STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF CHILDREN )

AND FAMILY SERVICES, )

)

Petitioner, )

)

vs. ) Case No. 97-3536C

)

1. R., )

   )

   Respondent. )

   )

   
   

   RECOMMENDED ORDER

   
   

   This cause came on for formal hearing before Suzanne F. Hood, Administrative Law Judge with the Division of Administrative Hearings, on November 10, 1997, in Bristol, Florida.

   APPEARANCES

   
   

   For Petitioner: John R. Perry, Esquire

   Department of Children and Family Services

   Suite 252-A

   2639 North Monroe Street Tallahassee, Florida 32399-2949

   
   

   For Respondent: T. R. pro se

   
   

   STATEMENT OF THE ISSUE

   
   

   The issue is whether Petitioner properly denied Respondent's request to amend or expunge FPSS Report Number 97-025819.

   PRELIMINARY STATEMENT

   
   

   On July 7, 1997, Petitioner Department of Children and Family Services (Petitioner) denied the request of Respondent

   1. (Respondent) to expunge Abuse Report No. 97-025819. Respondent requested an administrative hearing to contest the this denial by letter dated July 17, 1997. Petitioner referred Respondent's request to the Division of Administrative Hearings on August 4, 1997.

      The undersigned issued a Notice of Hearing scheduling this matter for hearing on November 10, 1997. During the hearing, Petitioner presented the testimony of one (1) witness and offered two (2) exhibits which were accepted into evidence. Respondent testified on her own behalf. Respondent presented the testimony of one (1) witness and offered one (1) exhibit into evidence.

      The parties did not file a copy of the transcript with the Division of Administrative Hearings. Petitioner filed a Proposed Recommended Order on November 17, 1997.

      FINDINGS OF FACT

      
      

      1. Liberty Intermediate Care Facility ("LICF" or "Liberty ICF") is a residential facility which provides care, shelter, and sustenance to developmentally disabled adults.

      2. From time to time, certain residents at Liberty ICF require "one-on-one" supervision. In that circumstance, one staff member is assigned to look after only one resident. The staff member must maintain eye contact with the resident and must keep the resident within arm's reach at all times.

      3. During March 1997, Respondent provided direct care to developmentally disabled adult residents at Liberty ICF in her capacity as a Direct Care Instructor.

      4. On March 6, 1997, Respondent was assigned one-on-one supervision of M.H., a developmentally disabled adult resident of the LICF. M.H. was known to leave the facility and to commit acts of physical self-abuse, such as head banging, if he was not carefully monitored. M.H. suffers from mental limitations which substantially restrict his ability to perform the normal activities of daily living. At the time of this assignment, Respondent was aware of M.H.'s propensities.

      5. At around 3:00 p.m. on the afternoon of March 6, 1997, as Respondent was performing this supervision, M.H. was asleep on his bed, while Respondent was sitting on the chair next to the bed.

      6. When M.H. awoke, Respondent gave him some gummy bears.

         
         

         M.H. then accepted the gummy bears, went to the window, and stared outside. Respondent then sat down in the chair beside the bed and went to sleep.

      7. While Respondent was sleeping M.H. left the room and exited the building. Another staff member observed M.H.'s departure. Behavioral Program Specialist Cathy Buchanon entered M.H.'s room, woke Respondent, and asked her where M.H. was. Respondent stated that she did not know where he was. Respondent

         and Ms. Buchanan left the building and found M.H. in the parking lot.

         CONCLUSIONS OF LAW

         
         

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

      9. For the purposes of this proceeding, the term "caregiver" means a person who has been entrusted with or has assumed the responsibility for the frequent and regular care of or services to a disabled adult or an elderly person on a temporary or permanent basis and who has a commitment, agreement, or understanding with that person or that person's guardian that a caregiver role exists. Section 415.102(4), Florida Statutes. For the purposes of this proceeding, the term includes employees of facilities providing residential care to disabled adults or elderly persons.

      10. It is clear from the admissions made by Respondent that she was a caregiver to M.H.

      11. For the purposes of this proceeding, the term "disabled adult" means a person eighteen (18) years of age or older who suffers from a condition of physical or mental incapacitation due to a developmental disability, organic brain damage, or mental illness, or who has one or more physical or mental limitations that substantially restrict the ability to perform the normal

          activities of daily living. Section 415.102(10), Florida Statutes.

      12. By her own admission, Respondent has conceded that M.H. meets the definition of a disabled adult.

      13. For the purpose of this proceeding, the term "neglect" means the failure or omission on the part of the caregiver to provide the care, supervision, and services necessary to maintain the physical and mental health of the disabled adult or elderly person, including, but not limited to, food, clothing, medicine, shelter, supervision, and medical services, that a prudent person would consider essential for the well-being of a disabled adult or an elderly person. The term can also mean a single incident of carelessness which produces or could reasonably be expected to result in serious physical or psychological injury or substantial risk of death. Section 415.102(20), Florida Statutes.

      14. M.H. has a propensity for escaping from the facility and for acts of physical self-abuse, such as banging his head. This propensity was pronounced enough that the facility ordered one-on-one supervision to ensure that he did not come to harm.

      15. Respondent was aware of this propensity and the attendant risks when she undertook the responsibility of supervising M.H. Instead of performing this duty Respondent literally fell asleep on the job.

      16. Although M.H. was unharmed, the risks he faced of abusing himself or walking into traffic, are clearly evident from

the circumstances. Respondent was only asleep for one or two minutes. During that brief period of time, she placed her charge in a position of extreme danger. As such, she has unquestionably committed neglect.

RECOMMENDATION

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

RECOMMENDED:

That the Department of Children and Family Services enter a Final Order retaining as confirmed the report of adult neglect naming Respondent as perpetrator.

DONE AND ENTERED this 21st day of November, 1997, in Tallahassee, Leon County, Florida.

SUZANNE F. HOOD

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 21st day of November, 1997.

COPIES FURNISHED:

John R. Perry, Esquire Department of Children

and Family Services Suite 252-A

2639 North Monroe Street Tallahassee, Florida 32399-2949

T. R.

(address of record)

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: 97-003536

Orders for Case No: 97-003536