STATE OF FLORIDA

AGENCY FOR PERSONS WITH DISABILITIES

AGENCY FOR PERSONS WITH DISABILITIES,

Petitioner, v.

License No. 4612-6-GA

Dawn Vista Group Home, owned and operated The Caring Place, Inc.,

Respondent.

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ADMINISTRATIVE COMPLAINT

The AGENCY FOR PERSONS WITH DISABILITIES, (“Petitioner” or “Agency”),

issues this Administrative Complaint against Dawn Vista Group Home, owned and operated The Caring Place, Inc. (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, Florida Statutes.

   
   

2. At all times material to this complaint, Respondent has held a group home facility license issued by the Agency for the following address: 12250 Dawn Vista Drive, Riverview, Florida, 33569. The Respondent also has contracted with APD to provide the residents with Medicaid Waiver developmental disability services.

   
   

3. Section 393.0673(1)(a)(3), Florida Statutes, provides that the Agency may revoke a license, or impose an administrative fine if the licensee has failed to comply with the applicable requirements of Chapter 393, Florida Statutes, or the rules applicable to the licensee.

   
   

4. Pursuant to section 393.0673(1)(b), Florida Statutes, the Agency may also revoke or suspend a license or impose an administrative fine if “The Department of Children and Family Services 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.”

   
   

   1

   COUNT I

   
   

5. Section 393.13(3)(g), Florida Statutes, states “[p]ersons with developmental disabilities shall have a right to be free from harm, including unnecessary physical, chemical, or mechanical restraint, isolation, excessive medication, abuse, or neglect.”

   
   

6. Section 393.13(4)(f), Florida Statutes, states that “[e]ach client shall receive humane discipline.”

   
   

7. Section 393.13(4)(h), Florida Statutes, states the following:

   
   

   Clients shall have the right to be free from the unnecessary use of restraint or seclusion. Restraints shall be employed only in emergencies or to protect the client or others from imminent injury. Restraints may not be employed as punishment, for the convenience of staff, or as a substitute for a support plan. Restraints shall impose the least possible restrictions consistent with their purpose and shall be removed when the emergency ends. Restraints shall not cause physical injury to the client and shall be designed to allow the greatest possible comfort.

   
   

8. Rule 65G-2.012(15)(b), F.A.C. requires that “[t]he facility shall take all reasonable precautions to assure that no client is exposed to, or instigates, such behavior as might be physically or emotionally injurious to him/herself or to another person.”

   
   

9. On or about March 6, 2011, Anibal Hernandez-Marrero, a staff member employed by the Respondent, implemented a physical restraint technique upon D.W., a vulnerable adult resident of the group home facility. D.W. sustained scratches to his face and upper back during this procedure.

D.W. was not exhibiting behaviors that would have put himself or others at risk and there was no emergency that warranted the use of the restraint when the restraint was first implemented. Anibal Hernandez-Marrero was acting in the course of his employment for the Respondent at all times relevant to this complaint.

A subsequent abuse investigation conducted by the Department of Children and Families was closed with verified findings of physical abuse.

The incidents described above constitute violations of sections 393.0673(1)(b), 393.13(3)(g), and 393.13(4)(f), Florida Statutes, and Rules 65G-2.012(15) of the Florida Administrative Code.

WHEREFORE, Petitioner respectfully requests imposition of an administrative fine of $1000 for each count, for a total amount of $1,000, upon the Dawn Vista Group Home, owned and operated The Caring Place, Inc., in accordance with Section 393.0673, Florida Statutes.

Dated: September 21, 2011

Jonathan Grabb

Senior Attorney, Office of General Counsel Agency for Persons with Disabilities

4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399-0950

Attachments: Explanation of Rights Election of Rights Form

Copies provided to:

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the above named individuals by U.S. Mail, facsimile, or electronic mail, this 21st day of September, 2011.

Percy W. Mallison, Jr., Agency Clerk Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399-0950

STATE OF FLORIDA

AGENCY FOR PERSONS WITH DISABILITIES ELECTION OF RIGHTS

RESPONDENT:     Dawn Vista Group Home, owned and operated The Caring Place, Inc., Riverview, Florida.

I have read the accompanying Administrative Complaint and Explanation of Rights in this matter, I would like to request a hearing, and I elect for the following hearing option:

• I do not dispute the facts alleged in the Administrative Complaint and wish to be heard on the issue of penalty or conclusions of law. I request an informal hearing pursuant to Section 120.57(2), Florida Statutes. I understand that at that hearing I will be permitted to submit only written or oral evidence in mitigation of the charges or explain why the facts alleged do not constitute a violation of law.

  
  

• I dispute the material facts alleged in the Administrative Complaint and request an evidentiary hearing pursuant to Section 120.57(1), Florida Statutes. Specifically, I dispute the following material facts:

Please be advised this is a legally binding document and contains important information regarding your rights. Should you desire advice regarding your response, you may wish to seek legal counsel before proceeding. By signing this document, you represent you are authorized to act on behalf of the establishment named herein and accept responsibility for compliance with any final order resulting from this action. Failure to complete, sign and return the election of rights form to the agency within 21 days of receipt may constitute a waiver of your right to be heard in this matter and the Agency may commence proceedings without your participation, which may result in penalties against your license. As provided in §393.063(1), Florida Statutes, penalties may include suspension, revocation or denial of licensure, and fines up to $1000 per day for each violation.

Telephone number for contact: Fax            

Signature:                                   Date:                                    

Print Name:                                                                  Title:                                    

MAIL OR FAX THE COMPLETED FORM TO:

Pete Mallison, Agency Clerk

Agency for Persons with Disabilities, 4030 Esplanade Way, Suite 380

Tallahassee, Florida 32399-0950

Fax: (850) 410-0665

You are advised, per Section 120.573, Florida Statutes, that mediation is not available for this action. Please keep a copy of this document for your records.

STATE OF FLORIDA

AGENCY FOR PERSONS WITH DISABILITIES EXPLANATION OF RIGHTS

The enclosed Administrative Complaint charges you with violating one or more provisions of Chapter 393, Florida Statutes, or the rules supplementing that Chapter. If you have questions regarding your response or best course of action, you may wish to seek the advice of competent legal counsel.

Your receipt of this Administrative Complaint packet constitutes service upon you. Your rights under Florida law (Chapter 120, Florida Statutes) are as follows:

You may elect to not dispute the violations alleged in the Complaint and request that a hearing be held to present testimony or documents you wish the Agency to consider in mitigation of the alleged violations prior to disposition of this case. Any penalty levied will be included in a Final Order. If a dispute of material fact arises, the hearing will be terminated and the case referred to the Division of Administrative Hearings.

You may elect to dispute the violations alleged in the Complaint and request a hearing before an Administrative Law Judge, which is an administrative “trial”. You and the Agency may present evidence and witnesses to prove or disprove the facts alleged and submit a written proposed recommended order after the hearing for the Judge’s consideration. Based on the evidence and any proposed recommended orders submitted, the Judge will issue a Recommended Order containing Findings of Fact, Conclusions of Law, and Recommended Penalty, if any. Following review of the Recommended Order, the Agency will issue a Final Order.

An Election of Rights form is included with the Administrative Complaint. The Agency must receive it within 21 days of your receipt of this Administrative Complaint packet. After the Agency determines whether a dispute of material fact exists, it will make arrangements on your behalf for the appropriate hearing. You will receive notice of the date, time, and place of hearing at the address designated by you on your Election of Rights.

IMPORTANT: If the Agency does not receive a completed copy of the Election of Rights form, or any other written response from you, within the 21 days of your receipt of this Administrative Complaint, you may have waived your right to a hearing in this matter and the Agency may proceed against you in this matter without your participation.

Please note, per Chapter 120.573, Florida Statutes, mediation is not available in this action.

Docket for Case No: 11-005136