effect of the medical designation upon a foster home license is to allow the foster home to become a Medicaid provider and be paid for their service from Florida's Medicaid program. The payment from Medicaid for the medical foster care designation is approximately

   $2,000.00 per month per child. The foster home also receives

   
   

   $440.00 per month per child from developmental services.

   
   

8. The vast majority of children in the medically complex program live with their biological families. When a child needs to be placed in a medical foster home, the skills of the medical

   foster parent are matched to the child’s needs. The program looks at whether the medical foster parent is trained, licensed, and credentialed to meet the needs of a given child. If a medical foster care parent lacks a skill a potential placement might require, then the foster parent is given training to develop that skill. All the foster care parents assigned medically complex children have some background in the medical field.

9. In February of 1989, at about two-years old, Adam Ingram was placed into Petitioner's care as a participant/patient in the Medical Complex Children Foster Care Program within the Developmental Services Program of Respondent.

10. Dr. Rex Northup, the Medical Director for the Medical Foster Care Program, considered Adam Ingram to be one of the higher level of care children in the Medical Foster Care Program.

11. Specifically, Adam Ingram was born with and continues to suffer from myotonic dystrophy. Myotonic dystrophy is a congenital disorder that affects neuromuscular formation and has an extensive impact on other bodily systems.

12. Adam Ingram's mother, Karen Moncrief, permanently suffers from the related condition of muscular dystrophy.

13. Adam Ingram's congenital disorder adversely affects his central nervous system functions, muscle functions, gastro- intestinal functions, cardiac functions, and respiratory

    functions. In short, Adam’s muscles, lungs, heart, stomach, legs, throat, bowels, and bladder, etc., do not work well.

14. As a result of his medical condition, Adam Ingram has a respiratory insufficiency that required a tracheostomy. He is periodically ventilator-dependent when he is asleep or ill. When not ventilated, Adam’s respiratory system must be cleared of mucous through suctioning, coughing, or throat clearing.

15. Because of his complex and often fragile medical condition, Adam Ingram receives treatment from a neurologist, ophthalmologist, otolaryngologist, pulmonologist, cardiologist, gastroenterologist, and orthopedist. He has been hospitalized on at least seven occasions between 1984 and 1995. Otherwise, Adam has frequently been below normal health.

16. Adam Ingram has also needed and received surgical intervention relating to his trachea tube. Because of his tracheostomy, he is at a higher risk for contracting respiratory illnesses, such as colds.

17. He has also had problems with controlling his bowels and with voiding his bladder, causing bladder distension. Adam is not potty trained and must wear diapers.

18. Additionally, due to his medical problems, Adam Ingram has been delayed in development of speech, vocalization, and communication skills. However, he is of normal intelligence and emotion. He can to some degree operate a computer.

19. In sum, Adam, as a medically complex patient, is one of the higher level of care children in that he requires a great deal of direct care to manage his medical problems. He is not as unstable as some of the other children in the program that require more technological assistance and medical care. These more unstable children tend to also lack mobility, activity, and awareness. Adam, on the other hand, is quite mobile, active, and aware. He requires and demands a great deal of attention, as any young child does. Adam is simply a handful to care for.

20. As part of undertaking Adam’s care, Petitioner was specially trained to operate various ventilators required by Adam. Petitioner also served as a demonstrator for other foster parents who required training.

21. Judith Benford was the medical foster care nurse who had substantial contact with Petitioner and who was primarily knowledgeable in the Department as to the conditions in Petitioner's home. She rated Petitioner as satisfactory in some areas and unsatisfactory in the areas noted in Respondent's letter of denial. However, Petitioner was recommended for re- licensing by Benford around October 6, 1995, after a complete evaluation of Petitioner's performance with Adam Ingram.

22. In November of 1995, Petitioner's license was conditionally renewed. The only specific written conditions were that she recharge her fire extinguisher and renew her CPR certification. The capacity of the home was reduced to one bed.

    Although not listed specifically on the conditional license, other conditions on Petitioner's license, issued in November 1995, were to develop a list of people who were interested in licensure and would be willing to care for Adam, improve Adam’s school attendance, and other “concerns” expressed at Petitioner’s and Adam’s medically handicap assessment team (MHAT) staffings.

    It should be noted that these unspecified “conditions” or “concerns” probably were ineffective as limitations on Petitioner’s conditional license. What is relevant for this hearing is that these conditions had been ongoing issues throughout Petitioner’s time as a medical foster parent.

23. One major concern was Petitioner's continual request for additional help or respite care from Respondent when the resources available are limited by budgetary concerns of the Department. Because funding for extra help is limited, medical foster parents are encouraged to try to provide cross-coverage for each other, in that one medical foster parent would take care of another's children to allow the other foster parent a break or respite for an evening, weekend, or whatever. This is a reciprocal arrangement between medical foster homes. However, in the absence of an available swap between foster parents for respite care, the Department has the ability and does occasionally provide extra help to the foster parent.

24. The problem from the Department's point of view is whether Medicaid or other Departmental funds can be and are

    available to pay for the assignment of extra help to a foster parent. Medicaid pays for extra help only when the medical needs of the child require the extra service. Other Departmental funds, which are often not available, pay when the extra help is needed by the foster parents because they are exhausted or ill.

    Nursing care requested by Petitioner on some occasions was not provided.

25. Additionally, the medical foster parent is the primary eyes and ears for the Department regarding the medical services required by any medical foster child. For that reason the communication and feedback between the licensee and the Department has to be good, trusted, and comfortable.

26. In May 1993, Petitioner was urged to swap respite services with other medical foster parents. Petitioner was hesitant because not all medical foster parents were trained in ventilator usage and she had a low opinion of some of the care rendered by some of the medical foster parents. At the time, at least one other medical foster parent had ventilator training. However, the evidence did not show that the ventilator-trained foster parent was able to provide respite care to Petitioner when she needed it.

27. The Department recognized the problem with the lack of ventilator training and on July 7, 1994, all medical foster parents were given training on ventilator usage.

28. In the winter of 1994, the department was attempting to work out respite help for Petitioner. The Department provided some respite help for 12 hours per month at $7.50 per hour. For unknown reasons, the respite was not used. Petitioner was also encouraged to obtain services through developmental services. The evidence did not show what services were available, if any. In December, 1994, the Department offered to temporarily place Adam in another medical foster home so Petitioner could get some rest. Petitioner declined because of her opinion of the poor care rendered by that foster home and the fact that the preparation for moving Adam was just as taxing as his staying.

29. On January 10, 1995, a private duty nurse was provided by the Department. Petitioner directed the nurse to take Adam outside to swing. The evidence did not show whether any medical care was rendered during this visit.

30. In February 1995 a private duty nurse assigned to Adam found Adam in the living room watching TV with Petitioner. At the time, no medical symptoms of significance were noted by the nurse.

31. On March 20, 1995, Petitioner reported that Adam was coughing incessantly and needed frequent suctioning every 15 minutes. Petitioner requested additional nursing help. That same day the Department’s supervising nurse visited the home for one and one-half hours. During that time, Adam’s condition was

    stable; he did not cough and did not need suctioning. The Department did not provide additional nursing help.

32. Also, sometime in March 1995, a private duty nurse was utilized to cleanup Adam’s room, linens, and bed. She also emptied the suction machine and installed a new catheter. The evidence did not show whether private duty nursing care was needed.

33. Around May, 1995, the department lost confidence in Petitioner’s ability to determine when Adam was sick. The loss in confidence was due in part to the high number of school absences, in part to the Petitioner’s frequent requests for respite help, and in part due to the department’s suspicion that Petitioner was overstating Adam’s illnesses in order to obtain more help.

34. In May of 1995, the Respondent instituted close supervision, monitoring, and support in an effort to prevent disruption in the placement of Adam in the Petitioner's home. During this time, the Petitioner's daughter, Dana, was providing some of the extra nursing care to Adam. School attendance was basically non-existent.

35. Petitioner increased her request for nursing services in July 1995 after becoming aware that another child who was medically more complex than Adam was receiving additional nursing services. Petitioner, correctly, felt it was her duty to seek the best care for Adam. Between July and the end of October

    1995, Petitioner was averaging around 16 hours per week of private duty nursing. During that time period, Adam was experiencing chronic bronchitis and other illnesses, in part due to the fact that his trachea tube needed to be re-seated.

    Sixteen hours of private duty nursing care per week for a child such as Adam is unusual but not unreasonable.

36. In August 1995, an extra private-duty nurse was provided to Petitioner. During that time, Adam put himself in his wheelchair and went outside to swing for 30 minutes. Adam then watched TV and played pretend games in the front room. The evidence did not show whether any medical care was rendered during the nurse's visit.

37. To resolve some of the Petitioner’s problems with inadequate help, the Department in 1995 requested that Petitioner develop a “corrective action program” to maintain the placement of the child in her home.

38. Petitioner continuously attempted to develop a respite system by involving and or recruiting other potential foster care providers into the program. However, Adam Ingram's complex medical condition and activity level limited the availability of such respite providers. Either the recruits lost interest in pursuing licensure or qualified caretakers would observe Adam and decide he was to much to deal with.

39. As the foster care parent to Adam Ingram, Petitioner was considered to be the primary person to evaluate Adam's health

    to decide whether Adam was healthy enough to attend school. However, Adam's mother, Karen Moncrief, was expected to provide six to eight hours of care per week as well as provide some respite care.

40. At some point during Adam’s placement at Petitioner’s home, Ms. Moncrief met Petitioner’s nephew. Ms. Moncrief and Petitioner’s nephew were eventually married.

41. Karen Moncrief has always been involved in Adam’s care. However, her involvement was often sporadic due to complications from her medical condition and complications of her pregnancy. She often would not follow through on promises of caring for Adam or promises of helping Petitioner with Adam’s care. Her involvement was inconsistent. Therefore, the reports of Karen’s involvement with Adam reflected that inconsistency. The Department concluded that the problem of inconsistent reporting or refusal to share such parental information was because Petitioner was being inconsistent in her reports on parental involvement or not including such information in her reports.

    The Department’s conclusion was wrong and not based on the facts regarding Ms. Moncrief’s behavior.

42. On September 29, 1995, Adam was scheduled to go on a weekend visit to the biological parent’s home. However, Petitioner refused to permit the visit because the home was in poor condition and not suitable or safe for Adam to visit. The evidence showed other parental visits were encouraged.

43. Also, on September 29, 1995, after Adam’s mother had once again failed to keep her promise that she would help

    Ms. Rovai with Adam’s care, Ms. Rovai became very upset and called Respondent to come and get Adam. She was leaving. After some conversation, Petitioner calmed down and Adam was not picked up by the Department.

44. On October 20, 1995, Petitioner submitted a letter of resignation as the foster parent of Adam. The resignation was to be effective in 30 days.

45. Towards the end of Petitioner's licensure, on November 15, 1995, at 9:30 p.m., Petitioner called the

    Department’s supervising nurse and reported that Adam had labored respiration and retraction and was generally sicker than usual.

    The nurse advised Petitioner to take Adam to the emergency room. Petitioner reported she was too ill and exhausted to take Adam to the emergency room. Adam’s mother was called and she took Adam to the emergency room. The emergency room exam did not reveal anything unusual in Adam’s condition and Adam was well, for Adam.

46. On November 16, 1995, Petitioner requested that the supervising nurse come to Petitioner's home to see Adam. Petitioner also indicated she was still ill and exhausted. The supervising nurse obtained Medicaid approval for 8 hours per day of extra private duty nursing care for four days based on Petitioner's exhaustion and for support of the continued

    placement of Adam in Petitioner’s home until he was moved to Hattie Grant’s home.

47. Throughout 1995, the supervising nurse visited Adam on at least 8 occasions to double check his condition against any illness Petitioner had reported. Except for one visit when Adam was febrile, Adam appeared healthy enough to attend school. However, these visits were often several hours after Petitioner’s report and usually in the afternoon, enough time for fever, nausea, or congestion to reduce with medication. The Medical Director of the Medical Foster Care Program testified that Petitioner's request for nurses and or respite care were not unreasonable given that Adam was a high-level of care and medically needy person. Petitioner was simply expected by the Department to live with the lack of assistance, keep quiet about it, and not make requests for help, except when she needed help. The double-bind demands the Department was placing on Petitioner were simply unreasonable and cannot serve as a basis for denying her application for licensure.

48. Around the end of November 1995, Hattie Grant, a medical foster care parent, agreed to take Adam Ingram into her home. The change in foster care parents was agreed to by Adam’s mother, Karen Moncrief. Ms. Moncrief agreed for reasons she described as manipulation of her by Petitioner. However, Adam along with his mother and Petitioner’s nephew continued to see Petitioner at church and visit her at her home.

49. The medical condition of Adam improved once in Ms. Grant’s home. He did not need as much acute care.

    Additionally, his school attendance increased dramatically. His manners at office visits with the doctor improved. However, this improvement could not be attributed to the change in placement or to anything Petitioner did or did not do in caring for Adam. It is very likely that the improvement was due primarily to his physical maturation. It is also very likely that re-seating his tracheal tube caused Adam’s propensity to become ill to dissipate.

50. Ms. Grant did not require the amount of additional skilled nursing help that Petitioner had. The lessening of the need for skilled nursing help may have been due, in part, to Adam’s improved health and better attendance at school, giving Ms. Grant a break from caring for Adam.

51. Additionally, Ms. Grant expressed serious concerns about harassment and constant scrutiny by the parents of Adam. One such complaint arose when Adam’s mother, accompanied by Ms. Rovai, took Adam to the emergency room from school. The

    emergency room physician could not find anything wrong with Adam. Another complaint was that Adam was losing weight. Weight loss was not borne out by any medical examination. Ms. Grant felt that she could not do anything right in the opinion of Adam’s parents. Eventually, an abuse complaint was filed against Ms.

    Grant. The complaint was determined to be unfounded. She was

    concerned about her reputation, the constant scrutiny and second guessing of her care.

52. The parents of Adam did not testify at the hearing. The testimony from Ms. Rovai and Ms. Grant was in conflict as to the legitimacy of various complaints regarding Ms. Grant’s care of Adam and who was behind those complaints. The evidence did show that some of the complaints came from Ms. Rovai. However, the evidence did not bear out the Department’s conclusion that

    Ms. Rovai was illegitimately interfering with Adam’s placement at Ms. Grant’s home.

53. At the end of the school year, around June 1996, Adam was removed from Ms. Grant’s home at her request. He was taken back to Ms. Rovai’s house. The evidence that Adam’s health or behavior deteriorated during this second stay at Ms. Rovai’s home consists of doctor’s notes from one medical examination on

    July 15, 1996. The doctor did not testify at the hearing. Unexplained doctor’s notes related to one visit simply do not form a basis to conclude that Ms. Rovai’s care of Adam was inadequate.

54. Adam was not a participant in the medical foster care program while at Ms. Rovai’s house. After a short period of time Adam was reunited with his mother and remains in her care to date.

55. Since being in his mother’s care Adam has become a stronger individual. He has shown increased joint flexibility,

    more ability for independent movement with braces and crutches. He continues to have less need for acute care. Additionally, his school attendance has remained fairly good. Adam continues to demonstrate good manners. Again, the improvements in Adam’s condition are likely due to his continued maturation.

56. The evidence clearly showed that Petitioner actively assisted and cooperated with Adam's physical therapist assistant and physical therapist. Apparently the Department failed to acquaint itself with the facts of Adam's case and based its allegation of failure to cooperate on very limited and uninformative notes contained in Adam's records.

57. In July 1995 a behavior assessment by Lakeview Hospital Special Population was arranged for Adam. The first meeting with the assessor was postponed due to Adam’s ill health. Shortly after the postponement, the assessor met with Adam and viewed him at Petitioner's home. After one visit, the assessor determined that Adam did not need the help of a behavioral specialist. The assessor suggested some behavior modification techniques which Petitioner was already utilizing. Clearly, the evidence showed that Petitioner cooperated with the behavioral specialist assigned to review Adam Ingram's behavior. The evidence also showed that the Department again did not acquaint itself with the facts of Adam's case and based its conclusions about Adam's behavior on the Department's limited contacts with Adam and very limited and uninformative notes in Adam's record.

58. Adam’s attendance at school while in the care of Petitioner was less than 50 percent. In the semester of school beginning January 1994, Adam was seen only 10 times by the occupational therapist at school.

59. The other major complaint regarding Adam’s care by Petitioner centered on Adam’s poor school attendance.

60. According to competent substantial evidence provided by Adam Ingram's teacher, Vernell R. Martin, Petitioner actively sought to encourage Adam in educational activities at the Oriole Beach Elementary School. There were no staff nurses working at Oriole Beach Elementary School. The school Adam attended while living at Ms. Grant's home provided more for children with special needs. It had staff nurses and could render better medical care to Adam. He therefore could attend more often when he was not feeling well.

61. While at school, Adam would need some suctioning through the day. He also receives gastronomy feedings and various medicines through the day. Since Adam is not potty trained he requires his diapers to be changed when needed. He would receive general physical stimulation to develop his muscles and help with wearing ankle foot orthopedic supports. Physical therapy, occupational therapy and speech therapy were provided at school. However, the evidence also demonstrated that these various therapies were also provided at Petitioner’s home either by Petitioner or through other professionals. Home physical

    therapy would not continue once Adam reached a plateau or refused to participate. On the other hand, therapies received at school would continue daily or weekly as established in Adam’s Independent Educational Plan.

62. Adam was seldom sent home for medical problems at school. However, given his poor attendance, it is speculation how much he would have been sent home had he been at school.

63. On many occasions, Adam's complex medical condition prevented him from safely attending school.

64. At the beginning of the 1994 school year, Petitioner, at the Department’s suggestion, was going to arrange for Adam to ride the school bus to school and be picked up from school by Petitioner. Petitioner scrapped the school bus ride when she discovered that no air-conditioned bus was available to transport Adam. Adam had apparently become overheated and ill when he rode the first time on a non-air conditioned bus. On the other hand, while at Ms. Grant’s home, Adam was able to ride in a non-air conditioned bus over about a six month period, some of which was in hot weather. Still, Petitioner was capable of transporting Adam to school in her air-conditioned car.

65. The evidence did not demonstrate that Adam was harmed by his poor school attendance. From year to year, while in Petitioner's care, Adam achieved the educational, therapeutic, occupational, and social goals established in his Individual Educational Plan. On whole, Adam is a well-adjusted child.

    Ms. Rovai had legitimate reasons for his absences. Given this evidence, Adam's school attendance cannot form a basis for denying Petitioner's license application.

66. Finally, another issue raised for the first time at the hearing was whether Petitioner was suctioning too deep or too often. One bronchoscope indicated that the catheter used for suctioning had touched the trachea by being inserted too far into the tracheostomy. The evidence did not show that Respondent had given corrective instructions to Petitioner on either of these two points. Moreover, suctioning too deep is a common problem and does not reflect poor care or a failure to follow Departmental instructions. Finally, the type of catheter used by Petitioner to suction Adam had a stop on it to prevent too deep insertion of the catheter into the trachea. In short, neither of these late raised issues were established by the evidence and neither of these issues can form a basis for disqualifying Petitioner from receiving a foster home license.

    CONCLUSIONS OF LAW

    
    

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

68. Chapter 393, Florida Statutes, is the chapter governing the issuance of foster home licenses. Chapter 393.067, Florida Statutes, states in relevant part, as follows:

    Section 393.066, Florida Statutes, provides:

    1. The Department of Health and Rehabilitative Services shall plan, develop, organize, and implement its programs of services and treatments for persons who are developmentally disabled along district lines. The goal of such programs shall be to allow clients to live as independently as possible in their own homes or communities and to achieve productive lives as close to normal as possible.

       
       

       * * *

       
       

       (4) Community-based services shall, to the extent of available resources, include:

       
       

       * * *

       
       

       (b) Family care services.

       
       

       * * *

       
       

       (o) Other habilitative and rehabilitative services as needed.

       
       

       Section 393.067 provides:

       
       

       1. The Department shall provide through its licensing authority a system of provider qualifications, standards, training criteria for meeting standards, and monitoring for residential facilities and comprehensive transitional education programs.

          
          

       2. The Department shall conduct inspections and reviews of residential facilities and comprehensive transitional education programs annually.

       
       

       * * *

       
       

       (7) The Department shall promulgate rules establishing minimum standards for licensure of residential facilities and comprehensive transitional education programs, including rules requiring facilities and programs to train staff to detect and prevent sexual abuse of residents and clients, minimum standards of quality and adequacy of care, and uniform fire safety standards established

       by the State Fire Marshal which are appropriate to the size of the facility or of the component centers or units of the program.

       
       

69. Developmental services foster home licensing standards, promulgated by Respondent pursuant to Chapter 393, Florida Statutes, are contained in Chapter 10F-6, Florida Administrative Code. Section 10F-6.009, Florida Administrative Code, states as follows:

    1. Administration. One foster caretaker shall be designated administratively responsible for the on-going operation of the foster care facility and for carrying out the directions of assigned Department staff.

       
       

       * * *

       
       

       1. Services to Be Provided. Foster care facility services shall include, but shall not be limited to, provision of adequate living accommodations, proper and adequate dietary supervision, appropriate physical care, support, guidance supervision and assistance with training required to assure each individual the opportunity for personal growth and development. Specific services to be provided shall be defined by the needs of the clients to be served. Consideration shall be given to age, sex, developmental level and specific needs.

          * * *

          
          

       2. Staff Qualifications and Requirements.

          
          

          * * *

          
          

          (e) Foster caretaker(s) shall be of suitable physical and mental ability to care for the client(s) they propose to serve; have knowledge of the needs of the client(s); be capable of handling an emergency situation promptly and intelligently; and be willing to cooperate with the supervisory emergency

          situation promptly and intelligently; and be willing to cooperate with the supervisory staff.

          
          

          * * *

          
          

       3. Foster Caretaker(s) Responsibilities.

       
       

       * * *

       
       

       1. To create a congenial and homelike atmosphere within the community residence.

       2. To plan, supervise and/or prepare nutritious meals.

       3. To be supportive of each client in developing attitudes and behaviors appropriate to community living.

       4. To be supportive of and encourage each client's participation in the day training/vocational program prescribed.

       5. To be supportive of each client in developing those skills necessary to ensure his/her independence within his/her scope of competence in the community (i.e., budget management, planning and preparing meals, housecleaning, personal grooming and hygiene).

       
       

       * * *

       
       

       (i) To participate in the annual reassessment of each client as requested by district staff and cooperate with the Department in implementing the habilitation plan.

       
       

       * * *

       
       

       1. Client Life in a Foster Care Facility.

          
          

          1. The treatment of clients shall be individualized, appropriate to differences in personal goals, abilities, age and circumstances.

          2. Each client shall receive adequate and appropriate attention each day from the foster caretaker(s) regardless of the client's chronological age, degree of retardation, or accompanying handicaps.

          * * *

          
          

       2. Training for Clients.

       
       

       1. The foster caretaker(s) shall reinforce the implementation of the client's habilitation plan.

       2. The foster caretaker(s) shall be supportive of the client in exercising maximum independence in the following areas:

       
       

       1. Self-care skills.

       2. Daily living skills.

       3. Social skills.

       4. Communication skills.

       5. Recreational opportunities and the use of leisure time.

       6. Motor skills.

       7. Basic knowledge.

       8. Community resource utilization.

       9. Work habits.

       
       

       * * *

       
       

       (16) Discipline and Abuse. Each client shall receive humane discipline in accordance with the Client Behavior Management Rules, 10F-4.009, F.A.C.

       
       

70. A medical designation or endorsement may be added to a foster care license authorized under Chapter 393 (developmental disabilities) or Chapter 409 (dependency), Florida Statutes. No administrative rules have been promulgated for the medical foster care designation. The lack of specific rules for the medical foster care designation is questionable given the requirements of Chapter 120, Florida Statutes.

71. The August 21, 1996, licensure denial letter cites specific reasons for denying Petitioner's licensure application. The reasons are grouped into two main categories with specific violations within each category.

72. The first reason relates to Petitioner's alleged failure to provide assistance with training required to assure the foster child the opportunity for personal growth and development. Rule 10F-6.009(4),(6)(d) and (e), Florida Administrative Code. Specific violations cited in the letter related to Petitioner's alleged refusal to cooperate with the physical therapist and Petitioner's refusal to allow a behavior therapist to work with Adam. Neither of these specific allegations was established by the evidence in this case. Indeed the greater weight of the evidence demonstrated that Petitioner actively assisted and participated in Adam's therapies. Thus, these reasons cannot form a basis for denying Petitioner a foster home license.

73. The second reason for denying Petitioner's licensure application relates to Petitioner's alleged unwillingness to cooperate with departmental or supervisory staff, lack of cooperation and follow through on goals included in the child's plan of care, and failure to reinforce implementation of the child's habilitation plan. Rule 10F-6.009 (4) and (6)(a), (e),

    (i) and (l). Specific violations included Petitioner's failure to send Adam to school on a regular basis, which had the effect of denying Adam access to recommended therapy, socialization, and educational opportunities; failure to cooperate with and/or facilitate development of a respite plan; insistence on skilled nursing services which were not justified by the medical needs of

    the child or when other interventions would have been more appropriate; the use of an extraordinary amount of skilled nursing hours due to Petitioner's alleged failure to develop a system for respite; refusal to share pertinent information regarding the child's birth family's participation in Adam's care; and refusal to implement a behavioral training program.

74. None of these specific violations was established by the evidence. The evidence showed that Adam's chronic absence from school was due in large part to his poor health. Adam consistently achieved the goals set out in his Independent Educational Plan. In any event, the lack of school attendance was not shown to be significantly related to the child's overall physical, mental, or social growth. Adam was a fairly well- adjusted, intelligent child. The evidence also showed that Adam did not need a specially created behavior training program beyond what Petitioner was already employing on Adam. Adam simply matured over the years and began to behave better. Thus, these violations cannot serve as a basis for denying Petitioner's application for licensure as a foster home.

75. The need for respite care was due to the fact that, unlike other medically complex children in the area, Adam was very active in addition to requiring a high level of medical care. The Department's problem was with the lack of funding available for such respite care. The Petitioner generally had valid reasons for not utilizing the informal respite systems

    among the foster parents. Petitioner also tried to develop a plan of respite care by developing a network of providers who had the requisite skills needed to take care of Adam. The hoped-for providers never materialized for various reasons unrelated to Petitioner. Petitioner often aggressively fought for the best care for Adam. However, she should not be faulted for being concerned about the quality of care Adam received from the Department. One role of the foster parent is to advocate for the foster child. Silence on the part of the foster parent is not a desirable alternative. The Department's responsibility is to say no when it cannot afford the requests of a foster parent or those requests are not funded. Again these reasons cannot form a basis for denying Petitioner's licensure application.

76. As admitted by Respondent, except for the reasons specified in Respondent's August 21, 1996, letter denying Petitioner's application, Petitioner was qualified to be granted a license as a developmental services foster care provider.

77. Petitioner has the burden to establish by a preponderance of the evidence that she is entitled to a foster home license. Osborne Stern and Co. vs. Department of Banking and Finance, 647 So. 2d 932 (Fla. 1996). In this case, Petitioner has established that she is qualified to receive a foster home license. Therefore, Petitioner's application for licensure as a foster home pursuant to Chapter 393, Florida Statutes, should be granted.

RECOMMENDATION

Based upon the findings of fact and conclusions of law, it

is

RECOMMENDED:

That the application of Petitioner be GRANTED.

DONE AND ENTERED this 5th day of December, 1997, in

Tallahassee, Leon County, Florida.

DIANE CLEAVINGER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 5th day of December, 1997.

COPIES FURNISHED:

Matthew D. Bordelon, Esquire Bordelon and Bordelon, P.A. 2717 Gulf Breeze Parkway Gulf Breeze, Florida 32561

Rodney M. Johnson, Esquire Department of Health

1295 West Fairfield Drive Pensacola, Florida 32501

Katie George, Esquire Department of Children

and Family Services Suite 601

160 Governmental Services Pensacola, Florida 32501

Gregory D. Venz, Agency Clerk Department of Children

and Family Services Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Richard A. Doran, Esquire Department of Children

and Family Services Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of 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: 96-004345

Orders for Case No: 96-004345