STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MILTON TAYLOR, )

)

Petitioner, )

)

vs. ) Case No. 99-0217

) DEPARTMENT OF CHILDREN AND ) FAMILY SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

On August 20-21, 1999, a formal administrative hearing was held in this case in Largo, Florida, before William R. Pfeiffer, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Milton Taylor

15710 Herman Street

Clearwater, Florida 33760

For Respondent: Laura Smith, Esquire

Department of Children and Family Services

11351 Ulmerton Road, Suite 100

Largo, Florida 33778-1630 STATEMENT OF THE ISSUE

The issue presented was whether the Department of Children and Family Services was justified in terminating the provider's certification in accordance with Florida Administrative Code, Chapter 65B-11.

PRELIMINARY STATEMENT

By letter dated November 3, 1998, the Department informed Petitioner of the termination of his Home and Community-Based Services/HCBS Medicaid Waiver certification. The termination was based on Petitioner's continual noncompliance with requirements necessary for certification as a supported living coach.

Petitioner timely requested an appeal. The original hearing was scheduled for May 11, 1999, but was continued twice at the request of Petitioner and once, based on a conflict for the Administrative Law Judge.

At the hearing Respondent presented the testimony of Bob Calhoun, Program Administrator, Developmental Services; and Nancy Weeks, Senior Human Services Program Specialist. Petitioner presented the testimony of Terri McGarrity, Department of Children and Families; Lynnmarie Tamblyn; Bob Calhoun, Program Administrator, Developmental Services; Pati Anderson, Operations and Management Consultant II; and Nancy Weeks, Senior Human Services Program Specialist, as well as testimony on his own behalf. Both parties were given the opportunity to cross-examine the witnesses. Respondent's Exhibits 1-7 were admitted and Petitioner's Exhibits 1-4 and 6-8 were admitted. The Transcript was filed with the Division of Administrative Hearings on November 8, 1999.

FINDINGS OF FACT

1. The Department of Children and Family Services is the state agency responsible for certification and regulation of supported living coaches, pursuant to Florida Administrative Code, Chapter 65B-11.

2. Petitioner was issued by Respondent, a Home and Community-Based Waiver Services Provider Certificate for Supported Living Coaching.

3. Petitioner was provided information which gave him the specific requirements of a supported living coach which Petitioner acknowledged. Petitioner was offered assistance and training but did not take advantage of the support.

4. Petitioner was given notice by letter that an unannounced monitoring would occur within the week of April 13- 17, 1998, and two self-assessment monitoring checklists were included to be completed in order to be reviewed at the monitoring visit.

5. The self-assessment checklists were not completed. On April 15, 1998, the monitors reviewed the information that was available and determined all 30 citations were unmet.

6. Petitioner was informed of the deficiencies by letter dated April 17, 1998, and was given the opportunity to submit a Quality Improvement Plan (QIP). He was also informed that a follow-up visit would occur within 60 days of the acceptance of the QIP.

7. Petitioner submitted his QIP by letter dated April 29, 1998, and did not dispute any of the findings of the monitors' report. The QIP was approved on May 22, 1998.

8. On August 6, 1999, the monitors conducted a follow-up monitoring visit to determine if the QIP had been successfully implemented to bring Petitioner into compliance with the requirements of Florida Administrative Code Chapter 65B-11. The monitors appropriately determined that Petitioner was significantly out of compliance with 14 of the 30 citations unmet.

9. By letter dated August 18, 1998, Petitioner was informed of his noncompliance and a moratorium from accepting new clients was placed on him in accordance with Florida Administrative Code Chapter 65-11.011. Petitioner was given the opportunity to submit a second QIP which had to be implemented within 30 days of its acceptance.

10. Petitioner again submitted a QIP and again did not dispute any of the findings of the monitors' report.

11. On October 23, 1998, the monitors conducted a second follow-up visit to determine if the second QIP had been successfully implemented.

12. Again, Petitioner was significantly in noncompliance with 13 citations unmet.

13. The Department informed Petitioner by letter dated November 3, 1998, of the noncompliance and of the termination of his certification as a supported living coach.

14. Although Petitioner generally alleged at the hearing that he received disparate treatment by the Department, no reliable evidence was presented to support his claim.

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties pursuant to Section 120.57(1), Florida Statutes, and Chapter 65B-11.013, Florida Administrative Code.

16. Chapter 65B-1.010(4), Florida Administrative Code, in pertinent part states". . . Providers must comply with all assurances specified in the application."

17. Chapter 65B-11.011, Florida Administrative Code, Annual Survey and Renewal of Certification provides:

    1. The district developmental services program office shall conduct an annual unannounced survey of each supported living coaching and personal assistance provider to monitor compliance with the requirements of this rule, including all items covered in the provider's application for certification.

    2. A survey report shall be completed within thirty (30) calendar days after the survey and a copy shall be forwarded to the provider within three (3) working days of the report's completion.

    3. When the survey determines that the provider is in compliance with the requirements of this rule, the district developmental services program office shall issue a certification that will be valid for no more than one (1) year.

    4. When it is determined through the survey, or otherwise comes to the attention of the district developmental services program office, that a provider is out of compliance with the requirements of this rule, the provider shall be required to develop a plan of correction, which must be accepted by the district developmental services program office before its implementation. This corrective action plan must be submitted to the district developmental services program office within ten (10) working days after the provider is notified of the unsatisfactory rating by means of the survey monitoring report.

    5. Within sixty (60) calendar days after

       acceptance of the corrective action plan, district developmental services program office staff shall revisit the provider to determine if the plan has been successfully implemented to bring the provider into compliance with the requirements of this rule. If the provider is determined to be in compliance at the time of this visit, the district developmental services program office shall issue a certification to provide services that will be valid for no more than one (1) year.

    6. If the provider is still found to be out of compliance with the requirements of this rule, a moratorium shall be imposed on referrals of individuals to the provider and the provider shall be notified of the moratorium in writing within ten (10) working days after completion of the monitoring visit. This notification shall also inform the provider of the need to develop a second corrective action plan to address continuing deficits.

    7. The second corrective action plan must be submitted to the developmental services program office within ten (10) working days after the provider receives notification. The plan must be implemented within thirty

       (30) calendar days of its acceptance by the district developmental services office, which shall conduct follow-up monitoring as necessary to verify the provider's compliance. If monitoring determines that deficiencies have been corrected, the

       provider shall be issued a certification to provide services that shall be valid for no more than one (1) year.

       Specific Authority 393.501(1) FS.

       Law Implemented 393.066 FS, 42 USC 1396u. History--New 1-18-95, Formerly 10F-11.011.

       
       

18. Chapter 65B-11.013, Florida Administrative Code, Termination of Provider Certification, in pertinent part provides:

    1. If a provider fails to fully correct continuing deficits as identified in Rule 65B-11.011(6), F.A.C., within thirty (30) calendar days after notice, the district developmental services program office shall terminate the provider's certification.

* * *

1. The district developmental services program office shall notify the provider of the proposed termination of the provider's certification in writing by certified mail and shall provide a copy to the state developmental services program office. The written notice shall include the reason(s) for termination and a statement of the provider's right to an administrative hearing in accordance with Chapter 120, F.S., provided the hearing is requested within twenty (20) calendar days. The termination shall be effective on the twenty-first (21st) day after issuance of the notice unless a hearing is requested.

   
   

2. Any provider who voluntarily wishes to terminate certification shall notify the district developmental services program office in writing at least thirty (30) calendar days prior to the anticipated termination date. Within three (3) working days of receipt, the district developmental services program office shall send a copy of the provider's termination notice to the state developmental services program office.

3. Individuals receiving supported living services from a provider whose certification

   is suspended or pending termination shall be notified of the pending change. They shall be advised of their right to continue receiving services from another certified provider and shall be assisted in the selection of a new provider.

4. The district developmental services program office shall maintain a list of providers willing to temporarily provide services to the individuals of providers whose certifications are suspended or terminated.

1. The Department followed the mandates of the Florida Administrative Code in monitoring and terminating Petitioner's certification as a supported living coach. Petitioner was noticed on April 17, 1998, that he was not compliant with the requirements of a certified supported living coach, requirements to which he signed assurances to maintain every day as a supported living coach.

2. On October 23, 1998, five months after the first monitoring visit, Petitioner continued to be out of compliance with these clear requirements.

3. Petitioner was given significant opportunity and more time than the rules required to become compliant and he was unsuccessful. Petitioner offered no evidence or testimony that the Department acted improperly in its actions to terminate his certification and in fact never complained of any actions of the Department until notice of the termination.

4. The Department's action to terminate Petitioner's certification as a support living coach is appropriate.

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 terminating Milton Taylor's Home and Community Based Services/HCBS Medicaid Waiver certification.

DONE AND ENTERED this 21st day of January, 2000, in Tallahassee, Leon County, Florida.

WILLIAM R. PFEIFFER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 21st day of January, 2000.

COPIES FURNISHED:

Laura Smith, Esquire Department of Children

and Family Services

11351 Ulmerton Road, Suite 100

Largo, Florida 33778-1630

Milton Taylor

15710 Herman Street

Clearwater, Florida 33760

Samuel C. Chavers, Acting Agency Clerk Department of Children

and Family Services Building 2, Room 204

1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

John S. Slye, General Counsel 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: 99-000217

Orders for Case No: 99-000217