This case is before the Agency for Persons with Disabilities (“Agency” or “Petitioner”) for entry of a Final Order concerning the Agency’s revocation of Hidden Havens Group Home’s (“Hidden Havens” or “Respondent”) license to operate as a group home facility.
On October 6, 2020, an Administrative Law Judge ("ALJ") of the Division of Administrative Hearings (“DOAH”) conducted an administrative hearing with both parties and their witnesses attending via video teleconference. The ALJ issued a Recommended Order on December 7, 2020. A copy of the Recommended Order is
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attached to this Final Order as Exhibit A. Neither party filed exceptions to the Recommended Order.
As explained in the Recommended Order, Jonathan Pavia and Serena Ray live across the street from Hidden Havens. Mr. Pavia and Ms. Ray testified that on December 11, 2019, they observed a staff member of Hidden Havens yell and curse at the occupants of a van in the driveway of the facility. Recommended Order at ¶ 4. The incident was captured by Mr. Pavia’s “Ring” doorbell, video from which was introduced into evidence. Id. at ¶ 5.
Veronica Hodges is the chief executive officer of Sunnyskies Support Services, Inc., which owns and operates Hidden Havens. Ms. Hodges was not present on the date in question and offered no witness to testify about the incident. Id. at ¶ 6.
The ALJ concluded that the totality of the evidence supports a finding that at least one Hidden Havens resident was in the van and that the staff person was yelling and cursing at the resident to get out of the van. Id. at ¶ 7.
On February 24, 2020, Mr. Pavia and Ms. Ray observed staff unloading residents from the facility transport van parked in the driveway. In addition to observing staff yelling and cursing at the van’s passenger, both Mr. Pavia and Ms. Ray testified that they saw the staff member put her hands on a resident and physically remove the resident from the van, whereupon the resident fell to the
ground, landing on the concrete walkway on her hands and knees. Id. at ¶ 10. Ms. Ray recorded part of the incident on her cell phone. Id. at ¶ 11.
Ms. Hodges was not present on the date in question and offered no witness to testify about the incident. Id. at ¶ 13. Ms. Hodges denied that the resident was injured in the incident but admitted that if the resident were dragged out of the van as described by the witnesses, that would be inappropriate treatment of the resident. Id. at ¶ 14.
Later that same day, Ms. Ray witnessed and recorded a video of a staff member struggling with a resident on the front porch to remove something from the resident’s hands. Id. at ¶ 17. The staff person eventually took the object and put it in her pocket while the resident is crying and visibly upset. Id.
Ms. Hodges was not present at Hidden Havens when the incident occurred and offered no witness testimony regarding the incident. Id. at ¶ 20. Ms. Hodges testified that the resident had the “house phone” and was making a false call to the police, which is why the staff person was taking the phone from her. Id. Even if this were true, the ALJ found, staff had a more appropriate, professional way to deal with the situation than literally wrestling the phone away from the resident and upsetting her. Id. at ¶ 21.
Ms. Ray was so upset by this incident and others that she called the police, who interviewed the resident and staff. Id. at ¶ 19. Ms. Hodges admitted at the final
hearing that she did not consider the staff’s actions observed on the videotape to be appropriate treatment of the resident. Id. at ¶ 21.
In response to the police incident, the Agency sent human services program analyst Carol Gilchriest to Hidden Havens for a health and safety check. Id. at ¶ 22. During the health and safety check, Ms. Gilchriest observed one resident in her wheelchair with a bruise on her left cheek, bruising under her right eye, and a cut on her right hand. Id. at ¶ 23. This resident was unable to communicate the cause of her injuries to Ms. Gilchriest. Id.
Ms. Gilchriest also observed another resident with a bruise on her left cheek and bruising under her right eye. Id. at ¶ 24. This resident is also non-verbal and was unable to communicate to Ms. Gilchriest the cause of her injuries. Id. at ¶ 24. The ALJ found Ms. Gilchriest’s testimony is credible. Id. at ¶ 26.
Andrea Howell is a human services program analyst for the Agency assigned to monitor Hidden Havens since 2017. Id. at ¶ 27. On January 10, 2020, Ms. Howell made an unannounced inspection at Hidden Havens. Id. at ¶ 28.
Ms. Howell witnessed the facility’s transport van as it was unloading residents. Id. One resident exited the van and urinated on herself in the driveway, then walked into the house and removed all of her clothing. Id. at ¶ 29. The resident then stood naked in a common area of the house in front of a window with the blinds
open. Id. Ms. Howell observed that none of Hidden Havens’ staff interacted with this resident to redirect her. Id.
Ms. Howell also observed a different resident of the house remove her shirt and sit in her wheelchair in the common area of the house. Id. at ¶ 30. The resident then began hitting herself in the face, making loud noises and appearing to be upset. Id. This resident’s Agency-approved support plan requires intervention when the resident engages in self-injury. Id. at ¶ 34. Ms. Howell observed that, again, no staff members intervened to prevent this resident from hurting herself. Id. at ¶ 30.
Ms. Hodges testified that she has been unable to obtain behavioral services for the resident described in paragraph 14 of this Order and therefore her staff is limited in their efforts to intervene when the resident engages in self-harm. Id. at ¶
33. Ms. Howell testified that, during prior inspections of Hidden Havens, she observed staff intervening by directing the resident to the television or offering her a snack. Id. at ¶ 35.
On or about February 14, 2019, the Agency issued a Regional Operations Manager (“ROM”) letter to Respondent regarding violations identified by Agency monitors on November 23, 2018; December 27, 2018; January 3, 2019; and January 25, 2019. Id. at ¶ 39. The ROM letter identified violations of background screening requirements, medication administration, and client funds accounting. Id. ROM letters require the recipient/licensee to create and submit a corrective action plan
(“CAP”) within 15 days of receipt that details how the violations will be corrected.
Id. at ¶ 37.
Respondent submitted a CAP that did not sufficiently address the violations and the Agency issued two more follow-ups detailing the items that were insufficient and what was needed to complete the CAP. Id. at ¶ 40. After an extended period, Respondent submitted a sufficient CAP but Agency staff noted that no meaningful improvements were ever made at the residence. Id.
The Agency issued separate notices of noncompliance, which are comparable to ROM letters but for less serious violations, to Respondent on or around April 1, 2019; April 19, 2019; and December 18, 2019. Id. at ¶ 41 – 43. Respondent did not submit any CAP relating to the April 1, 2019 notice of noncompliance; did not timely submit a CAP relating to the April 19, 2019 notice of noncompliance; and did not submit a complete CAP relating to the December 18, 2019 notice of noncompliance. Id.
The ALJ ultimately found that “[the Agency] has proven the allegations of the Administrative Complaint by clear and convincing evidence, and has established grounds for revocation of Respondent’s group home license.” Id. at ¶ 69.
LEGAL STANDARD FOR RECOMMENDED ORDERS
An agency has limited authority to overturn or modify an ALJ’s findings of fact. See, e.g., Heifetz v. Dep’t of Bus. Regulation, 475 So. 2d 1277, 1281 (Fla. 1st
DCA 1985) (reasoning that “[i]t is the hearing officer's [or ALJ’s] function to consider all the evidence presented, resolve conflicts, judge credibility of witnesses, draw permissible inferences from the evidence, and reach ultimate findings of fact based on competent, substantial evidence.”); see also Gross v. Dep't of Health, 819 So. 2d 997, 1000–01 (Fla. 5th DCA 2002); Holmes v. Turlington, 480 So. 2d 150, 153 (Fla. 3rd DCA 1985). The Agency is not authorized to “weigh the evidence presented, judge the credibility of witnesses, or otherwise interpret the evidence to fit its desired ultimate conclusion.” Bridlewood Group Home v. Agency for Persons with Disabilities 136 So. 3d 652, 658 (Fla. 1st DCA 2013) (quoting Heifetz, 475 So. 2d at 1281). In addition, it is not proper for the Agency to make supplemental findings of fact on an issue about which the ALJ made no finding. See Florida Power & Light Co. v. State of Florida, Siting Board, et al., 693 So. 2d 1025, 1026 (Fla. 1st DCA 1997).
Section 120.57(1)(l), Florida Statutes provides the following with respect to modifying findings of fact and conclusions of law in a Recommended Order issued by an ALJ:
The agency may adopt the recommended order as the final order of the agency. The agency in its final order may reject or modify the conclusions of law over which it has substantive jurisdiction and interpretation of administrative rules over which it has substantive jurisdiction. When rejecting or modifying such conclusion of law or interpretation of administrative rule, the agency must state with particularity its reasons for rejecting or modifying such conclusion of law or interpretation of administrative rule and must make a
finding that its substituted conclusion of law or interpretation of administrative rule is as or more reasonable than that which was rejected or modified. Rejection or modification of conclusions of law may not form the basis for rejection or modification of findings of fact. The agency may not reject or modify the findings of fact unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law. The agency may accept the recommended penalty in a recommended order, but may not reduce or increase it without a review of the complete record and without stating with particularity its reasons therefor in the order, by citing to the record in justifying the action.
(Emphasis added).
CONCLUSIONS OF LAW
Pursuant to section 393.067(1), F.S., “The agency may revoke or suspend a license or impose an administrative fine, not to exceed $1,000 per violation per day, if: (a) The licensee has: 3. Failed to comply with the applicable requirements of
this chapter or rules applicable to the licensee.”
Sections 393.13(3)(a) and (g), F.S., known as the Bill of Rights of Persons with Disabilities, reads as follows:
Persons with developmental disabilities shall have a right to dignity, privacy, and humane care, including the right to be free from abuse, including sexual abuse, neglect, and exploitation.
. . .
(g) Persons with development disabilities shall have a right to be free from harm, including unnecessary physical, chemical, or mechanical restraint, isolation, excessive medication, abuse, or neglect.
As described in paragraphs 2, 4 through 5, 7 through 8, 10 through 11, and 13 through 14 of this Final Order, there were five separate instances where Hidden Havens’ staff denied residents’ rights to privacy and humane treatment. This includes yelling and cursing at residents, dragging a resident out of the van and onto the ground, struggling with and upsetting a resident, failing to intervene when a resident was engaging in self-injurious behavior, and allowing residents to disrobe and remain naked in a common area without intervening.
Rule 65G-2.009(1)(d), Florida Administrative Code, states:
The [licensed] facility shall adhere to and protect resident rights and freedoms in accordance with the Bill of Rights of Persons with Developmental Disabilities, as provided in section 393.13, F.S., [sic] Violations of section 393.13(3)(a), F.S., relating to humane care, abuse, sexual abuse, neglect, or exploitation and all violations of section 393.13(3)(g), F.S., shall constitute a Class I violation.
Rule 65G-2.0041(4)(a)2. allows the Agency to penalize Class 1 violations with a moratorium on admissions; suspension, denial, or revocation of the license; nonrenewal of licensure; or a fine of up to $1,000 dollars per day per violation.
In addition, Rule 65G-2.009(1)(a)1. and (6)(a) reads as follows with respect to implementing a resident’s support plan and supervising residents:
(1) MINIMUM STANDARDS. Residential facility services shall ensure the health and safety of the residents and shall also address the provision of appropriate physical care and supervision.
(a) Each facility shall:
1. Facilitate the implementation of client support plans, behavior plans, and any other directions from medical or health care professionals as applicable,
. . .
(6) RESIDENT SUPERVISION.
(a) Each facility must provide the level of supervision necessary to ensure that residents are protected from harm and that a safe and healthy living environment is created and maintained. Direct service providers must be given specific information and strategies to provide such an environment for all of residents of the facility. To the maximum extent possible, however, the facility shall respect the rights of residents to privacy and self-determination.
Respondent violated Rule 65G-2.009(1)(a)1. when staff failed to implement a resident’s client support plan by intervening when she engaged in self-injurious behavior. Recommended Order at ¶ 57; see also supra ¶ 14. According to Rule 65G- 2.009(1)(g), this is a Class III violation.
Respondent also violated Rule 65G-2.009(6)(a) by failing to supervise residents to ensure that they were protected from harm and their privacy rights were respected. Recommended Order at ¶ 58. According to Rule 65G-2.009(6)(c), this is a Class I violation.
Rule 65G-2.009(8)(d)1. and 3. reads as follows:
(8) BEHAVIORAL INTERVENTIONS AND RESPONSES TO BEHAVIORAL ISSUES INVOLVING RESIDENTS.
. . .
(d) The following responses are strictly forbidden:
1. Physical or corporal punishment that includes but is not limited to hitting, slapping, smacking, pinching, paddling, pulling hair, pushing or shoving residents;
. . .
3. Verbal abuse such as cursing at residents, using slurs or derogatory names, or screaming[.]
Respondent violated Rule 65G-2.009(8)(d)1. when staff dragged a resident out of the transport van, allowing her to fall to the concrete walkway on her hands and knees. Recommended Order at ¶ 60; supra ¶ 5. According to Rule 65G- 2.009(8)(d), this is a Class I violation.
Respondent violated Rule 65G-2.009(8)(d)3. when staff screamed and cursed at residents to get out of the transport van. Recommended Order at ¶ 61; supra ¶ 2 and 4 - 5. According to Rule 65G-2.009(8)(d), this is a Class I violation.
Respondent also violated Rules 65G-2.009(6)(a) and 65G-2.009(8)(d)1. when staff screamed at and engaged in a tug-of-war with a resident to wrestle a cell phone from her possession. Recommended Order at ¶ 64; supra ¶ 7 - 8. This constitutes a Class I violation under both rules.
With respect to paragraphs 16 through 18 of this Order, Rule 65G-2.004 provides that a licensee must develop and submit to the Agency a CAP within 15 days following the receipt of a Notice of Noncompliance (“NNC”). The licensee’s response to the NNC or ROM letter must specify the actions the facility will take to correct each of the identified violations and comply with the applicable licensing requirements, the name of the staff person(s) responsible for completing each action, and a timeframe for accomplishing each action. Id. The Agency will reject any CAP that fails to identify that information. Id. Further, failure to comply with the CAP shall result in the imposition of disciplinary action. Id.
Rule 65G-2.0041(3)(d) provides that “[f]ailure to complete corrective action within the designated timeframes may result in revocation or non-renewal of the facility’s license.”
As described in paragraphs 16 through 18 of this Order, Respondent failed, after notice of the violations and an opportunity to cure, to fully implement an Agency-approved CAP relating to violations reported on or around February 14, 2019; did not submit any CAP relating to the April 1, 2019 notice of noncompliance; did not timely submit a CAP relating to the April 19, 2019 notice of noncompliance; and did not submit a complete CAP relating to the December 18, 2019 notice of noncompliance.
Collectively, Respondent is responsible for at least five distinct Class I violations, each of which may be penalized with license revocation, as well as a Class III violation. In addition, Respondent repeatedly failed to comply with requirements pertaining to correcting these deficiencies, which is also grounds for the Agency to revoke a residential facility’s license.
Based on the gravity and repetition of Respondent’s violations and failure to adequately address them, the Agency concludes that revocation of Hidden Havens’ license pursuant to section 393.0673(1)(a)3., Florida Statutes, is appropriate.
Trevor Suter, Esq. Veronica Hodges
Agency for Persons with Disabilities Sunnyskies Support Service, Inc. 4030 Esplanade Way, Suite 380 1331 Banbridge Drive
I HEREBY CERTIFY that a copy of this Final Order was provided by regular US or electronic mail to the above individuals at the addresses listed on February 15, 2021.
Danielle Thompson, Esq. Agency Clerk
