vs.
Respondent.
) Case No. 07-1721
Pursuant to notice, a final hearing was conducted in this case on June 14, 2007, via video teleconference with sites in Tallahassee and Tampa, Florida, before Administrative Law Judge (ALJ) R. Bruce McKibben of the Division of Administrative
Hearings (DOAH).
For Petitioner: Bruce G. Kaufmann, Esquire
Bruce G. Kaufmann, P.A. 1564 Oakadia Lane
For Respondent: Raymond R. Deckert, Esquire
The issue in this case is whether Petitioners' application for licensure of a group home should be approved or denied.
Petitioners filed an application for licensure of a group home with the Department of Children and Family Services (DCF) on July 30, 2006. The application was deemed incomplete, and Petitioners were asked to submit additional information and documentation. Letters were sent from DCF to Paul Bell, the applicant's representative, on a number of occasions. DCF then inspected the proposed group home site in October and
November 2006. After review of the application submissions and the facility itself, DCF denied the application for licensure.
Petitioners timely filed a request for administrative hearing, which was then forwarded to DOAH on April 17, 2007. At the final hearing, Petitioners offered the testimony of three witnesses: Paul Bell, operations officer for the corporate applicant; Dr. James Crowe; and Donna Crowe. By stipulation, all 23 of Petitioners' exhibits were admitted into evidence.
Respondent had one witness, Christine Emden, testify at the final hearing. All of Respondent's 12 exhibits were admitted into evidence by stipulation of the parties.
The parties advised the undersigned that a transcript would be ordered of the final hearing. They were given ten days from
the date the transcript was filed at DOAH to submit proposed recommended orders. The Transcript was filed at DOAH on July 5, 2007, making the proposed recommended orders due on Monday,
July 16, 2007. Respondent timely filed its Proposed Recommended Order. Counsel for Petitioners called DOAH on the due date and expressed a desire for an extension of time inasmuch as he had not timely received his copy of the Transcript of the final hearing from the court reporter due to an address error. He was advised to obtain consent of opposing counsel before the undersigned would rule on his request. Petitioners filed a Proposed Recommended Order via fax on July 17, 2007, which was accepted, making the request for additional time appear moot.
However, by fax dated July 19, 2007, Petitioners' counsel indicated that he had received consent from Respondent to file an "amended proposed order" on or before July 23, 2007. The ALJ approved the agreement and gave Petitioners two additional days to update their Proposed Recommended Order if deemed necessary. Petitioner's [Amended] Proposed Recommended Order was faxed to DOAH on July 24, 2007, but was accepted. Respondent did not further amend its Proposed Recommended Order. Both parties' proposed findings of fact and conclusions of law were considered in the preparation of this Recommended Order.
West Coast Family Services, Inc. (West Coast), is a newly formed not-for-profit corporation, established primarily for the purpose of establishing group homes for underprivileged children. Its corporate officers are Paul Bell, James Crowe, and Barbara Walker. There are five members on the corporate board of directors. West Coast was formed in 2006. Its address is 8463 Park Boulevard, Seminole, Florida, which is where the group home at issue in this proceeding (the "Facility") is to be established.
Paul Bell is a corporate officer of West Coast, is the proposed operations officer for the Facility, and is the person primarily responsible for preparing the licensure application. Bell was also the key witness for Petitioners during its case in chief at final hearing.1
James Crowe is Bell's partner and anticipates working at the Facility as a counselor, direct care worker, and owner. His wife, Donna Crowe, is also an officer of West Coast and may become an employee of the Facility.
DCF is the state agency responsible for, inter alia, licensing and monitoring group homes for children in the State of Florida. The Suncoast Region of DCF was responsible for the application at issue.
When Bell first contacted DCF about opening a group home for children, he was given information about the licensure application procedures in a letter. Due to an error in the address, the letter was re-sent to Bell some two months later. Bell prepared the licensure application package in accordance with the instructions, to the best of his ability, and submitted it to DCF. Both parties agree there is a need for a group home in Pinellas County.
By letter dated October 9, 2006, DCF notified Bell that several items needed to complete the application were still outstanding. (There is some dispute as to whether West Coast received some correspondence from DCF due to an incorrect zip code on the letters. Bell testified at final hearing that he knew what information was missing from his application based on face to face meetings with DCF personnel; so, whether he received the letters or not is not extremely pertinent.)
After the October 9, 2006, letter, Bell submitted additional documentation to DCF in an attempt to complete the application. Letters outlining omissions were sent to Bell by DCF on October 9, October 24, October 25, and November 2, 2006. The latter correspondence was hand-delivered to Bell at the DCF offices, although Bell denied receiving it by hand. The DCF witness' testimony as to this fact was more credible.
Finally, not being satisfied with the materials submitted by West Coast, DCF issued a denial letter outlining
23 items in the application which fell short of licensure requirements. Those items form the basis for West Coast's challenge and will be addressed individually below. The items (in italics) and West Coast's responses are as follows:
Item 1 -- West Coast did not provide terms of office for members of its governing body. West Coast ultimately provided a comprehensive list of the governing body, the terms for each member, and a statement that each member was annually renewed unless otherwise noted.
Item 2 -- The dining area at the Facility was
inadequate. West Coast did not have a sufficient number of dining room chairs at the Facility during the final inspection by DCF. The single dining area designated for seating six children was quite small. However, there are two separate dining areas and an additional seating area at a breakfast bar. Chairs for the Facility could be quickly obtained; but, at no time during the inspection of the Facility were the chairs on site.
Item 3 -- Emergency telephone numbers were not posted
at the Facility. The emergency numbers were admitted into evidence, and Bell's testimony that they have now been posted at the Facility is credible.
Item 4 -- Unsafe transportation, as evidenced by a lack of insurance and registration for Bell's auto and an expired driver's license. Although not provided at the time of the application, Bell was able to produce a valid driver's license, insurance card, and registration at the time of final hearing. However, there are other individuals who will be transporting children to and from the Facility. Although currently designated as volunteers rather than staff, there is evidence that the individuals are licensed to drive and have undergone background screening. Bell's driving record, which included citations for driving with a suspended license, an expired license, and no current tag, is a legitimate concern by DCF.
Item 5 -- Authorized menus for six months must be provided. West Coast initially provided a menu for one week, hand-written and extremely generic in nature, in response to the Department's request. West Coast later provided menus for one month's operation at the Facility. The menus were not signed or approved by a certified dietician. The application did not address whether the menus were meant for both staff and children. Although there was a stated intent by West Coast to participate in the Florida Department of Education food program, no such participation currently exists. West Coast did not
retain menus for a six-month period because the Facility had not been open for six months.
Item 6 -- Emergency policies and procedures were deficient. West Coast initially submitted a hand-written policy entitled "Transportation." It is scant in content and does not address how emergency situations will be handled other than that staff will respond and transport as necessary. As Bell testified at final hearing, in an emergency situation, "I would call 911, sir." A revised policy was later submitted which designates which staff and/or volunteers may be available or on call, but the policy still provides no specific guidance concerning how emergency care will be provided. The policy includes names of persons currently identified as "volunteers" rather than staff.
Item 7 -- Inadequate temporary isolation room. West Coast initially designated a room that appeared to be part of the normal ingress and egress for the home. When that room was rejected by DCF, a room in the rear of the Facility was designated. However, by the time the new room was selected, DCF had already denied the application. Therefore, no further inspection of the Facility was made to determine if the designated isolation room would be proper. Based on Bell's description of the room, it appears to meet the requirements for an isolation area. However, the room does contain a stove and
refrigerator, raising concerns about contamination by an infected child. A schematic was submitted to show the location of the new isolation room, but it is questionable in nature.2
Item 8 -- Absence of linkages and cooperative
agreements with community agencies. West Coast presented letters from two community agencies expressing an interest in working with the Facility. Neither letter was a final agreement, nor did they address costs, kinds of services or other provisions. Rather, the letters and statements indicate a willingness on the part of West Coast to develop such agreements in the future.
Item 9 -- Incident Reporting Procedures are deficient.
The application contained an incident reporting policy accompanied by an incident report form. The policy and form appear generally relevant to incident reporting issues; however, they appear to be generic forms, some of them addressing an organization other than West Coast. The policy statement refers to forms and other policies which are not attached. It mentions regional personnel, but no mention of a regional hierarchy for West Coast appears in the record. It appears to be a policy copied from some other agency, but without the requisite tie-in to or adoption by West Coast.
Item 10 -- Child abuse and neglect statements by staff are missing. West Coast went to great lengths to explain that
it currently has no staff. However, Bell, Crowe, and several "volunteers"3 were identified as potential staff for the Facility. Bell signed a statement indicating he had read and understood child abuse and neglect laws. There is no indication whatsoever as to which laws he read or whether the statutes were responsive to the cited rule. No other staff member signed a statement.
Item 11 -- Absence of community activities and services. West Coast submitted the aforementioned letters of interest from two community groups. It also provided some additional information about what those groups do. Although its policy statement says West Coast has made arrangements with local groups, there was no credible evidence that such arrangements have been made.
Item 12 -- Inadequate or incomplete recreation, leisure activities, and work experience. The scant information provided by West Coast indicates an intention to involve the children in activities. The Facility obviously does not yet have any children living there; so, it is impossible to generate a totally accurate plan of activities. However, the schedules lack substance. They do not indicate an understanding of the need for specific, understandable guidelines which can be read and followed by staff.
Item 13 -- Insufficient discipline, control and punishment policies. The policies submitted by West Coast do address these issues. They do not, however, explain or provide sufficient guidance for either children or staff. Rather, they are broad, general policies which need further development.
Item 14 -- Staff qualifications. West Coast provided
letters of recommendation, copies of college diplomas, and related information for Bell and Crowe. No such information was presented for other staff because no other staff has been hired. There is no way to ascertain whether the people West Coast intends to hire will fulfill the requirements of the rule. The information on Bell and Crowe was deficient in that it did not include employment confirmation and did not include a personnel file as required by rule.
Item 15 -- Staffing Requirements. The staffing schedule initially filed by West Coast as part of the application indicates two persons on day shift and one person on the second and third shift, Monday through Friday. For weekends, there would be one person on first shift, two on second shift, and one person on third shift. A supplemental "Staffing Requirements" policy was submitted. It designates which potential staff members would be on call, but still fails to adequately demonstrate that sufficient trained staff will be available on all shifts. Inasmuch as no specific persons have
been hired, there is no way to ascertain whether the anticipated staff is qualified, certified in first aid, or otherwise able to perform its duties. West Coast expresses its intent to take some children out for movies on weekends. However, it does not address how the two groups (those at home versus those who go out) will be supervised at the appropriate ratio.
Item 16 -- Inadequate budget for facility and insufficient funds to operate. The budget submitted by West Coast in its application addresses four categories: Rent, Utilities, Food and Salary. The total monthly budget was initially estimated at $3,500, although the Board of Directors included in the application a statement that a budget of $3,000 per month would be sufficient. The proposed budget is about one-half of the typical budgets for most six-bed facilities licensed by the state. The budget does not include funds for entertainment, maintenance, supplies, payroll taxes, transportation, or other costs associated with running a group home. West Coast then submitted a supplemental budget estimating $8,000 per month in expenses. That budget addressed the same four categories mentioned in the original budget, but increased the amounts for each category. The new budget still failed to address all the ancillary costs of operations. West Coast failed to establish an understanding of the costs of operating a group home. West Coast did provide some evidence of
potential funds for operating over a six-month period. The saving account of Mrs. Crowe was designated for use by West Coast. The unanswered question at final hearing was whether that account is dedicated solely for the Facility or whether the funds can be used for other purposes. A third party pledged his home as collateral, but that source of funds is not liquid in nature nor was there any non-hearsay evidence concerning outstanding debt on the property. Another person pledged her state retirement funds as collateral, but there was no credible, non-hearsay evidence that such funds were liquid and available.
Item 17 -- Admission Application. West Coast submitted an admissions package that minimally met all the requirements of the rule.
Item 18 -- Orientation of children. The policies and
procedures submitted by West Coast, while not extremely substantive in nature, appear to meet the minimum requirements of the rule.
Item 19 -- Failure to meet Food Service requirements.
The menu submitted by West Coast was not approved by a registered dietician. West Coast did not designate who would be in charge of overall management of food services, but did express its intent to participate in the Department of Education's Food and Nutrition Management Program, an acceptable
alternative. As of the date of the final hearing, no such arrangements had been made with that program.
Item 20 -- Health Care Plan is deficient. West Coast provided a supplement to the application outlining a health care policy in an effort to meet the rule requirements. There is an absence of trained health personnel on staff, but that is due to the fact that West Coast has not yet hired any staff. One of the owners, Bell, is trained in CPR, but no other persons could fill the role at this time. The health care plan includes visits to doctors, dentists, and eye-care professionals, but does not indicate how the children will be transported and supervised during those visits. Mrs. Crowe is listed as a nurse on staff who will evaluate the children regularly, but she has not been hired as an employee.
Item 21 -- Lack of sufficiently trained personnel.
Because it has not yet hired any staff, West Coast has not established written policies for recruitment, retention and effective performance of qualified personnel. It is impossible to determine whether there is an understanding of this requirement due to the lack of information supplied by West Coast. The sparse information submitted with the application does not satisfy the rule requirements.4
Item 22 -- Job Functions and Staff Qualifications fail to satisfy requirements. The staffing information submitted by
West Coast is woefully deficient in content and completeness. There is no evidence that any staff have been hired or that proposed staff meet the requirements of the rule. Educational records for Bell and Crowe indicated training for those individuals. However, there is no correlation between their educational backgrounds and their proposed positions with the Facility.
Item 23 -- Staff Development. West Coast provided a policy that minimally met the requirements of the rule.
DCF reviewed and processed the application in a manner consistent with its policies and procedures. There were several meetings between the applicant and the state to discuss deficiencies in the application.5 Despite numerous opportunities to do so, West Coast was not able to adequately respond to the state's requests for additional support.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding pursuant to Section 120.569 and Subsection 120.57(1), Florida Statutes (2006).6
DCF is the state agency charged with the responsibility of licensing, inter alia, group homes for children. Subsection 409.175 (2)(j), Florida Statutes, states:
"Residential child-caring agency" means any person, corporation, or agency, public or private, other than the child's parent or legal guardian, that provides staffed 24- hour care for children in facilities maintained for that purpose, regardless of whether operated for profit or whether a fee is charged. Such residential child-caring agencies include, but are not limited to, maternity homes, runaway shelters, group homes that are administered by an agency, emergency shelters that are not in private residences, and wilderness camps.
Residential child-caring agencies do not include hospitals, boarding schools, summer or recreation camps, nursing homes, or facilities operated by a governmental agency for the training, treatment, or secure care of delinquent youth, or facilities licensed under s. 393.067 or s. 394.875 or chapter 397.
Under Subsection 409.175 (2)(a), Florida Statutes, an "Agency" means a residential child-caring agency or a child- placing agency. Subsection 409.175(4)(a), Florida Statutes,
states:
A person, family foster home, or residential child-caring agency shall not receive a child for continuing full-time care or custody unless such person, home or agency has first procured a license from the department to provide such care. This requirement does not apply to a person who is a relative of the child by blood, marriage, or adoption or to a legal guardian, a person who has received the child from the department, a licensed child- placing agency, or an intermediary for the purpose of adoption pursuant to chapter 63.
Once the department determines that the applicant meets the state minimum licensing requirements, it can issue a
license. § 409.175 (6)(h), Fla. Stat. The requirements for licensure are set forth in Florida Administrative Code Rule 65C-
14.001 through 14.056 (the "Rule").
A state agency is given wide discretion in interpreting statutes or rules with which they are responsible for administering. Interpretations by an agency of its regulations are provided great weight by the trier of fact. See, e.g., Pan American World Airways, Inc. v. Florida Public Service Commission, 427 So. 2d 716 (Fla. 1983); Gerald B. Natelson v. Department of Insurance, 454 So. 2d 31 (Fla. 1st DCA 1984).
West Coast's compliance with the requirements of the following subsections of the Florida Administrative Code
Rule 65C-14 is pertinent to this matter:
14.008(3) -- The building or cottage shall have one or more dining areas large enough to comfortably accommodate the number of persons who are normally served.
While the evidence tends to show that sufficient area is available, it was not ready at the time of inspection due to the absence of chairs. This requirement was not fully satisfied.
14.012(1) -- Vehicles used to transport children shall be maintained in safe operating condition.
DCF's interpretation of this rule that it mandates insurance coverage and valid licenses for drivers is reasonable. This
requirement was not met because of the concern about Bell's driving record and the absence of information for other staff.
14.014(8) -- All facilities shall have written procedures in cases of emergency or life threatening situations including arrangements for emergency transport services for clients. Plans for provision of supervision must be made in cases of emergency when on duty staff are required to accompany a child to a hospital emergency room.
West Coast did not show a substantial understanding of this requirement, and its procedures, as submitted, fail to satisfy the requirement.
14.014(6) -- Provision shall be made for temporary isolation of children with communicable disease. When such isolation is necessary, close supervision shall be provided.
The propriety of West Coast's proposed isolation room could not be verified, thus the requirement was not met.
14.014(7) -- All facilities shall maintain linkages and cooperative agreements with community agencies, out-of-area programs, or individuals for services not directly provided by the agency, including a plan for handling emergency medical and dental needs of clients.
The proposals submitted by West Coast were too speculative to meet the requirements.
14.016 - Incident Notification Procedures.
The procedures proposed by West Coast are generic in nature and probably relate to some other entity. No showing was made that
the applicant had an independent understanding of the requirements relating to incident reporting.
14.017(5) -- The facility shall require each staff member to read and sign a statement which states the child abuse and neglect laws and outlines the staff member's responsibility to report all incidents of child abuse and neglect.
Only one proposed employee had signed a statement that the child abuse laws had been read. There is no credible evidence in the record as to which statutes were reviewed or that other employees had read the statutes. The statement itself does not state the child abuse and neglect laws; it merely says that certain unidentified "Laws of the State of Florida" have been read. This requirement was not met.
14.018(1) -- The facility shall have written policies to involve children in community activities and services. The facility shall arrange for recreational and cultural enrichment and shall provide transportation and supervision as needed for use of community resources to assure that resident children are allowed to become a part of the community. Runaway programs will be exempted from this section.
As stated previously, the linkages with community groups has not yet been formalized. No contracts exist, and, therefore, the requirement was not met.
14.019(1) -- The facility shall have a written plan for a range of indoor and outdoor recreational and leisure activities. Such activities shall be based on the group
and individual interests and needs of the children in care.
Although no children are yet living at the Facility and so a program tailored to individual needs cannot be met, the schedule of activities provided by West Coast is too generic and does not demonstrate an understanding of the rule requirements.
14.021(1) -- The facility shall have written policies on discipline, control and punishment which shall be provided to all children, parent or guardian, staff, agencies and the department. The policies for discipline and control shall emphasize positive, instead of punitive,
methods. . . .
The proposal submitted by West Coast lacks sufficient substance and guidance to meet this requirement.
14.023(1) -- The facility shall employ personnel who have demonstrated qualities which enable them to work well with children in group care, such as: The capacity to give and receive affection, sensitivity, flexibility, emotional maturity, the ability to deal with frustration and conflict, a sense of humor, and a capacity to respect persons with differing lifestyles and philosophies.
14.023(2) -- The facility shall employ personnel who have knowledge and an understanding of discipline and ways of helping a child build positive personal relationships.
14.023(3) -- The facility shall perform screening and background checks . . .
14.023(5) -- The facility shall have a personnel file for each employee . . .
West Coast has not yet hired personnel to staff the Facility, thus it is impossible to measure their compliance with this requirement. Despite remonstrations to the contrary by West Coast, such information is necessary to obtain a license.
14.024(1) -- The facility shall have adequate staff coverage at all times to provide for the services identified in the agency's statement of purpose.
14.024(2) -- The facility shall develop and follow a written staff to child ratio formula. . . .
14.024(3) -- The facility shall designate a staff member on the premises to be in charge at all times when children are present.
14.024(4) -- The facility shall have and follow a written plan to provide additional emergency staff when only one staff member is on duty.
The staffing schedules provided by West Coast are deficient in identifying staff and providing for adequate coverage and show a lack of understanding concerning the child-to-worker ratio. The requirement is not met.
14.026(2) -- Funding: The agency shall provide written documentation that it has sufficient funds to meet all requirements for licensure. Facilities beginning operation shall provide evidence of sufficient funding for operation of the program for at least six months.
14.026(3) -- Budget: The agency shall prepare a written budget annually.
The budget submitted by West Coast does not appear adequate. Its source of funds for six-month's operation is questionable. The requirement was not met.
14.051 -- The facility shall assign a staff member to the overall management of the food service. If this person is not a professionally registered dietician, consultation on menu planning shall be obtained at least quarterly from a professionally registered dietician or the local health department. Residential programs participating in the Department of Education's Food and Nutrition Management Program will be considered to have met this requirement.
The menu submitted by West Coast was not done by a registered dietician, nor had the applicant enrolled in the Food and Nutrition Management Program. The requirement was not met.
14.052(1) -- The facility shall have a written comprehensive plan for preventive, routine, emergency, and follow-up medical and dental care for all children and shall ensure that each child has an annual physical and dental examination. . . .
14.052(2) -- The facility shall have at all times a staff member on duty trained to administer first aid and cardiopulmonary resuscitation.
The proposal submitted by West Coast fails to provide the necessary guidance and fails to provide comprehensive plans as required by the Rule.
(1)(a) -- The facility shall have written personnel policies and practices conducive to the recruitment, retention, and
effective performance of qualified personnel. . . .
14.054(2) -- The facility shall have a personnel file for each employee.
The information submitted by West Coast failed to satisfy this requirement.
-- The facility shall employ staff to perform administrative, supervisory, service, and care functions. . . .
To date, West Coast has only "hired" one employee, Mr. Bell. Although Mr. Crowe stated his intent to be on staff, neither he nor anyone else has yet been hired. The Rule requirement was not met.
Of the 23 items identified by DCF in its denial letter, all the items not mentioned above were at least minimally satisfied by information submitted by West Coast.
Based on the information it reviewed, DCF could not determine that West Coast met the minimum requirements set forth in the Rule, thus no license could be issued. West Coast did not demonstrate an understanding of the need to satisfy licensure requirements prior to commencement of operations.
It is clear West Coast would agree to meet all state licensure requirements after it begins operations, but in order to obtain a license, it is necessary to first satisfy all licensure requirements. Based upon the evidence, West Coast does not meet its burden in this case.
RECOMMENDED that a final order be entered by the Department of Children and Family Services denying the application for licensure of a group home to West Coast.
DONE AND ENTERED this 1st day of August, 2007, in Tallahassee, Leon County, Florida.
R. BRUCE MCKIBBEN Administrative Law Judge
Filed with the Clerk of the Division of Administrative Hearings this 1st day of August, 2007.
1/ It was difficult to ascertain whether Bell was fully familiar with all the elements of the application. Bell's attorney continually led Bell through his testimony, suggesting to Bell what he should say. When Bell did testify on cross examination, he seemed only minimally knowledgeable about the specifics of running a group home. Therefore, his testimony was not as credible as it might otherwise have been.
2/ It should be noted that at least four schematics of the Facility were included in the application materials submitted into evidence. See Items 1, 2, 3, and 6. There was an
additional schematic in Respondent's Exhibit 12 as well. However, the floor plans and locations of rooms in those various schematics are not consistent, making it very difficult to ascertain exactly how the Facility is going to be laid out. For example, a kitchen in one version becomes a bedroom in another version, then a laundry in yet another version. The conflicting schematics do not constitute credible evidence.
3/ Throughout the final hearing, persons who were going to be affiliated with the Facility were alternately referred to as either staff, employees or volunteers. It seems, from the inferences made, that some of these persons have volunteered to become employees but have not yet been hired. Upon commencement of their employment with the Facility, they would be regular staff rather than volunteers. As of the date of the final hearing, Bell was the only person designated as an employee already on staff.
4/ In this item and many others, West Coast presented credible testimony as to its future intentions concerning the licensure requirements. West Coast failed to understand and, therefore, failed to establish that it should first meet the requirements so that DCF would be authorized to issue a license for West Coast to commence operations.
5/ There appears to have been approximately 29 times that DCF and Bell communicated in some fashion. Some of the written correspondence from DCF was not properly addressed, but Bell acknowledged that he was made aware of all the deficiencies in the application. West Coast received notice as to what was required, but was unable to satisfy the requirements.
6/ Unless stated otherwise herein, all references to the Florida Statutes shall be to the 2006 version.
Raymond R. Deckert, Esquire Department of Children and
Bruce G. Kaufmann, Esquire Bruce G. Kaufmann, P.A.
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.
