STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SUSAN DOS SANTOS,

Petitioner,

vs.

DEPARTMENT OF CHILDREN AND FAMILY SERVICES,

Respondent.

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) Case No. 02-0072

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RECOMMENDED ORDER

A hearing was held pursuant to notice in the above-styled cause before Stephen F. Dean, assigned Administrative Law Judge of the Division of Administrative Hearings, on August 23, 2002, in Jacksonville, Florida.

APPEARANCES

For Petitioner: Susan Dos Santos

2472 Glade Spring Drive Jacksonville, Florida 32246

For Respondent: Robin Whipple-Hunter, Esquire

Department of Children and Family Services

Post Office Box 2417 Jacksonville, Florida 32231-0083

STATEMENT OF THE ISSUES

The parties stipulated that but for the grounds stated in Respondent's letter of denial, Petitioner was qualified for certification as an independent direct service provider.

The issues are whether Petitioner failed to consistently follow through on arranging support coordination services for clients of the developmental disabilities program, and whether this constitutes ground of denial under unadopted rules of Respondent.

PRELIMINARY STATEMENT

This matter began on October 15, 2001, when Respondent, Department of Children and Family Services, advised Petitioner, Susan Dos Santos, that her application for enrollment as an independent support coordinator had been denied on the ground that she failed to consistently follow through on arranging support coordination services for clients of the developmental disabilities program while employed as a treating provider.

Thereafter, Petitioner requested a formal hearing to contest Respondent's proposed decision. Respondent then forwarded the matter to the Division of Administrative Hearings for consideration through a formal hearing pursuant to Section 120.57(1), Florida Statutes.

The parties stipulated that, but for the grounds stated in the letter of denial, Petitioner was qualified for certification. Therefore, the only issues are whether she failed to consistently follow through on arranging support coordination for clients and whether that constitutes grounds for denial.

At hearing Petitioner testified on her own behalf.

Respondent presented the testimony of Gayle Granger, Medicaid Waiver Coordinator for District IV, Department of Children and Family Services. Also, Respondent offered Respondent's Exhibits numbered 1 through 11. All exhibits were received into evidence. Official recognition was taken of Chapter 393, Florida Statutes, Chapter 65-B, Florida Administrative Code, and

42 C.F.R. Section 441.300, et seq.

Petitioner filed proposed findings on August 29, 2002.

Respondent filed a Proposed Recommended Order on September 6,

2002.

FINDINGS OF FACT

1. Petitioner, Susan Dos Santos, applied for certification as in independent direct service provider to persons with developmental disabilities.

2. Respondent, Department of Children and Family Services, is authorized pursuant to Chapter 393, Florida Statutes, to regulate the provision of services to the developmentally disabled and to certify persons who are direct service providers and independent support coordinators.

3. Respondent and Petitioner stipulated at hearing that, except for the reasons set forth in Respondent's letter denying Petitioner's certification, Petitioner was qualified for certification.

4. The grounds stated in the letter of denial were that Petitioner consistently failed to follow through on arranging support coordination services for her clients while employed as a treating provider.

5. Evidence was presented that the records of Petitioner's work for her employer with developmentally disabled persons were reviewed pursuant to an unadopted rule of Respondent and Petitioner's work performance failed to meet the criterion established by an unadopted rule of Respondent for completeness and thoroughness. It was on this basis that Respondent denied the application of Petitioner.

6. Petitioner testified in her own behalf. She did not know that her work was subject to review for purposes of certification and did not know about the standards of review. None of her clients ever failed to have services provided, although she did refuse to meet with one client who was assigned to another counselor with whom she had had a prior physical altercation.

7. No information reflecting adversely on the good character of Petitioner was introduced.

   CONCLUSIONS OF LAW

   
   

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

9. This case arises upon the denial by Respondent of an application by Petitioner for certification as an independent direct service provider. Respondent admits that it has not promulgated rules for certifying direct service providers and took the instant action upon the basis of standing policies of Respondent.

10. First, the authority under which Respondent claims to have adopted its unadopted rule, Section 393.501, Florida Statutes, states emphatically that the agency shall adopt rules to implement the chapter. This authority was granted in 1992. Ten years later, Respondent has not adopted formal rules regarding certification of direct service providers. A search of the records of the Division of Administrative Hearings reveals that this is the first case to arise regarding the application of these unadopted rules; therefore, this failure, per se, is not grounds to invalidate the unadopted rule. However, the matter having arisen, there is no excuse for Respondent's further delay in adopting rules to implement the provisions of Chapter 393, Florida Statutes, regarding the certification of direct service providers or independent support coordinators.

11. Section 120.57(1)(e), Florida Statutes, provides that:

    
    

    (e)1. Any agency action that determines the substantial interests of a party and that is

    based on an unadopted rule is subject to de novo review by an administrative law judge.

    1. The agency action shall not be presumed valid or invalid. The agency must demonstrate that the unadopted rule:

       1. Is within the powers, functions, and duties delegated by the Legislature or, if the agency is operating pursuant to authority derived from the State Constitution, is within that authority;

       2. Does not enlarge, modify, or contravene the specific provisions of law implemented;

       3. Is not vague, establishes adequate standards for agency decisions, or does not vest unbridled discretion in the agency;

       4. Is not arbitrary or capricious;

       5. Is not being applied to the substantially affected party without due notice;

       6. Is supported by competent and substantial evidence; and

       7. Does not impose excessive regulatory costs on the regulated person, county, or city.

          
          

12. With regard to the legal issue of the validity of the unadopted rule, the agency bears the burden of proof. The agency must show the unadopted rule complies with all of the above provisions. The agency must show the validity of the unadopted rule by substantial and competent evidence.

13. The unadopted rule does not comply with the provisions of Section 120.57(1)(e), Florida Statutes, in several respects. It enlarges unduly the specific provisions of the law implemented. It fails to place persons potentially impacted by

    its provisions on notice of the standard to which they will be held. And, Respondent has not supported its authority to enforce the unadopted rule by substantial and competent evidence.

14. Respondent bases its authority for the unadopted rule upon the language of Section 393.063(45), Florida Statutes, defining "Screening." Section 393.063(45), Florida Statutes, states that screening means the act of assessing the background of direct service providers and independent support coordinators. However, the criteria for "assessing the background" are not stated.

15. Our primary guidance for what to look at in assessing the background of applicants is contained in the last sentence of Section 393.062, Florida Statutes, which states, "Finally, it is the intent of the Legislature that all caretakers unrelated to individuals with developmental disabilities receiving care shall be of good moral character."

16. Respondent's unadopted rule at issue here permits Respondent to examine the work product of an employee of a contracting provider and grade the performance of said employee in determining whether Respondent will certify the employee as a direct service provider or independent support coordinator. Respondent specifically bases this authority upon the language contained in Section 393.063(45), Florida Statutes, "assessing

    the background . . . and includes, but is not limited to, employment history checks . . . [.]

17. Respondent's position is that this opens the door for it to look at work performance as a criterion for certification.

18. Where the primary issue is good moral character, the grading of work product is far beyond an employment history check which is typically limited to the dates of employment, employer's assessment of the employee's performance, reasons for leaving employment and re-employment eligibility. While such inquiries address matters beyond good moral character, they are reasonable in terms of investigating the character of the applicant. There is nothing, however, in the chapter that authorizes an examination of the work performance of an applicant as a criterion for certification, and the unadopted rule constitutes an undue enlargement of the provisions of the law implemented.

19. The facts reveal that Respondent looks at the work product of an applicant and grades that work product based upon standards related to completeness and correctness contained in its policies which are unpublished, as is the fact that this assessment is part of the criteria for certification. Because it is an unadopted rule, it does not fairly apprise persons subject to the rule of the level of performance to which they must perform their duties for their employer. Further, because

    the rule is unadopted, the employee does not know that this is a criterion for certification. In both regards, the unadopted rule is being applied without substantial notice to persons who are adequate affected by the rule.

20. Having found the unadopted rule does not meet the statutory criteria for validity upon review, there is no basis to deny Petitioner. Pursuant to the stipulation of the parties, Petitioner otherwise met the other criteria for certification.

RECOMMENDATION

Based on the foregoing Findings of Facts and Conclusions of Law, it is

RECOMMENDED that Respondent certify Petitioner.

DONE AND ENTERED this 17th day of September, 2002, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

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 17th day of September, 2002.

COPIES FURNISHED:

Susan Dos Santos

2472 Glade Spring Drive Jacksonville, Florida 32246

Robin Whipple-Hunter, Esquire Department of Children

and Family Services Post Office Box 2417

Jacksonville, Florida 32231-0083

Paul F. Flounlacker, Jr., Agency Clerk Department of Children

and Family Services 1317 Winewood Boulevard Building 2, Room 204B

Tallahassee, Florida 32399-0700

Josie Tomayo, General Counsel Department of Children

and Family Services 1317 Winewood Boulevard

Building 2, Room 204

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: 02-000072

Orders for Case No: 02-000072