FILED STATE OF FLORIDA October 16, 2020 AGENCY FOR PERSONS WITH DISABILITIES Agency Clerk Agency for Persons with Disabilities AGENCY FOR PERSONS WITH DISABILITIES, Petitioner, v. License Number: 10-2881GH APRIL GROUP HOME, OWNED AND OPERATED BY APRIL GROUP HOME & COMPANY, LLC, Respondent. / ADMINISTRATIVE COMPLAINT The AGENCY FOR PERSONS WITH DISABILITIES, (“Agency”), issues this Administrative Complaint against April Group Home, owned and operated by April Group Home & Company, LLC (or “Respondent”), and states the following as the basis for this complaint: 1. Petitioner is the state agency charged with regulating the licensing and operation of foster care facilities, group home facilities, residential habilitation centers, and comprehensive transitional education programs pursuant to section 20.197 and Chapter 393, Fla. Stat. 2. At all times material to this complaint, Respondent has held a group home facility license issued by the Agency for the following address: 18567 South West 46 Street, Miramar, Florida 33029. 3. April Group Home & Company, LLC. is a registered Florida limited liability company. 4. Section 393.0673, Florida Statutes, sets forth the Agency’s authority for denial, suspension, or revocation of license; moratorium on admissions; and administrative fines. (1) 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: 1. Falsely represented or omitted a material fact in its license application submitted under s. 393.067; 2. Had prior action taken against it under the Medicaid or Medicare program; or 3. Failed to comply with the applicable requirements of this chapter or rules applicable to the licensee; or (b) The Department of Children and Families has verified that the licensee is responsible for the abuse, neglect, or abandonment of a child or the abuse, neglect, or exploitation of a vulnerable adult. COUNT I The Agency re-alleges and incorporates paragraphs one through four as if fully set forth herein. 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. A violation of this subsection shall constitute a Class I violation. Fla. Admin. Code R. 65G-2.009(6)(a). Residents who are not proficient swimmers must always be supervised by sight and sound when they are within 50 feet of any water hazard such as a pool. Access to bodies of water or other water hazards must be restricted when supervision is not available. Supervision must be provided by an adult employee of the facility who is responsible for the resident and certified in first aid and CPR (“cardiopulmonary resuscitation”). Fla. Admin. Code R. 65G-2.007(13)(a). On or about April 14, 2020, R.M., a vulnerable adult resident of Respondent’s April Group Home, was under the care and supervision of Respondent’s group home manager, Irene Diaz. Ms. Diaz allowed R.M. and another resident to enter the home’s swimming pool. A friend of the Respondent, Delia Martinez, who was visiting the home, was the only person present on the pool deck to supervise R.M. and the other resident. Delia Martinez had been residing in April Group Home for approximately two weeks at the time of this incident. Ms. Martinez was not an employee of Respondent, a direct service provider responsible for providing supervision to residents and was not certified in first aid or CPR. Ms. Martinez was not background screened in accordance with section 393.0655, Florida Statutes. Ms. Martinez had direct access to the client’s living areas, to client’s funds and personal property. Although Ms. Diaz knew that R.M. was not able to swim, and this was his first time in the pool since moving into April Group Home, Ms. Diaz left R.M. and another resident in the pool with no employee supervision and no one trained in first aid or CPR present. 11. 12. 13. 14. 15. 16. A few minutes later, Ms. Diaz returned to the pool deck to find R.M. struggling in the water. R.M. was taken to the emergency room and admitted to the hospital, where he remained unresponsive and on life support until he died on April 18, 2020. The Medical Examiner determined that his cause of death was Anoxic Encephalopathy, due to his near drowning. The Agency may revoke a license or impose an administrative fine if the licensee has failed to comply with the applicable requirements of this chapter or applicable tules. § 393.0673, Fla. Stat. Based on the foregoing, Respondent violated Rule 65G-2.009(6)(a), Florida Administrative Code, by failing to 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. Respondent also failed to provide direct service providers with specific information and strategies to provide a safe environment for all residents of the facility, which ultimately resulted in the death of R.M. COUNT II The Agency re-alleges and incorporates paragraphs one through four as if fully set forth herein. 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. A violation of this subsection shall constitute a Class I violation. Fla. Admin. Code R. 65G-2.009(6)(a). Residents who are not proficient swimmers must always be supervised by sight and sound when they are within 50 feet of any water hazard such as a pool. Access to bodies of water or other water hazards must be restricted when supervision is not available. Supervision must be provided by an adult employee of the facility who is responsible for the resident and certified in first aid and CPR. Fla. Admin. Code R. 65G-2.007(13)(a). On or about April 14, 2020, R.M., a vulnerable adult resident of Respondent’s April Group Home, was under the care and supervision of Respondent’s group home manager, Irene Diaz. Ms. Diaz allowed R.M. and another resident to enter the home’s swimming pool. A friend of the Respondent, Delia Martinez, who was visiting the home, was the only other person present on the pool deck. Delia Martinez had been residing in April Group Home for approximately two weeks at the time of this incident. Ms. Martinez was not an employee of 20. 21. 22. 23. 24. 25. Respondent, was not a direct service provider responsible for providing supervision to residents and was not certified in first aid or CPR. Ms. Martinez was not background screened in accordance with section 393.0655, Fla. Stat. Although Ms. Diaz knew that R.M. was not able to swim, and this was his first time in the pool since moving into April Group Home, Ms. Diaz left R.M. and another resident in the pool with no employee supervision and no one trained in first aid or CPR present. A few minutes later, Ms. Diaz returned to the pool deck to find R.M. struggling in the water. R.M. was taken to the emergency room and admitted to the hospital, where he remained unresponsive and on life support until he died on April 18, 2020. The Medical Examiner determined that his cause of death was Anoxic Encephalopathy, due to his near drowning. The Agency may revoke a license or impose an administrative fine if the licensee has failed to comply with the applicable requirements of this chapter or applicable tules. § 393.0673, Fla. Stat. Based on the foregoing, Respondent violated Rule 65G-2.007(13)(a), Florida Administrative Code, by failing to continually supervise a non-swimming resident by sight and sound while in the pool, which ultimately resulted in the death of R.M. COUNT III The Agency re-alleges and incorporates paragraphs one through four as if fully set forth herein. On or about April 14, 2020, R.M., a vulnerable adult resident of Respondent’s April Group Home, was under the care and supervision of Respondent’s group home manager, Irene Diaz. Ms. Diaz allowed R.M. and another resident to enter the home’s swimming pool. A friend of the Respondent, Delia Martinez, who was visiting the home, was the only other person present on the pool deck. Delia Martinez had been residing in April Group Home for approximately two weeks at the time of this incident. Ms. Martinez was not an employee of Respondent, was not a direct service provider responsible for providing supervision to residents and was not certified in first aid or CPR. Ms. Martinez was not background screened in accordance with section 393.0655, Fla. Stat. Although Ms. Diaz knew that R.M. was not able to swim, and this was his first time in the pool since moving into April Group Home, Ms. Diaz left R.M. and another resident in the pool with no employee supervision and no one trained in first aid or CPR present. 26. 27. 28. 29. 30. 31. 32. 33, 34, 35. A few minutes later, Ms. Diaz returned to the pool deck to find R.M. struggling in the water. R.M. was taken to the emergency room and admitted to the hospital, where he remained unresponsive and on life support until he died on April 18, 2020. The Medical Examiner determined that his cause of death was Anoxic Encephalopathy, due to his near drowning. On or about April 14, 2020, the Department of Children and Families (“DCF’’) commenced an investigation involving allegations of abuse, neglect or exploitation of R.M. On or about June 12, 2020, DCF closed their investigation with verified findings of inadequate supervision, asphyxiation, and death of a vulnerable adult against the Respondent’s employee Irene Diaz. The Agency may revoke a license or impose an administrative fine if the Department of Children and Families has verified that the licensee is responsible for the abuse, neglect, or abandonment of a child or the abuse, neglect, or exploitation of a vulnerable adult. § 393.0673, Fla. Stat. Based on the foregoing, Respondent violated section 393.0673, Florida Statutes, by being found responsible for the abuse, neglect, or exploitation of a vulnerable adult. COUNT IV The Agency re-alleges and incorporates paragraphs one through four as if fully set forth herein. The licensee must comply with the criminal background screening requirements established in section 393.0655, and chapter 435, Florida Statutes. Also see Florida Administrative Code R. 65G-2.008(2). A violation of this subsection shall constitute a Class I violation. Id. The Agency shall require Level II employment screening pursuant to chapter 435 for any direct service providers and any other person who has access to a client’s living areas, funds, or personal property. § 393.0655(1), Fla. Stat. On or about March 31, 2020, Respondent allowed Delia Martinez to reside in the April Group Home with six vulnerable adult residents. The Respondent failed to ensure that Ms. Martinez had a Level II background screening as required by section 393.0655 and chapter 435, Fla. Stat. Respondent has had prior background screening violations. On or about June 28, 2019, the Agency issued a notice of non-compliance letter to the Respondent because Respondent hired and retained an employee without a Level II background screening. In the notice, the Respondent was notified that additional background 36. 37. 38. 39, 40. 41. 42. screening violations could result in disciplinary action, including the revocation of the facility license. The notice required the Respondent to submit a corrective action plan (“CAP”) within 10 days. The CAP required specific elements, including development and implementation of policies and procedures related to background screening requirements, and not allowing persons without a Level II background screening to have client contact or access to client living areas, funds, or property. Respondent submitted a CAP on or about July 12, 2019. Pursuant to Rule 65G-2.0041(2), Florida Administrative Code, the Agency shall consider the following factors when determining the sanctions for a violation, to include the gravity of the violation; the lack of remedial action being taken by the licensee to correct the violation; whether the violation is a repeat violation; if the licensee willfully committed the violation; and the licensee’s cooperation with the Agency. Fla. Admin. Code R. 65G-2.0041. In addition to violating Florida Statutes, Respondent, after notice and executing the CAP, failed to adhere to its own background screening policies and procedures by allowing an unscreened individual to reside in the group home for two weeks, with direct access to the clients, their living areas, funds, and property. The Agency may revoke a license if the licensee has failed to comply with the applicable requirements of this chapter or applicable rules. § 393.0673, Fla. Stat. Based on the foregoing, Respondent, after notice and opportunity to cure, violated Rule 65G-2.008(2), Florida Administrative Code, by failing to comply with the criminal background screening requirements established in section 393.0655, and Chapter 435, Fla. Stat. COUNT V The Agency re-alleges and incorporates paragraphs one through four as if fully set forth herein. The Governor is responsible for meeting the dangers presented to this state and its people by emergencies. In the event of an emergency beyond local control, the Governor, may assume direct operational control over all or any part of the emergency management functions within this state, and shall have the power through proper process of law to carry out the provisions of this section. The Governor is authorized to delegate such powers as she or he may deem prudent. The Governor may issue executive orders, proclamations, and rules and may amend or rescind them. Such executive orders, proclamations, and rules shall have the force and effect of law. § 252.36(1), Fla. Stat. 43. 44. 45. 46. 47. 48. On or about March 1, 2020, Governor Ron DeSantis issued Executive Order 20-51, directing the State Health Officer to declare a Public Health Emergency due to the COVID-19 novel virus. On or about March 9, 2020, Governor Ron DeSantis issued Executive Order 20-52, declaring a State of Emergency due to the COVID-19 novel virus and designating the Director of the Division of Emergency Management as the State Coordinating Officer, with authority to enter orders as may be necessary to meet the emergency. On or about March 15, 2020, Jared Moskowitz, the State Coordinating Officer with the Florida Division of Emergency Management, issued Order 20-006, prohibiting all individual visitation to group home facilities licensed under chapter 393, Florida Statutes, to prevent the spread of the COVID-19 novel virus to high-risk group home residents. On or about March 31, 2020, Respondent allowed a family friend visiting Florida from Cuba, Delia Martinez, to continually reside in the April Group Home with six vulnerable adult residents, in direct violation of the Florida Division of Emergency Management Order 20-006. Ms. Martinez was still a full-time resident of the home when R.M. was found struggling in the pool on April 14, 2020. The Agency may revoke a license or impose an administrative fine if the licensee has failed to comply with the applicable requirements of this chapter or applicable tules. § 393.0673, Fla. Stat. Based on the foregoing, Respondent violated Rule 65G-2.009(6)(a), Florida Administrative Code, by willfully violating an emergency order prohibiting visitation during a public health emergency, failing to protect residents from harm, and failing to maintain a safe and healthy environment for all residents of the facility. Based on the foregoing and pursuant to section 393.0673, Florida Statutes, the Agency requests that a Final Order be entered that revokes the Respondent’s license or places any less penalty against Respondent’s license as proscribed by law. Dated October 16, 2020 , y! C ——— Trevor Suter, Esq. Senior Attorney Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 Attachments: Notice of Administrative Hearing Rights Copies furnished to: Patricia Gomez April Group Home & Company, LLC 18567 SW 46 Street Miramar, Florida 33029 Rita Castor Regional Operations Manager APD Southeast Region ago agency for persons with disabilities State of Florida Notice of Administrative Hearing Rights For Administrative Complaint You have the right to request a hearing to be conducted in accordance with sections 120.569 and 120.57, Florida Statutes (F.S.), and to be represented by counsel or qualified representative to challenge the administrative complaint. To obtain an administrative hearing, you must file a written request for hearing with the Agency Clerk by 5:00 PM Eastern Time within 21 days of the day that you receive the administrative complaint. Filed with the Agency Clerk means received by the Agency Clerk’s Office. If you fail to file the request for hearing within the 21 days, you waive the right to have a hearing. The request for hearing shall include: 1. Your name, address, e-mail address, telephone number, and facsimile number, if any, if you are not represented by an attorney or a qualified representative; 2. The name, address, e-mail address, telephone number, and facsimile number of your attorney or qualified representative, if any, upon whom service of pleadings and other papers shall be made; 3. A statement requesting an administrative hearing identifying those material facts that are in dispute. If there are none, the petition must so indicate. (Pursuant to sections 120.569 and 120.57, F.S., a disputed issue of material fact entitles you to a formal hearing; if there are no disputed issues of material fact then you are entitled to an informal hearing); 4. A statement of when you received notice of the administrative complaint; and 5. A statement including the file number on the administrative complaint. You must file your request for hearing with the Agency Clerk by hand delivery, express delivery service, U.S. mail, facsimile transmission, or by email at the following address: Agency for Persons with Disabilities Attention: Agency Clerk Filed with the Agency Clerk means received in 4030 Esplanade Way, Suite 335 the Office of Agency Clerk by 5:00 pm on the Tallahassee, FL 32399 due date. APD.AgencyClerk@apdcares.org (850) 922-4556 (phone) Mediation under s.120.573, Florida Statutes, is (850) 410-0665 (fax) not available for this proceeding. Rev. OGC May 19, 2017 http://apdcares.org

Docket for Case No: 20-005180FL