STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LYDIA MENDEZ, )

)

Petitioner, )

)

vs. ) Case No. 85-3286

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Consistent with the Notice of Hearing furnished the parties herein by the undersigned on October 17, 1985, a hearing was held in this case before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings in Orlando, Florida on December 6, 1985. The issue for consideration was whether the Home Health Care for the Elderly subsidy payments the Petitioner was receiving should have been terminated because of her failure to provide proper supervision to the individuals on whom the payments were based.

APPEARANCES

For Petitioner: Lydia Mendez pro se

645 W. 14th Street Apopka, Florida 32703

For Respondent: Douglas Whitney, Esquire

General Counsel HRS District Seven

400 West Robinson Street Orlando, Florida 32801

BACKGROUND INFORMATION

On May 21, 1985, HRS District VII, by letter, notified the Petitioner that the subsidy payments she had been receiving for two individuals living in her home under the Department of Health and Rehabilitative Service's (DHRS) Home Care for the Elderly program were being cancelled effective June, 1985. Mrs. Mendez was also advised that if she desired to appeal that determination, she could do so within 30 days. Thereafter, on

May 28, 1985, by letter, she did just that. The file was forwarded to the Division of Administrative Hearings some four months later, arriving on September 24, 1985, with the request that a Hearing Officer be appointed and on October 17, 1985, the undersigned noticed the case for hearing.

At the hearing, Petitioner testified in her own behalf and introduced Petitioner's Exhibits 1 through 3. Respondent presented the testimony of Barry B. Brown, Supervisor of Aging and Adult Services in Orange County for DHRS Amy Wilson, a direct service aide with the agency Henry McLaulin, a Human Services Counselor II/investigator for DHRS District VII and Elcia Kirby, an interpreter and also introduced Respondent's Exhibits A through C. Neither party submitted proposed Findings of Fact.

FINDINGS OF FACT

1. For a period of time prior to June, 1985, Petitioner, Lydia Mendez, had been providing care in her home for her father, Leoncio Hernandez, age 90, and her husband, Carmelo Mendez, age

1. Because of this, she was enrolled in and receiving case subsidies monthly under DHRS' Home Care for the Elderly Subsidy Segment program outlined in Section 410.03-410.06, Florida Statutes, and Chapter 10A-9, F.A.C.

   
   

   1. Under this program, recipients of benefits are to be visited periodically on an unannounced basis in order to insure that the requirements of the program were being met. Records of District VII reflect that on November 20, 1984, a visit of Petitioner was conducted for the normal six months review and at the time the counselor arrived at the premises, Mrs. Mendez was not at home. Mr. Mendez, Petitioner's husband, called his wife at a neighbor's residence and she arrived at home shortly thereafter. Mrs. Mendez, who had been absent from the home on two previous visits when the counselor arrived was advised again of the requirement to provide supervision and of the DHRS guidelines regarding provider absences from the home. At that point, Mrs. Mendez advised the counselor that when she was gone, it was to run brief errands and never for more than an hour or two. Most of the time when she was gone, she was visiting her daughter in the immediate neighborhood. Nonetheless, the counselor advised Mrs. Mendez, on November 20, that if she were not present on the next visit, steps would be taken to close the file and terminate the payments. When a follow-up visit was made on December 21, 1984, a month later, Mrs. Mendez was present and there was no irregularity.

   2. When the nine month review was conducted on February 28, 1985, Mrs. Mendez was not at home and the counselor was told by Mr. Mendez that she had gone to the store. The counselor at this

      time, Annie Wilson, returned to the premises on March 8, approximately one week later, and at that time, Mrs. Mendez was properly at home.

      
      

   3. The records also reflect that on May 15, 1985, when the yearly review visit was made, Mrs. Mendez was again not at home but at her daughter's house around the corner. When called by her husband, by phone, she returned within a few minutes. When this was reported to Mr. Brown, he determined that a formal investigation was required and consistent with this determination, he directed Henry McLaulin to investigate.

      
      

   4. Mr. McLaulin went to the Mendez home at approximately 2:00 p.m. on May 20, 1985. When he arrived, Mr. Mendez and Mr. Hernandez were alone at the house which was found to be in good condition and quite clean. Mr. Mendez also appeared clean and adequately groomed. Through an interpreter, he contended that he was in good health and had no physical complaints. Mr. Mendez appeared to be oriented as to time, place and person. His intellectual functioning and insight were adequate and when questioned by the investigator as to what actions he would take in the case of fire, Mr. Mendez indicated he would get Mr. Hernandez out of the house and request the neighbors to call the fire department because of his language problems.

      
      

   5. Mr. Hernandez, Mrs. Mendez' father was also clean and adequately groomed and was fully ambulatory. He, however, was totally disoriented as to time, place, and person, and his memory and intellectual functioning were greatly impaired, and it was clear that he needs supervision since he is unable to make decisions regarding his safety and wellbeing. After Mr. McLaulin had talked with Mr. Mendez for about 35 to 40 minutes, Mrs. Mendez returned to the house.

      
      

   6. In the case summary on his May 20th home visit, Mr. McLaulin indicated that the case plan was to assess both Mr. Mendez and Mr. Hernandez for possible neglect. He concluded that there was no evidence of neglect of Mr. Hernandez or Mr. Mendez, and no follow-up visit was required.

      
      

   7. A review of the DHRS records kept on this case reflects an entry on May 16, 1985, four days before the home visit, which reads:

      
      

      Mrs. Mendez was contacted by this counselor's supervisor, B. Brown. Mr. Brown explained the program requirements regarding supervision to the client in this program.

      He further stated that this case would be terminated due to a lack of adequate

      supervision to the client. Provider expressed the desire to appeal this case and may request a hearing after she receives formal notification of case closure. A letter will be written to provider regarding cancellation of the subsidy grant.

      
      

   8. In fact, even though Mr. McLaulin's report dated subsequent to this entry clearly revealed there was no evidence of neglect on May 21, 1985, Mr. Brown and Ms. Messing sent Mrs. Mendez a letter which, based on the May 16, 1985 telephone conversation, notified her that the subsidy payments she had been receiving would be cancelled effective June, 1985 on the basis of non-compliance with the Home Care for the Elderly regulations relative to providing supervision. From the above, it is clear that Mr. Brown had made up his mind to cancel the subsidy payments that Mrs. Mendez was receiving before he ever received his investigator's report and that when he did receive it, he ignored it even though it clearly indicated that the purpose and intent of the program were being fulfilled by Mrs. Mendez.

      
      

   9. Mrs. Mendez, who speaks limited English and who testified through an interpreter, indicated that she takes care of both her 88 year old husband and her 90 year old father on an income which is made up of the social security payments of the three individuals exclusively, alieunde the subsidy payment in issue here. Her father was in a nursing home for two and a half years prior to the death of her mother and during that time, she worked harder to take care of him than when he is with her. As a result, she does not want to put him in a nursing home again and does not feel that it is necessary.

      
      

   10. Mrs. Mendez was receiving $95.00 per month in subsidy payments for both her husband and her father. The three of them live alone in the house and there are times when it is necessary for her to get out of the house to buy food and run other errands such as going to the bank or post office. Admittedly, on several occasions, when the counselor came to conduct the home visits, she was not at home. Regardless, she never left the house for more than an hour or two and on most occasions when she was not present, she was visiting her daughter who lives around the corner and Mr. Mendez was able to reach her by telephone and have her home within a few moments. In fact, both Ms. Davis and Mr. McLaulin indicated that of the visits they made wherein they found Ms. Mendez absent, she always returned within a few minutes of their arrival.

       
       

   11. As was stated by Mr. McLaulin, neither Mr. Hernandez nor Mr. Mendez showed any evidence of neglect. The home kept by Mrs. Mendez was clean and in good repair and both individuals

       were well fed and in good health as far as Mrs. Mendez could provide.

       
       

       CONCLUSIONS OF LAW

       
       

   12. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding.

       
       

   13. Mrs. Mendez' subsidy payments were cancelled by Respondent agency on the basis that she failed to provide the proper supervision of the clients under her care as called for in Section lOA-9.06(4), F.A.C. which requires that the provider must:

       
       

       Be physically present to provide services and supervision for the recipient(s) or have alternate arrangements planned whereby a mature, responsible adult person(s) will provide the services. During the temporary absence of the provider and during the waking hours when the recipient is active, the well being of recipients shall be monitored by personal observation as appropriate for the recipient's functional dependency status but not less frequently than once every two hours.

       
       

   14. The February 5, 1985 letter from Ms. Wilson of DHRS to Mrs. Mendez, which outlines the provider's responsibility, provides at subparagraph 3:

       
       

       For absences from the home not exceeding two hours, arrangements will be made for a telephone call or visit from a close friend or neighbor to monitor the elderly individual.

       
       

   15. Here the evidence shows that admittedly Mrs. Mendez was not present on several occasions when the counselor/investigator came to pay either a home visit or conduct the investigation directed by Mr. Brown. In each case, however, the evidence also shows that Mrs. Mendez either returned unbidden within 30 minutes or so or, was immediately returned by a telephone call from her husband to her at her daughter's house around the corner. It is also significant to note that the evidence clearly indicates Mr. Mendez, though not fluent in English, was alert, oriented, and capable of getting around without assistance. He was able to summon his wife by telephone when the counselor came and upon questioning by Mr. McLaulin, indicated a sure awareness of the

       appropriate steps to take in case of an emergency. Even though he was a recipient of a subsidy payment, nonetheless, he was capable of and did render short term supervision to Mr. Hernandez in the absence of the provider, Mrs. Mendez. All of this was clearly determined by Mr. McLaulin when he wrote his investigation report after the May 20, 1985 visit.

       
       

   16. It is clear that though Mrs. Mendez may have, debatably, violated the letter of the regulation, she certainly did not violate the spirit of the regulation. There is no justifiable basis for having cancelled Mrs. Mendez' subsidy payments on behalf of Mr. Hernandez and Mr. Mendez under the circumstances here.

RECOMMENDATION

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

RECOMMENDED that subsidy payments on behalf of Mr. Hernandez and Mr. Mendez be immediately restored to Mrs. Mendez and that Mrs. Mendez be reimbursed for the payments that were not received due to the improper cancellation in June, 1985.

RECOMMENDED in Tallahassee, Florida this 6th day of January, 1986.

ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 6th day of January, 1986.

COPIES FURNISHED:

Mrs. Lydia Mendez 645 West 14th Street

Apopka, Florida 32703

David Pingree, Secretary Department of Health and

Rehabilitative Services Tallahassee, Florida 32301

1323 Winewood Boulevard Douglas Whitney, Esquire General Counsel

HRS District Seven

400 West Robinson Street Orlando, Florida 32801

Docket for Case No: 85-003286

Orders for Case No: 85-003286