STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANGENETTE FRASIER,

Petitioner,

vs.

DEPARTMENT OF CHILDREN AND FAMILY SERVICES,

Respondent.

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) Case No. 01-3843

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RECOMMENDED ORDER

Upon due notice, William R. Cave, an Administrative Law Judge for the Division of Administrative Hearings, held a formal hearing in this matter on December 6, 2001, in Lakeland, Florida.

APPEARANCES

For Petitioner: Angenette Frazier, pro se

1914 Indian Trails Court Lakeland, Florida 33813-3725

For Respondent: Jack Emory Farley, Esquire

District 14, Legal Counsel Department of Children and

Family Services 4720 Old Highway 37

Lakeland, Florida 33813-2030 STATEMENT OF THE ISSUE

Should Petitioner's request for enrollment to provide services under the Developmental Services Home and Community- Based Services Waiver be denied?

PRELIMINARY STATEMENT

By letter dated July 23, 2001, the Department of Children and Family Services (Department) advised Petitioner that her application for enrollment to provide services under the Developmental Services Home and Community-Based Services Waiver (Application) had been denied. The reasons for the denial were: "Concerns found in reviewing background screening." Based on the Notice of Right to be Heard provided in the denial letter, Petitioner requested a formal administrative hearing. By a Notice dated October 1, 2001, the Department referred the matter to the Division of Administrative Hearings (Division) for the assignment of an Administrative Law Judge and for the conduct of a formal hearing.

At the hearing, Petitioner testified in her own behalf but did not present any other witness. Petitioner did not offer any documentary evidence. The Department presented the testimony of Linda Brophy. The Department's Exhibits 1-4 were received as evidence. At the conclusion of the hearing, the parties waived their right to file proposed findings of fact and conclusions of law in this case.

Although it was the Department's intent to furnish a court reporter for the hearing, the Department failed to give notice to the court reporting service to provide a court reporter for the hearing. However, rather than continue the hearing, the

parties agreed for the hearing to be recorded electronically. An employee of the Department of Citrus recorded the proceeding using the Department of Citrus's recording equipment. Upon conclusion of the hearing, two tapes were presented to the undersigned by the Department of Citrus employee. In attempting to prepare a Recommended Order in this case, the undersigned discovered that tape number one was a recording of matters not related to the hearing. Tape number two was flawed and could not be understood by the undersigned.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made.

1. Petitioner has three children, one of whom is developmentally disabled. This child is 21 years of age but mentally functions as a one-year old. This child is basically confined to a wheelchair. However, this child can sit on the floor and pull himself around by his arms. The other children, ages two and 12, function normally.

2. Petitioner, with the help of her mother, aunt, and several other caregivers, has been seeing to the needs of this disabled child. The services provided to this child by Petitioner are similar to those services which Petitioner would

   provide to other individuals in need if the Application is granted.

3. In addition to seeing to the needs of her disabled child, Petitioner has been, for approximately 10 years, working as a caregiver providing services, similar to those listed in the Application, to individuals in need outside her home.

4. Presently, Petitioner is working a 12-hour shift seven days a week as a caregiver providing services similar to those services listed in the Application to a person 84 years of age.

5. In order to provide the services applied for, Petitioner will: (a) provide those services to individuals in her home with or without the child being present, when appropriate; or (b) provide those services to individuals outside of her home when necessary and the child can be properly taken care of by another caregiver or is in school. The care of the child, when he is not in school or when Petitioner is not available to care for him, will be provided for by Petitioner's mother, aunt, or husband, or by another qualified caregiver.

6. In the letter denying the Application, the Department states that "Concerns found in reviewing background screening" was the basis for denial. Ms. Linda Brophy, Human Services Program Specialist, the person who apparently made the decision for the Department to deny the Application, testified that she

   reviewed three different "Hotline reports" concerning Petitioner and relied solely on that review to deny the Application.

   Ms. Brophy further testified that she did not interview the person or persons making the reports, the persons or persons who investigated the reports, or Petitioner to determine if the allegations made in the report were in fact true.

7. Hotline Report Number 1999-07785 alleges that the Petitioner's disabled child had been left alone. The facts surrounding this report were: (a) Petitioner had carried the child out to the porch to be picked up by the bus to carry him to school; (b) Petitioner's baby was just inside the door and began to cry; (c) Petitioner stepped back inside the house to care for her baby; and (d) while Petitioner was inside seeing to the needs of her baby, the school bus driver and assistant took the disabled child from the porch and carried him to school.

8. Hotline Report Number 2000-089952 alleges that Petitioner left the disabled child with a caregiver that was not qualified to handle the child. The facts surrounding the report were: (a) Petitioner had left the disabled child with a qualified caregiver; (b) the caregiver had an emergency and left the child with another caregiver but failed to leave instructions as to how to get in touch with Petitioner in the event of an emergency; (c) the child had a seizure; and (d) due to the caregiver not having proper instruction, the child's

   seizure was not timely attended to. However, upon being made aware that the child had suffered a seizure, Petitioner attended to the child. The initial caregiver no longer cares for the child.

9. Hotline Report Number 2001-030947 alleges that while the disabled child was being cared for by Petitioner's mother he suffered a seizure and was taken to the hospital by Petitioner's mother. Petitioner's mother had never witnessed the child having a seizure and was somewhat confused by the event. Apparently, the child very rarely suffers from a seizure, maybe once a year. In any event, Petitioner went to the hospital to see about the child upon being advised that the child had suffered a seizure.

10. There is no evidence that the Department concluded that the allegations contained in any of the above Hotline Reports were founded.

11. The Department did not deny Petitioner's Application based on the lack of qualifications. However, Petitioner has shown that she is qualified to provide those services applied for in the Application. Petitioner has also shown that she is capable of safely and adequately serving individuals to whom she provides those services applied for in the Application.

12. Petitioner intends to operate as an independent vendor, in that she will bill for and be reimbursed only for services personally rendered by Petitioner.CONCLUSIONS OF LAW

13. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding pursuant to Section 120.57(1), Florida Statutes.

14. As an applicant for enrollment as an independent vendor, Petitioner is not required to be licensed or registered but only be approved for enrollment. See Developmental Services Home and Community-Based Waiver, Services Directory, July 2001.

15. The burden of proof is on the party asserting the affirmative of an issue before an administrative tribunal. Florida Department of Transportation v. J.W.C. Company, Inc.,

396 So. 2d 778 (Fla. 1st DCA 1981). Therefore, Petitioner must prove by a preponderance of the evidence that she is qualified and capable of safely and adequately serving individuals to whom she provides those services applied for in the Application in order to be enrolled as a provider. Department of Banking and

Finance, Division of Securities and Investor Protection v. Osborne Stern and Company, 670 So. 2d 932 (Fla. 1996). See Developmental Disabilities Program, Policy Directive #PD 01005, Statewide Provider Enrollment, dated March 23,2001. Petitioner has met her burden to show that she is qualified and capable of safely and adequately serving individuals to whom she provides

those services applied for in the Application, to wit: Respite Care, Personal Care Assistance, In-Home Supports, Homemaker Services, Companion Services, and Chore Services.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Children and Family Services enter a final order approving Petitioner's application for enrollment as a qualified provider under the Developmental Services Home and Community-Based Waiver, Services for the services set forth in the Application.

DONE AND ENTERED this 20th day of December, 2001, in Tallahassee, Leon County, Florida.

WILLIAM R. CAVE

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) 921-6947 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 20th day of December, 2001.

COPIES FURNISHED:

Jack Emory Farley, Esquire District 14, Legal Counsel Department of Children and

Family Services 4720 Old Highway 37

Lakeland, Florida 33813-2030

Angenette Frasier

1914 Indian Trails Court Lakeland, Florida 33813-3725

Peggy Sanford, 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

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 must be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 01-003843

Orders for Case No: 01-003843